TV-Only Immigration Hearings Spur Court Challenge

Big Brother’s face looms on giant telescreens in Victory Square in one of several scenes of Michael Radford’s 1984 film adaptation of George Orwell’s “1984.”

MANHATTAN (CN) – In George Orwell’s dystopian novel “1984,” the icon of the surveillance society was the “telescreen” – a closed-circuit device that “received and transmitted simultaneously.”

For hundreds of incarcerated immigrants, such a video portal has replaced traditional access to the court system and become their only hope for freedom.

Seeking to cut that feed and mandate human interaction in immigration cases, the Legal Aid Society filed a federal lawsuit Tuesday night with help from the Brooklyn Defender Services and Bronx Defenders.

“In-person hearings had long helped ensure detained immigrants an opportunity to fully access the courts and participate in their removal proceedings,” the 59-page complaint states. “The ICE NY Field Office had never previously engaged in a broad refusal to produce individuals for in-person hearings.”

Representing six anonymous clients, the civil rights groups claim that the switch to CCTV occurred “without warning” on June 27, 2018.

“Technical failures have been rampant, preventing detained immigrants from seeing, hearing, or understanding what is happening in the courtroom,” the complaint states. “These problems result in frequent delays and are compounded when detained immigrants require foreign language interpretation services or accommodations due to disabilities.”

A.Q., a green card holder who has lived in the United States since he was a toddler, claims that the video conference made him afraid to discuss possible persecution in his birth country because of his sexual orientation.

“The judge was therefore not able to properly evaluate A.Q.’s fear of returning to his country of origin or the weight of evidence that he presented,” the complaint states. “The court ultimately denied A.Q.’s petition under the Convention Against Torture on grounds that his claims were speculative.”

R.F.J., a gender nonconforming individual who identifies by plural pronouns, reported a similar experience during CCTV proceedings.

Attorneys also say immigrants with disabilities fare worse in video teleconferences.

The lawsuit quotes an immigration judge expressing concern for “due process and fundamental fairness” at the competency hearing for J.C., who is detained in New Jersey and has a cognitive disability.

“If he appears via video, I see a problem with that,” the judge said on Jan. 18 this year, according to the complaint. “I have to protect his constitutional rights, and I have an expert who told me that this guy shut down when he interviewed him because of certain technical type issues.”

The civil rights groups allege violations of the First and Fifth Amendments. ICE, the Department of Homeland Security, the Department of Justice’s Executive Office for Immigration Review, seven agency heads and an immigration judge are named as defendants.

ICE did not immediately respond to an email request for comment.

Immigration advocates note that ICE’s policy change followed the establishment of the New York Immigrant Family Unity Program, described in the lawsuit as a “first-in-the-nation” initiative to provide detainees with attorneys.

“Since 2013, NYIFUP has increased the rate of successful outcomes for detained immigrants by 1,100 percent, confirming that the services provided by NYIFUP attorneys reduce unnecessary detention and illegal deportations,” the complaint states.

Attorneys from that program say they represent roughly 35 percent of people facing proceedings before the Varick Street Immigration Court, which is subject to the new policy.

“When ICE stopped the in-person production of detained immigrants at the Varick Street Immigration Court, it was not only an affront to the dignity and humanity of our most vulnerable clients, but a direct assault on their fundamental due process rights to be present during their hearing and trials,” the Legal Aid Society’s attorney Jennifer Williams said in a statement.

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