Originally published by The Washington Post
The Trump administration says it is trying to speed up legal proceedings for some of the record 13,000 migrant children in federal custody by using video hearings to stream testimony from detained youths into courtrooms, The Associated Press has learned.
The problem, some attorneys and judges say, is that technical glitches — including bad audio, weak connections and pixelated screens — are actually making it much harder for the teens in shelters to have a fair hearing. It can be challenging for judges to assess children’s credibility without eye-to-eye contact, they say. And it further obscures the cases, which legally are supposed to be public.
But the Office of Refugee Resettlement, which has custody of the teens, says its unannounced pilot program will save money and allows youths, some of whom are being housed at a cost of more than $775 a night, to appear before a judge more quickly.
The program for teens, piloted in conjunction with the Justice Department’s Executive Office for Immigration Review, launched several weeks ago. Video teleconferencing already has been widely used in a variety of adult legal proceedings.
So far, about 30 youths have appeared via videoconferencing before immigration judges in Phoenix and Harlingen, Texas, said Lydia Holt, an ORR spokeswoman. Similar hearings have been conducted in immigration courts in Miami and New York City, said Kathryn Mattingly, an EOIR spokeswoman. The AP learned they also have been scheduled in Los Angeles, Philadelphia, El Paso, Seattle, Tucson and San Francisco.
This summer, the optics of children in court became an embarrassment to the administration, with critics seizing on the fact that the immigration system requires children — some still in diapers — to appear before judges for legal proceedings.
Holt said the administration has recommended 75 more unaccompanied children for video hearings, typically migrants between the ages of 15 and 17 who have been in custody for a longer period of time and want their immigration cases heard swiftly.
“If at all possible, ORR does not want children to stay longer than necessary in our facilities while waiting for their immigration case to be heard,” she said.
ORR shelters are nearly full, mostly with children who immigrated without their parents and have family or friends in the U.S. willing to take them in. But the children can spend months in detention as the government arranges their deportation or release to parents or other sponsors, who are now facing stricter guidelines for vetting in the U.S.
Almost 60 percent of all migrant children who had their first court date in fiscal year 2017 still did not have lawyers by this August, according to the Transactional Records Access Clearinghouse.
In states where children have been appearing before judges via video, attorneys say the new process hasn’t worked well thus far and risks rolling back due process. Much of the legal representation is pro bono, and organizations can’t afford to have two attorneys at each appearance — one in the courtroom and another in the shelter.
In one case, there was no way to transmit court documents remotely, so someone had to drive to the shelter to serve the detained teen with paperwork. Another teen stopped talking and started looking around the room when the video feed coming from the court went blank, confusing the judge trying to evaluate the teen’s credibility.
The government is asking shelter workers to set up mock hearing rooms, complete with a table for the child and empty tables for the judge and the government attorney.
Judge Ashley Tabaddor, president of the National Association of Immigration Judges, called the video teleconference equipment “very, very difficult to work with.”
She said she recently oversaw a video hearing in her Los Angeles courtroom: It took a half-hour to set up the connection, for a proceeding that would have taken five minutes in person.
Phone lines drop, screens get fuzzy and participants have difficulty hearing each other, an issue exacerbated by language interpreters, who often aren’t at both locations.
“There is nothing that can substitute for an in-person hearing,” Tabaddor said.
Ingrid Eagly, a law professor at the University of California, Los Angeles, who has analyzed thousands of cases of detained adult immigrants, found that those who saw judges on a monitor were more likely to be deported than those who appeared in court.
The reason: During in-person hearings, detainees often better understood their options and sought legal counsel and other relief. Inside the detention centers, immigrants were frustrated with technical problems and felt the proceedings were unfair, so tended to give up, she found.
Immigration courts began using video hearings for adults 25 years ago, a process the federal government considers a “force multiplier” by saving time and money. It gives the government greater scheduling flexibility and allows judges in other regions to help clear dockets. And they have ramped up dramatically in the past decade.
Archi Pyati, a New York-based attorney for the Tahirih Justice Center, which represents migrant children, said the government’s growing effort to move immigrant children into remote, locked facilities is making it tougher to provide them their legal recourse.
Sometimes, clients need to talk about deeply personal trauma, abuse and fear, Pyati said.
“It’s very hard to talk about that to a screen and not to a human being,” she said.