Videoconferencing in Removal Hearings: A Case Study of the ...

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EOIR first tested videoconferencing in 1995 as part of a pilot program in three cities: Baltimore, Maryland; Dallas, Texas; and Oakdale, Louisiana. 11 At that time, videoconferencing was by no means new to courts. It had been used in certain types of criminal proceedings since at least 1972, 12 and many state courts have recently expanded their use of videoconferencing. Most states currently confine videoconferencing to initial appearances and arraignments, 13 which are the only circumstances under which videoconferencing is explicitly permitted under the Federal Rules of Criminal Procedure. 14 Courts have generally prohibited the use of videoconferencing at trial, given the constitutional right to confront witnesses enjoyed by criminal defendants. 15 The United States Supreme Court has declined to extend many of the constitutional protections of criminal defendants to immigrants facing removal, which it 11 See Rahill letter, Appendix B at page 1. 12 Michael D. Roth, Comment, Laissez-Faire Videoconferencing: Remote Witness Testimony and Adversarial Truth, 48 UCLA L. Rev. 185, 192 (2000). 13 For example, the Missouri state courts use videoconferencing for initial appearances, the waiver of preliminary hearings, arraignment on an information or indictment where a plea of not guilty is entered, any pretrial or post-trial proceeding that does not permit the cross-examination of witnesses, and sentencing after a plea of guilty. Waivers from the defendant are required in Missouri only for arraignments involving guilty pleas and for sentencing after convictions. Florida allows videoconferencing to be used in arraignments, and does not require a waiver. North Dakota requires that the defendant object if she or he does not want videoconferencing to be used in the initial appearance or arraignment. 14 Federal Rule of Criminal Procedure 43 provides that the defendant must be “present at the arraignment, at the time of the plea, at every stage of the trial including the impaneling of the jury and the return of the verdict, and at the imposition of sentence, except as otherwise provided by this rule.” Some of the federal Circuit Courts of Appeal have taken “presence” to mean physical presence for purposes of Rule 43. See United States v. Torres-Palma, 290 F.3d 1244, 1248 (10th Cir. 2002); United States v. Lawrence, 248 F.3d 300, 303-04 (4th Cir. 2001); United States v. Navarro, 169 F.3d 228, 235-39 (5th Cir. 1999); Valenzuela- Gonzalez v. United States Dist. Court for Dist. of Ariz., 915 F.2d 1276, 1280 (9th Cir. 1990). However, Federal Rule of Criminal Procedure 5 allows a defendant to appear via remote hearing for his or her initial appearance if the defendant consents. Rule 10 allows the arraignment to be conducted via videoconferencing, with the defendant’s consent. 15 See Maryland v. Craig, 497 U.S. 836, 850 (1990). 15
does not consider to be “punishment.” 16 As a result, EOIR has always taken the position that videoconferencing may be used for a hearing of any type. 17 In 1996, Congress amended the Immigration and Naturalization Act (INA) to authorize removal proceedings to take place through videoconferencing. 18 EOIR, 16 In 1996 Congress amended the Immigration and Naturalization Act (INA) to authorize removal proceedings to take place through videoconferencing. EOIR, in turn, issued regulations that allow videoconferencing at the unfettered discretion of the Immigration Judge. in turn, issued regulations that allow videoconferencing at the unfettered discretion of the Immigration Judge. 19 Under the EOIR regulations, judges can use videoconferencing for preliminary hearings, called “Master Calendars”, for “Individual Calendars” (hearings on the merits); or not at all. Even in the case of hearings involving children, EOIR takes the position that there should be a presumption in favor of videoconferencing. 20 While the regulations require the consent of an immigrant for a merits hearing to be held by telephone, no consent is required for a videoconferencing hearing. 21 Some individual 16 See INS v. Lopez-Mendoza, 468 U.S. 1032, 1038 (1984). 17 See Rahill letter, Appendix B, page 1. 18 8 U.S.C. § 1229a(b)(2)(A) (2005) (“The proceeding may take place . . . through video conference”). 19 8 C.F.R. § 1003.25(c) (2005) (“An Immigration Judge may conduct hearings through video conference to the same extent as he or she may conduct hearings in person”). 20 EOIR, Interim Operating Policies and Procedures Memorandum 04-07: Guidelines for Immigration Court Cases Involving Unaccompanied Alien Children (Sept. 16, 2004), 9 Bender’s Immigration Law Bulletin 1321, 1325 (2004) (“when handling cases involving unaccompanied alien child respondents, if under ordinary circumstances the hearing would be conducted by video conference, the immigration judges should determine if particular facts are present in the case to warrant an exception from the usual practice”). This policy is contrary to standards issued by the American Bar Association. See AMERICAN BAR ASSOCIATION, COMMISSION ON IMMIGRATION, STANDARDS FOR THE CUSTODY, PLACEMENT AND CARE; LEGAL REPRESENTATION; AND ADJUDICATION OF UNACCOMPANIED ALIEN CHILDREN IN THE UNITED STATES 63 (2004) (“The Child’s right to be present at any proceeding requires all proceedings, including both master calendar and merits hearings, to be conducted live and not via videoconference”). 21 8 C.F.R. § 1003.25(c).
Page 1 and 2: Videoconferencing in Removal Hearin
Page 3 and 4: CONTENTS Organizations 3 Acknowledg
Page 5 and 6: Lisa Colpoys Executive Director Ill
Page 7 and 8: informed of what had happened only
Page 9 and 10: • Nearly 30% of those who had an
Page 11 and 12: Videoconferencing is increasingly b
Page 13 and 14: observations with respect to catego
Page 15: PART ONE An Overview of Court Video
Page 19 and 20: angles or screen size will distort
Page 21 and 22: PART TWO The Chicago Immigration Co
Page 23 and 24: Immigration law is arcane, often de
Page 25 and 26: At the Master Calendar hearing, the
Page 27 and 28: judge, printing and delivering noti
Page 29 and 30: conclusion of the hearing, when the
Page 31 and 32: Observed Hearings Staff at the Lega
Page 33 and 34: The results from these monitoring s
Page 35 and 36: In total, we conducted two intervie
Page 37 and 38: Observers witnessed problems caused
Page 39 and 40: Technical Problems at the Detention
Page 41 and 42: egularly witnessed attorneys and cl
Page 43 and 44: Table 4.2: Use of Interpreter and F
Page 45 and 46: The interpreter was located in the
Page 47 and 48: were likely to feel more emotionall
Page 49 and 50: Graph 4.1: Rate of Removal among de
Page 51 and 52: PART FIVE Recommendations Downtown
Page 53 and 54: held in one jurisdiction and the co
Page 55 and 56: • EOIR should issue regulations b
Page 57 and 58: listens to the judge and non-Englis
Page 59 and 60: In other administrative hearings, s
Page 61 and 62: CONCLUSION Mandatory detention and
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Videoconferencing in Removal Hearings: A Case Study of the ...

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