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Best Practices for Conducting
Immigration Hearings via Video Teleconferencing

• Background
For over a decade, the Immigration Courts, like many other trial and some appellate courts in the United States, have conducted hearings through video teleconferencing (VTC), an electronic form of communication that permits two or more people at different locations to engage in audio and visual exchanges. VTC technology allows court proceedings to be conducted efficiently and effectively, even though participants are not together at one location. The linchpin for the Immigration Judge (IJ) is to ensure hearings are conducted fairly and provide due process for the parties.

Immigration Court proceedings conducted by VTC offer several advantages and efficiencies. They reduce transportation costs of the IJ, parties, or both. For detained respondents, VTC avoids the security risks and transportation costs of transporting respondents from a detained location, possibly hours away, to the Court. VTC allows the IJ to conduct hearings at multiple satellite locations, often on the same day, without the necessity of travel to another site, avoiding the costs and time associated with travel and increasing the productivity of the Immigration Judge and the Court. With improved audio and video clarity of state-of-the-art VTC technology, Immigration Court proceedings conducted by VTC can be efficient, effective, and fair, without impinging on due process rights of litigants. Several issues arise in VTC hearings that may not occur in hearings conducted in person at a court or hearing location. This document suggests best practices for handling issues that may arise in hearings conducted via video teleconferencing.

• VTC Authority & Guidelines
The Immigration and Nationality Act § 240(b)(2)(A)(iii) and 8 Code of Federal Regulations § 1003.25(c) specifically authorize the IJ to conduct hearings by video conference to the same extent as he or she may conduct hearings in person. Additional guidance can be found in Operating Policies and Procedures Memorandum (OPPM) No. 04-06, August 18, 2004, Hearings Conducted through Telephone and Video Conference; and the Immigration Judge Benchbook at Introductory Guides: Televideo.

• Best Practice Recommendations
Consultation with Counsel: Despite the best efforts of counsel or a representative, there will be occasions when an attorney or representative needs to consult with the respondent when that respondent is at a location (e.g., a detention facility) different than the attorney or representative. For example, an attorney determines that his or her client is ineligible for cancellation of removal and wishes to, instead, advise his or her client to request voluntary departure. The best practice generally is for the judge to leave the courtroom and allow the attorney/representative to consult with the respondent using the VTC outside the presence of the judge or other government counsel or staff. The judge should determine when it is opportune to take such a break.

Visitation: When hearings are conducted in person at the Immigration Court or other hearing location, family members and friends can be present to provide moral support to the respondent. With a hearing conducted by VTC, that may not always be so as the respondent may be, for example, at a detention facility or satellite location where those others are not present. A best practice is for the IJ, where administrative considerations permit, to allow the respondent, upon request, to talk with his or her family members before the hearing, during a recess, or briefly at the conclusion of the hearing, so that they can support their loved one or friend.

By-location scheduling: For those Immigration Courts scheduling VTC hearings at multiple satellite locations from a fixed court location, a logical tendency is to schedule cases on master calendar hearing sessions without regard to the specific location of the respondent. This leads to multiple pictures, akin to a collage, on the screen before the IJ, which can be distracting visually and sometimes creates additional noise. A best practice is to schedule master calendar hearing sessions by hearing location so that all cases from that location are heard in a session (length determined by the number of cases) and so that only one respondent appears on the screen. When the respondent is detained or in state or federal custody (i.e., Institutional Hearing Program cases), this technique requires coordination with Department of Homeland Security (DHS) Enforcement and Removal Operations personnel and facility personnel. To effectively use this approach, hearing location codes for each satellite location should be used to effectively schedule and track cases, and the hearing location codes can be requested through the Office of the Chief Clerk. It also requires that DHS keep the Court informed of locations of respondents through use of the I-830 (Notice to EOIR: Alien Address) (see 8 C.F.R. § 1003.19(g) and OPPM 99-4: Electronic I-830 (Notice to EOIR: Alien Address)).

Documentary, evidentiary, and service issues: During a VTC hearing, the parties or the IJ may need to provide documents to a participant not collocated. Facsimile (“fax”) machines provide a useful tool to transmit documents among participants. These could be, for example, exhibits which have been filed but are not readily locatable in the Record of Proceeding (ROP), applications for relief or waiver applications, criminal conviction records, or documents offered during the proceedings. When the IJ completes the evidentiary hearing and has rendered a decision, a best practice is for the IJ to complete and sign the order and fax it to the parties, usually while still in court. The DHS counsel present can certify aloud, stating on the record, that a copy of the order has been served on the respondent and counsel, if represented. (Where only the unrepresented respondent is present at the hearing location, a copy of the order may be mailed to the facility point of contact for service on the respondent.) The original order signed by the IJ is filed in the ROP. Support staff will need to assist the IJ with faxing and receipt of documents.

•Technological issues:
Connectivity: Issues arise during hearings when the connection between the VTC system at the Court and that in the satellite location is lost. When attempts to restore a connection with the hearing location have failed, the Court Administrator or support staff will need to contact either the EOIR Helpdesk (EOIRHelpdesk@usdoj.gov, 703-305-7347) or the DHS Video Laboratory (Lab)[(202) 732-7417 or (888) 347-7762], whichever is more appropriate, for assistance in restoring the connection. Factors to consider in which to contact are: which agency’s VTC/telecommunications equipment is involved; the location of the hearing; the number of connections involved; and whether the transmission is over an IP (internet) line or ISDN (telephone) line. The Lab can determine if the difficulty is at the Court or the hearing location; if the latter, the Court Administrator or support staff can contact the point of contact at the hearing location to advise the POC to effect coordination with the Lab to ensure the problem is promptly corrected. EOIR’s VTC Assistance Team may be contacted via e-mail at VTC Service (EOIR).

Compatibility: Sometimes, VTC systems used by the Immigration Court and that used at the satellite location differ; that is, the Immigration Court uses one brand system and the satellite location uses another. Additionally, the Immigration Court may be using a telecommunications provider different from that used at the hearing location. It may be necessary for the two agencies to use a telecommunications “bridge” to ensure the connection works effectively. A “bridge call” may be created through either EOIR or DHS (Video Laboratory) resources. Bridge calls must be scheduled as far in advance of hearings as practical since it requires the assistance of technical support at EOIR or the Lab. Optimally, the Court Administrator or support staff should email bridge connection requests to the Lab at Vtcteam@dhs.gov a week before the scheduled calendar and request confirmation from the Lab that the bridge is in place. The best practice is for the Court Administrator or support staff to contact the EOIR Helpdesk (EOIRHelpdesk@usdoj.gov, 703-305-7347) or the Lab, if applicable, to obtain assistance.

Interplay between VTC and Digital Audio Recording (DAR): DAR plays an important part in VTC hearings. It is important that the DAR audio be functioning properly to have a clear recording, and proper DAR audio prevents VTC feedback problems.

Camera direction: It is important to ensure the best quality video rendering of the respondent. This might require camera adjustment, or, if the camera is fixed, adjusting the location of the respondent to ensure he or she appears in the video frame. A useful Intranet website for use of VTC systems, which includes a directory of available VTC systems, is:

http://eoirweb/ccm/IRM/techCent/Live/tco/cacorner/CourtAdministratorsCorner.htm

In conclusion, video conferencing is a useful tool for the Immigration Courts and IJ’s to use to conduct proceedings fairly and efficiently. This document provides best practices pointers for using VTC effectively, while providing fairness and due process to litigants.

 


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