Telephonic/ Video Conference
C. Control of Proceedings By the Immigration Judge
E. Credibility and Due Process Concerns
II. Telephonic Hearing Checklist
A. Pre-Hearing (Master/Individual)
B. Prior to Commencement of Hearing
III. Hearing Procedure
IV. Post Hearing Actions
B. Service of Decision
V. Bond/Custody Telephonic/Video Conference Hearing
B. Appeal Rights
TELEPHONIC HEARINGS / TELEVIDEO HEARINGS
1. Traditionally, telephonic hearings are conducted
at the Immigration Courthaving administrative control (Administrative
Control Court) by the presiding Immigration Judge by telephone to
a detail city where the DHS and the alien are present. The Immigration
Court having administrative control is the one that creates and maintains
Records of Proceedings within an assigned geographical area. All documents
and correspondence pertaining to a Record of Proceeding shall be filed
with the Immigration Court having administrative control over that
Record of Proceeding matter and shall not be filed with any other
Immigration Court. 8 C.F.R. § 1003.11. When a charging document
is filed with an Administrative Control Immigration Court, the proceedings
may actually take place in a location other than where the charging
document is filed. Thus, it is important to record the actual location
of the hearing. OPPM No. 04-06.
As a general rule, these are master calendar and
custody/bond hearings. Contested full evidentiary hearings on the
merits may be conducted telephonically only with the consent of the
alien. INA §240(b)(2)(B). The alien is advised of her rights
and pleadings of the alien are taken on the record by a tape recorder
at the Administrative Control Office. In some instances, the case
may be heard and completed on the merits. In other instances, the
case is scheduled for an individual hearing on a date when the Immigration
Judge visits the detail city. Witness testimony may also be taken
telephonically when requested by motion and granted by the Immigration
2. The Institutional Hearing Program (IHP) has utilized
telephonic hearings in both state and federal correctional institutions.
Telephonic hearings in the IHP provide several benefits, including
limiting the necessity of prisoner movement, thereby enhancing security,
and improving the ability of counsel to represent detained aliens.
3. Video Conference hearings are conducted in much
the same way except that the Judge can see what is happening in the
hearing room instead of relying what she hears over a speaker telephone.
Video Conference hearings are being successfully conducted on a regular
basis in 31 courts. The Illegal Immigration Reform and Immigrant Responsibility
Act of 1996 (IIRIRA) specifically authorizes Video Conference hearings.
INA § 240(b)(2)(A)(iii), as added by IIRIRA.
EOIR has adopted video conferencing on a national
level. A headquarters Immigration Court conducts hearings by video
conference on a regular basis.
Telephonic hearings are an effective and efficient
way for the Court to do business. They are cost effective as they
require no travel or per diem expenditures. They enable Judges to
resolve many minor or uncontested cases. By using telephonic hearings
to narrow the issues prior to actually traveling to a detail city,
the Immigration Judge can ensure that travel to the detail city will
result in hearing individual cases on the merits or where a dispute
exists among the parties.
TeleVideo hearings can, in the Judge's discretion,
eliminate the need for in person hearings. This results in a more
efficient use of a Judge's calendar time.
C. CONTROL OF PROCEEDINGS BY THE IMMIGRATION JUDGE
1. It is essential that the Immigration Judge maintain
full control of the proceedings whether held telephonically or via
Video Conference. For example, an alien that is unrepresented may
be subject to prompting by others should the Judge have failed to
state at the outset how the proceedings will be conducted.
a. It is recommended that the Judge announce prior
to the calling of the first case for the day what she expects of the
parties on the other end. The Judge sets the tone for the proceedings
on the other end. All parties on the other end must be instructed
to speak loudly and clearly. A test should be done with the tape recorder
both in the courtroom and on the other end to make certain that the
parties are being properly recorded to avoid transcriptions that have
a number of "indiscernible" notations on them.
b. Tests of recording equipment and sound should
also be conducted with Video Conference equipment as well to make
certain that an audible and accurate transcription of the proceedings
is being created.
2. In the event that an order is issued or a case
reset as a part of the telephonic proceeding, care must be taken to
have the respondent present for the purpose of receiving a verbal
advisal of rights, including failure to appear for a subsequent hearing,
failure to depart in compliance with a grant of voluntary departure,
and that failure to appear for removal. The person with the alien
at the other end will have to furnish the written advisals after the
Judge has given the oral advisals. Written advisals under IIRIRA are
given in the English language and no other.
Section 240(b) of the Act, as added by IIRIRA makes
specific statutory provisions for both telephonic hearings and video
conference hearings. Under IIRIRA an alien does not have the right
to an in-person hearing where video conferencing equipment is used.
The regulation at 8 C.F.R. § 1003.14 provides
that “[j]urisdiction vests, and proceedings before an Immigration
Judge commence, when a charging document is filed with the Immigration
Court by the Service.” EOIR has been conducting hearings via
video conference for over ten years. Circuit courts regularly address
whether a hearing comports with due process in petitions for review
and no court has ever found that a hearing conducted via video conference
deprived a respondent of a full and fair opportunity to present his
case. In Rusu v. INS, 296 F.3d 316 (4th Cir. 2002) the petitioner
asserted that the use of video conferencing in his asylum hearing
violated his right to due process. The court denied the petition even
though there were numerous technological problems with the equipment
in that case. While acknowledging the problems with the equipment
throughout the proceeding, the court stated that it was clear that,
throughout the proceeding, the IJ made a sincere effort to understand
petitioner’s testimony and provided him with numerous opportunities
to elaborate and to clarify it.
1. Background: Exclusion, Deportation and Rescission.
a. Prior regulations at 8 C.F.R. § 3.25(c) (1995)
provided that: "An Immigration Judge may conduct hearings via
video electronic media or by telephonic media in any proceeding under
8 U.S.C. §§ 1226, 1252, or 1256, except that contested full
evidentiary hearings on the merits may be conducted by telephonic
media only with the consent of the alien."
b. Following sections 240(b)(2)(A) and (B) of the
Act as added by IIRIRA, the regulations now distinguish between video
electronic media hearings and telephonic hearings, and do not require
consent to the video electronic media hearings. Therefore, for removal
proceedings, video electronic media hearings are within the discretion
of the Immigration Judge. The current regulation at 8 C.F.R. §
1003.25(c) (2005) provides that:
An Immigration Judge may conduct hearings through
video conference to the same extent as he or she may conduct hearings
in person. An Immigration Judge may also conduct a hearing through
a telephone conference, but an evidentiary hearing on the merits may
only be conducted through a telephone conference with the consent
of the alien involved after the alien has been advised of the right
to proceed in person or, where available, through a video conference,
except that credible fear determinations may be reviewed by the Immigration
Judge through a telephone conference without the consent of the alien.
A telephonic hearing in absentia and therefore without respondent’s
consent has been found permissible. Matter of Villalba, 21 I&N
Dec. 842 (BIA 1997).
a. The regulations at 8 C.F.R. § 1003.19 (2005)
permit an Immigration Judge in his or her discretion, to conduct a
custody/bond determination by telephone.
b. It is the policy of the Office of the Chief Immigration
Judge (OCIJ) to conduct all master calendar hearings in detail cities
telephonically. The reasons for this are set forth in paragraph B
above. Bond hearings require immediate attention and therefore are
always conducted telephonically to detail cities unless the Immigration
Judge is present at the detail city when a request for a custody/bond
hearing is made.
E. CREDIBILITY AND DUE PROCESS CONCERNS
1. The demeanor of witnesses in telephonic hearings,
despite the inability to observe the appearance of the witness, can
still be judged by other factors, such as the inherent plausibility
of the testimony, the tenor of the witness's voice, inconsistencies
and contradictions in testimony and specificity oftestimony. See,
e.g., Babcock v. Unemployment Division, 696 P.2d 19, 21 (1985).
2. Although the subject of an administrative hearing
has the right to give oral testimony, actual physical presence is
not required. See Goldberg v. Kelly, 397 U.S. 254, 268-69 (1970);
Kansas City v. McCoy, 525 S.W.2d 336 (Mo. 1975).
II. TELEPHONIC HEARING CHECKLIST
A. PRE-HEARING (Master/Individual)
1. Proceedings may not commence until the charging
document has been received by the Immigration Court having administrative
control over the city or site where the hearing is to be held. See
8 C.F.R. § 1003.14(a) (2005) The exception to this rule is the
conducting of a bond/custody hearing which may be held before the
Immigration Court receives the charging document. Note that the respondent
must have been served with the charging document for all hearings
except for bond/custody proceedings.
2. Prior to the telephonic hearing date the Immigration
Judge should encourage parties to conduct a pre-trial conference to
reach stipulations and narrow issues for consideration by the Court.
This will shorten the length of the hearing.
3. Require all parties to exchange documentary evidence
and other documentation.
4. Ad-hoc telephonic conferences can be useful to
ensure that all parties are ready to proceed as scheduled at a detail
city. This mechanism is a useful tool when a case is on a call-up
calendar and before the Immigration Judge to determine if applications
have been timely filed and/or a Form I-130 or Form I-751 has been
properly adjudicated by USCIS.
B. PRIOR TO COMMENCEMENT OF HEARING
1. Ensure that the parties and the interpreter (if
one is present) are all positioned so that you can hear them clearly
through the speaker and they can hear you. This will also afford an
opportunity to check the clarity of the connection.
2. Many connections will be made by means of a telecommunications
satellite. This means that the speaker's voice must travel to the
satellite for retransmission to the receiving phone. This entire procedure
takes only about three seconds but it is important that you instruct
the parties to pause three seconds before speaking, thus ensuring
that the entire statement is recorded. Instruct the parties to identify
themselves before speaking.
III. HEARING PROCEDURE
1. An Immigration Judge who conducts a hearing either
telephonically or through video conference must create a clear record
of where the hearing is taking place. At the beginning of each session
of the hearing, the Immigration Judge must identify himself or herself
for the record. The Immigration Judge must note that he or she is
sitting via telephone or video conference and identify the specific
hearing location where he or she is conducting the hearing (i.e.,
the location where the case is docketed for hearing). All hearing
locations are published in the Office of the Chief Immigration Judge’s
Administrative Control List. This list is made available to the public
pursuant to 8 C.F.R. § 1003.11, and is available on the Executive
Office for Immigration Review’s Intranet and Internet. OPPM
2. The Immigration Judge should note the location
of the respondent, the respondent’s counsel or representative,
if any, and counsel for the DHS, in order to create a clear and complete
record. OPPM No. 04-06.
3. The circuit law that is to be applied to proceedings
conducted via telephone or video conference is the law governing the
hearing location (i.e., the location where the case is docketed for
hearing). OPPM No. 04-06.
4. Start the recorder and make the usual opening
statement for the record, reciting the name and "A" number
of the case, the date of hearing, your name, the names of the representatives
and the name and language of the interpreter. It is also appropriate
to state for the record that the hearing is being held telephonically
or by video conferencing, giving your location and the location of
5. Proceed as though conducting an in-person hearing.
Inform the alien of his or her right to be able to hear all of the
6. It would then be appropriate to have the parties
state any stipulations for the record.
7. Mark the exhibits. The first exhibit for the record
is almost always the charging document. Mark it in evidence, stating
for the record that you have done so.
8. Schedule a date for the individual hearing (next
available date when you or another detail judge will be sitting in
the detail city) and give notice of date, time, and location of the
hearing to the parties. In certain prison settings security concerns
of the institution may frown upon this practice, however, in many
prison settings, hearings require adjournment because the prison custodian
has failed to deliver a hearing notice. If the Immigration Judge gives
out the hearing notice, then lack of notice to the alien ceases to
be an issue. Unless untimely notice of a hearing is waived by the
alien, the statutory time frames for notice depending on the type
of proceeding must be observed, and the hearing continued if necessary.
9. In instances where an individual telephonic hearing
has been held:
a. Once the record is fully developed as to all issues
and after the parties have rested, render your decision.
b. Use the appropriate form to memorialize your decision.
If you use a Form EOIR-6 or 7, you must dictate a complete oral decision
unless the alien accepts your decision and waives appeal. If appropriate,
enter a written form order, clearly stating the reasons for your decision.
Give the alien the appeal date, have the party on the other end serve
the alien with the appeal form as well as the fee waiver form and
serve copies of your order on the parties by mail.
c. It is recommended that you staple a yellow "Rush--Detained
at Government Expense" card on the front of the ROP. Certain
unscrupulous attorneys and representatives have been known to file
appeals checking the "non-detained" box on the appeal form
attempting to secure release of an alien in custody. When the ROP
is properly noted as a detained case, an appeal if filed timely is
placed on a fast track at the BIA.
d. Once the decision is entered, ascertain which
party, if any, wishes to reserve appeal. If appeal is reserved, the
forms should be given to the respondent or counsel and have the record
reflect that this has been done. Then, close the hearing. It is recommended
that in all settings that the Judge furnish appeal forms directly
to the alien and explain the process to the alien. The BIA is now
strictly imposing filing deadlines and appeals are routinely dismissed
if they are not timely filed.
IV. POST HEARING ACTIONS
1. Any order or decision by an Immigration Judge
in a hearing conducted through telephone or video conference where
the case was docketed for a hearing location (as opposed to an administrative
control court/base city court) must include the hearing location (not
the administrative control court/base city court) in the caption.
The order or decision must include a statement that the hearing was
conducted through video or telephone conference and a statement that
sets forth the administrative control court and address for purposes
of correspondence and post-hearing motions. OPPM No. 04-06.
B. SERVICE OF DECISION
1. If you have entered a summary written decision
on Form EOIR-6 or 7, or other form at your location, ensure that copies
of the decision are mailed to the parties immediately, and that the
appeal date is clearly noted on the lower left hand corner of the
order. If appeal is waived, circle on the order that appeal has been
waived by both parties. This has great significance as when appeal
is waived, the order becomes administratively final. See Matter of
Shih, 20 I&N Dec. 697 (1993); see also Matter of J-J-, 21 I&NDec.
976 (BIA 1997).
2. If you have rendered an oral decision, you should
prepare a memorandum of the decision and serve it on both parties.
The CASE system has separate memorandum of decision forms for Exclusion,
Deportation, and Removal.
The normal clerical procedures should be completed,
including the posting of the hearing calendar, assembly of the exhibits,
putting all tapes in the tape envelope, and instructing the clerk
on the disposition of closed files. In the case the use of a contract
interpreter, (you most likely will not have a Court interpreter present)
the burden is on you to get the file to the correct place.
V. BOND/CUSTODY TELEPHONIC/ VIDEO CONFERENCE HEARING
1. Application to review bond determinations must
be made to one of the following Courts in this order: (1) Where the
alien is detained; (2) to the Immigration Court having jurisdiction
over the place of detention; (3) the Immigration Court having administrative
control over the case; or (4) to the Office of the Chief Immigration
Judge for designation of an appropriate Immigration Court. 8 C.F.R.
§ 1003.19(c) (2005).
2. The hearing need not be recorded. See Matter of
Chirinos, 16 I&N Dec. 276 (BIA 1977) (The primary consideration
in a bail determination is that the parties be able to place the facts
before an impartial judge as promptly as possible. There is no requirement
for a formal “hearing.” Informal procedures, even telephonic
“hearings,” are encouraged so long as prejudice does not
result.) Generally the bond/custody hearing is not recorded unless
the hearing is complicated, testimony is taken, and the Judge feels
it appropriate to record. If the hearing is recorded, follow the procedure
outlined in section III of this chapter.
3. Advise the alien of the nature and purpose of
the proceedings and her legal rights, including service of List of
Free Legal Services Providers. Verify that the alien has requested
a bond/custody redetermination hearing and instruct the parties on
how you wish them to proceed. It is suggested that the Judge advise
the alien that the request for a redetermination of the bond/custody
can result in an increase as well as a decrease in the bond amount.
4. Specifically, you should determine what the alien
is seeking -- the reduction of bond and/or changes in conditions,
and the reasons why reduction and/or change is appropriate. You should
also determine the position of the DHS and why the DHS has taken that
5. Avoid the tendency toward a formal hearing unless
you feel it critical to the decision. Bond hearings should be brief.
The Transitional Period Custody Rules (TPCR) expired on October 9,
1998. Generally, DHS must pick up an alien after the conclusion of
the hearing and hold the alien without bond until removal. INA §
236(c). Certain exceptions exist, however, they apply to aliens that
cannot be readily removed from the United States. After October 9,
1998, the INA as amended by IIRIRA imposes the duty of detention on
the DHS in almost all circumstances.
6. As an option, you may wish to use a Custody Redetermination
Questionnaire that you have designed based on the factors and cases
presented in the Benchbook. Render your decision and record your order
on Form EOIR-1, advising parties of appeal rights.
7. Follow regular post-trial procedures and serve
the order on parties by mail.
B. APPEAL RIGHTS
1. If an appeal is taken, it is required that you
make a written memorandum of your oral decision for review by the
Board of Immigration Appeals.
2. No fee is required for a bond appeal.