The Trump Administration's Cruelty Haunts Our Virtual Immigration Courts
How “judicial black sites” have come to shape our immigration system.
Lisa Koop, associate director of legal services for the National Immigrant Justice Center (NIJC), stood with her client in immigration court in September 2019. The client (name withheld for privacy) had escaped violence in Central America and fled to the United States with her young daughter. Here, they were taken into custody by immigration authorities, which landed them in this courtroom, waiting to hear whether they would be granted asylum.
They were initially scheduled with a traditional, in-person immigration judge. But that judge retired and the case was transferred to an “immigration adjudication center.” This new judge video conferenced in. Koop says the judge did not allow an opening statement, was not familiar with relevant precedent and did not ask Koop to address any particularities of the case in the closing argument. The judge ruled that, while the case was “very sad,” it did not meet the criteria for asylum, then wished Koop’s client “good luck” following deportation.
This experience is not unique. According to the Executive Office for Immigration Review (EOIR) — the Justice Department agency that oversees these immigration adjudication centers — nearly 300,000 asylum cases have been heard via videoconference in the past two years.
Many of those cases were likely held through these new adjudication centers, which were introduced by the Trump administration in 2017. The operations of immigration adjudication centers remain so opaque that some critics call them “judicial black sites.” The NIJC, which advocates on behalf of immigrants, filed a Freedom of Information Act request with other immigrant rights groups in March 2020 to learn how they work, seeking a list of the centers, their procedures and planned expansions.
When their request went unfulfilled, the groups followed up in October 2020 with a lawsuit against the EOIR and the Justice Department, accusing them of unlawfully expediting deportations under the pretense of efficiency: “[The Justice Department’s] purported aim in expanding courts and creating [immigration adjudication centers] is to address backlogs,” the lawsuit states. “However … these efforts instead amount to the facilitation of assembly-line justice, in which cases are rapidly funneled with little oversight or regard for due process.”
Only two such immigration adjudication centers are listed on the Justice Department website — in Falls Church, Va., and Fort Worth, Texas. They began to hear asylum cases via videoconferencing (from across the country) as early as 2018, and at least 20 judges have been appointed to the centers. Statistics from EOIR suggest remote immigration caseloads are growing — with more than 134,000 cases heard via videoconference in 2019 and nearly 164,000 in 2020 — though what percentage of these cases are heard through immigration adjudication centers is unknown. EOIR declined to respond to multiple requests for comment.
Regardless of outcomes, the reliance on videoconferences and the lack of information is detrimental, advocates say. Claudia Valenzuela, senior attorney with the American Immigration Council (and plaintiff alongside NIJC), points out that these issues create confusion for clients and attorneys alike.
“Confusion has arisen around how attorneys or noncitizens can submit documents to the [immigration adjudication centers] and, in some instances, how [attorneys] can appear,” Valenzuela says. “Depending on where the noncitizen is appearing from, it may or may not be possible for the attorney to be present.” This, Valenzuela explains, is “not ideal for legal representation in an adversarial proceeding.”
Koop explains that “such a big part of lawyering in immigration court is reading the immigration judge, taking cues from their expressions, pausing when they seem to be taking notes, asking follow-up questions on direct [examination] when the judge seems engaged or confused.” She adds, “Not being able to see the judge well during questioning disadvantages the client.”
So far, the Freedom of Information Act request has revealed plans for at least four new immigration adjudication centers. Valenzuela is hopeful their concerns “will warrant revisiting by the Biden administration,” but the “clear intent,” she argues, is “to essentially process immigration cases under a sort of judicial assembly-line system, with little regard for transparency or due process.”
Koop acknowledges that the backlog of cases in immigration courts hurts clients, but stresses these immigration adjudication centers are not a solution.
“Substituting this woefully flawed court-by-video system for a meaningful day in court is not the answer,” Koop says. “When judges are making life-and-death decisions from thousands of miles away, with compromised visual and audio access to the asylum-seekers appearing before them … they are prevented from doing the job they took an oath to do.
“Asylum-seekers are wrongfully denied asylum, and justice is not served.”
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Arvind Dilawar is an independent journalist whose work has appeared in Newsweek and Vice.