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The Technology The Government Uses For Immigration Hearings Doesn't Work Right

"Can you hear us?" The immigration court system is slammed, so the feds have turned to video conferencing — and it's not very good.

Posted on August 11, 2014, at 10:07 a.m. ET

AP Photo/Eric Gay

A Texas detention facility

ARLINGTON, Va. — Shortly after 10 a.m. Tuesday, immigration Judge Roxanne Hladylowycz brought her court to order for a long day of removal hearings and asylum pleas.

The plaintiff, one of the hundreds of mothers with children being housed in an Artesia, New Mexico, facility, was ready. The attorney for the Department of Homeland Security was ready, as was the translator.

One critical thing was not ready, however: the teleconferencing system used by the Justice Department to connect Hladylowycz's Virginia courtroom with the New Mexico detention facility.

"Artesia … we are going to logoff and ask you to reconnect," a technician said, peering at a pixelated box in one corner of an otherwise blacked-out television. "Can you hear us?"

There was no response.

After a few minutes, the judge got up. "It looks like it's going to be a little bit of a wait, everybody. It is what it is," she said before exiting the courtroom.

Tuesday's technical hiccups aren't an isolated incident, according to immigration attorneys and civil liberties activists, but are a common place problem that has plagued the Obama administration's efforts to use technology to address the mounting backlog of asylum and deportation cases.

Long before the recent flood of undocumented children hit the border, the nation's immigration court — which is not part of the judiciary but is rather overseen by the Justice Department — was under significant stress. Detainees have faced months-long waits in government facilities as judges slogged through routine deportations, as well as more complicated asylum proceedings.

To help alleviate the pressure — while also cutting costs — the government has increasingly relied on video conferencing technology to allow judges thousands of miles away to oversee cases. The practice began during the Bush administration and has continued under the Obama administration.

A spokesperson for the Executive Office of Immigration Review, which operates the courts, defended the video teleconferencing system, known as VTC.

Noting Congress specifically approved the use of VTC in immigration and asylum hearings, the spokesperson said in an email, "[The Executive Office of Immigration Review] routinely uses VTC equipment to improve the efficiency of the immigration court process and to more effectively manage its resources. VTC provides coverage to locations where [we do] not have a physical presence and, in areas where [we do] have a physical presence, creates greater flexibility in docket management by enabling non-local judges to assist with hearing cases."

But the impersonal nature of the technology can make determining an asylum applicant's credibility difficult. It also puts lawyers in a difficult position of choosing to be with their clients or in court to better spar with DHS attorneys.

"It's been an issue for a while … the technology is not where it should be," said David Leopold, a former president of the American Immigration Lawyers Association who is now a private attorney.

On Tuesday, about 30 minutes after Hladylowycz recessed, the giant television in the corner of the courtroom flickered to life.

A young El Salvadoran woman sat in a room at the detention facility, her small son fidgeting in her lap, alternately sucking from a bottle and playing with a box of tissues on the table.

Her attorney's legal assistant was heard talking to a guard in the room, worrying that the television picture would not be sharp enough for the judge to see the woman's broken nose — a key part of a bond request she presented. "I don't know if they can see it or not," she said.

"You're going to have to let them know. Take a picture and send it to the judge," the guard suggested. "We can't take pictures here," the assistant noted.

Although the television was large, the picture quality made it difficult to discern details of the woman's features, or whether her nose was broken.

The difficulties of distance did not stop there: Due to a FedEx mix-up, neither the judge nor the Homeland Security lawyer had received a signed copy of the woman's asylum petition. The court then had to wait for a signed copy to be faxed. Other hearings have faced confusion over when they are supposed to start — a 1-800 number attorneys use only gives scheduled times in Eastern Standard Time.

And once the real part of the hearing began, there were still more problems. Judge Hladylowycz interrupted the attorney's presentation early on, asking why he appeared to be talking to someone else. "Who else is in the room? Who's talking to you?" she asked. "I'm not comfortable with that." After the attorney explained it was his legal assistant who had been handling parts of the case, the hearing resumed.

The woman said she fled El Salvador because her child's father had become increasingly abusive since her pregnancy. Her aunt, a naturalized citizen, lives in Woodbridge, Va., and had offered to pay for her to come from New Mexico and stay with her during the court process.

The Homeland Security attorney argued that the current "mass migrant" crisis is "recognized as a national security threat by the [Attorney General] … [and] it will encourage human smuggling."

Citing her lack of a permanent address in the United States, Hladylowycz denied the bail request. The actual hearing took less than 45 minutes.

Ruthie Epstein, a spokesperson for the American Civil Liberties Union, called the technological issues at the hearing "not uncommon."

"It's a huge concern," Epstein explained, arguing of particular concern to immigration activists is the difficulties using teleconference technology can have in making a fair credibility assessment. "Small visual cues help anyone determine" credibility, but those can be lost on television.

Leopold agreed. "It's very difficult for a judge to make a credibility determination based on a video," he said, adding that attorneys "have to do color commentary like a sports announcer" in an effort to fill in the blanks left by the technology.

Epstein also noted the technology can make it much harder for immigrants to explain why they've entered the country in a convincing manner. "To do that in a sort of cold setting, talking to someone on a TV … is just not a conducive setting."

The Executive Office of Immigration Review spokesperson downplayed the concerns of attorneys and advocates. "We have confidence in immigration judges' ability to fairly hear cases via video conference," he said. "Additionally, Congress has authorized immigration judges to conduct removal hearings by VTC to the same extent as by in-person hearings."

Still, even after the Tuesday bond hearing was over, the limitations of the technology were evident: In a brief conversation with the attorney in Artesia following her decision, Hladylowycz attempted to direct him to a new email address attorneys at the facility can use to serve Homeland Security with asylum filings.

After the Department of Homeland Security attorney spelled out the email address several times, the attorney read it back, transposing the "d" and "s" in DHS.

"No, 'D-H-S' — it's the Department of Homeland Security," the judge corrected him.

No one, however, noticed that he also left off a letter in another part of the email address.

A BuzzFeed News investigation, in partnership with the International Consortium of Investigative Journalists, based on thousands of documents the government didn't want you to see.