In the weeks before coronavirus concerns were sweeping the state, the Trump administration was rolling out a pilot program in Houston that would use video hearings to speed up proceedings for immigrant children and help reduce a record backlog of more than 1.1 million cases nationwide. In early March, when the program began, unaccompanied children, interpreters, and attorneys appeared in downtown Houston for proceedings. Arguments were streamed to Judge Sirce Owen in Atlanta, who, like all immigration judges across the country, has been under pressure from the Justice Department to resolve cases within a tight sixty-day time frame. With the threat of deportation looming over them, many children—some as young as five and without legal counsel—had difficulties understanding the complexities of the asylum process over video.
The first 48 hours of teleconferencing were marred by technical difficulties. Children tried to make sense of the judge’s image on a video screen and the interpreter in the courtroom, not knowing exactly whom to direct their attention to. Surrounded by strangers and lawyers they had only known for a short time, they answered questions between frequent pauses to sort out audio issues. Often they overheard other asylum seekers in neighboring courtrooms describe threats of violence they faced. The sum of the difficulties may have made it harder for them to win their cases: indeed, in 2017, U.S. Government Accountability Office investigators found that judges in more than half the immigration courts they visited said they changed their view of an immigrant’s credibility when meeting the individual in person after initially doing so over video.
Houston immigration attorneys in early March argued that the pilot program failed to provide due process, and called for its end. But since the coronavirus pandemic hit Texas and in-person hearings began posing a threat to public health, the video hearing process has become more entrenched. And, all the while, it’s grown even more convoluted.
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Late Monday night, President Donald Trump tweeted that he would be signing an executive order “to temporarily suspend immigration” into the country. It’s unclear when the executive order will be issued, and the president has yet to provide details on whether it would apply to migrants who are currently in asylum proceedings.
While hearings scheduled through May 1 for released immigrants have been postponed, the Department of Justice is continuing in-person hearings for those in the custody of ICE or the Office of Refugee Resettlement. That’s despite concerns from judges, prosecutors, attorneys, and even the union representing ICE lawyers. Ten of the eleven immigration courts in Texas are open for hearings.
Protocols for these hearings vary from court to court and sometimes from judge to judge, even within the same area. For example, while Houston’s Smith Street immigration court allows anyone involved in a hearing, including detainees, to appear remotely, Conroe’s immigration court allows only attorneys to appear telephonically so immigrants are still expected to appear in person. Some jurisdictions require attorneys to wear their own personal protective equipment in the courtroom; others have no such rules.
Some judges and attorneys have tested positive for the virus and reported COVID-19 symptoms. The DOJ says it is “continuing to receive filings and to hold hearings for detained aliens while monitoring and minimizing risks presented by COVID-19.”
Critics argue that the Executive Office of Immigration Review’s decision to continue with business as usual is jeopardizing the health of both asylums seekers and court personnel. The American Immigration Lawyers Association, along with other advocacy groups, filed a temporary restraining order in early April against EOIR and ICE in an effort to halt in-person proceedings.
“It’s inexplicable and dangerous that the Trump administration has kept immigration courts open across the country and insisted that hearings for detained and unaccompanied children proceed,” says Wendy Young, president of Kids in Need of Defense, or KIND, which helps provide legal assistance to unaccompanied children.
Even fully remote hearings pose risks. Attorneys must continue to meet with clients to discuss their options, obtain signatures, and, in some cases, take them to see forensic or medical experts. Attorneys face a dilemma: Put their health and their clients’ health at risk by diligently working the case, or disadvantage their clients by sitting idle.
“Our attorneys are being forced to choose between either going in-person to file and risk their own health, or place their client at risk of deportation by not meeting a filing deadline,” said Elisa Gahng, a managing attorney at KIND. “These attorneys have their own children, their own family members at home, and now they’re being confronted with the severe anxiety of having to make such a high-stakes decision.”
Though attorney-client meetings can be conducted over the phone or video, many immigration attorneys have said the results aren’t the same. Because phone calls in detention centers tend to happen in public areas, candid conversations can jeopardize immigrants’ confidentiality. Asylum seekers, by definition, often have harrowing stories of sexual violence, political oppression, and torture.
In-person meetings make it more likely that clients are comfortable enough to open up about any trauma that led them to flee to the U.S., stories that can can make or break asylum claims. Children, in particular, are wary about opening up, according to Claire Doutre, managing attorney at KIND’s Houston office. Normally, KIND attorneys visit their child clients at refugee shelters and explain how the process will work. Now they’re conducting meetings over Skype or Microsoft Teams. “We’re asking kids to open up and talk about the most personal and traumatic experiences of their lives and not even be making direct eye contact with them,” said KIND attorney Hillary Larsen.
Remote hearings are so bad for immigrants, that many groups, including KIND, are calling for immigration courts to be temporarily shuttered. But Kat Russell, an attorney with Refugee and Immigrant Center for Education and Legal Services (RAICES), argues that halting all proceedings, especially for those that deal with adults, would be detrimental. She’s currently appearing telephonically but wants all courts to adopt remote video hearings that would make it easier for attorneys to observe and respond to others in the courtroom. “Any pause to the court system creates a very big ripple effect,” Russell said. “I obviously understand the public health concerns, but stopping all hearings entirely for people in detention is misguided and not really in our clients’ interest. No one wants to hear that their court date is going to be pushed back indefinitely.”
One solution would be releasing unaccompanied children to their U.S. sponsors, where they could safely quarantine and pursue their cases. “I’m worried that the health of these children and their right to health and safety are being cast aside as unimportant in this pandemic,” said Katherine Peeler, a pediatric critical care physician and clinical expert for Physicians for Human Rights. “We cannot use this pandemic as an excuse to ignore our responsibility as a country that allows people to seek asylum.”
Even amid calls for change, advocates and attorneys are trying to do their best for immigrants stuck in a dysfunctional system. KIND attorneys, for example, are working a case involving a young mother and her five-month-old child who are facing deportation. “It’s extremely daunting under any circumstances,” said Young. “What is so important about us deporting a baby that we have to do it in this pandemic?”