The Coronavirus Comes To Immigration Court

Elizabeth Warren, Kamala Harris, Amy Klobuchar, and others call for a pause on immigration hearings for children — but the alternative poses serious problems too.

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Prominent Democratic senators, including Elizabeth Warren, Kamala Harris, Cory Booker, and Amy Klobuchar, called on the Department of Justice on Friday to suspend immigration court appearances for unaccompanied children during the coronavirus pandemic.

“Anything less jeopardizes the health and safety of those children as well as of your employees, other government staff, attorneys, interpreters and the public at large,” they wrote, in a letter to Attorney General William Barr and James McHenry, director of the Executive Office of Immigration Review. That agency “should not force government personnel to choose between preserving their jobs by going to court.”

In fiscal year 2019, more than 425,000 kids appeared in immigration courts.

The senators said that in emergencies, standard court appearances should be replaced with videoconferencing.

As it happens, video proceedings have recently come under fire from child welfare advocates, who say a new pilot program in Texas is rushing unaccompanied minors through their asylum hearings and depriving them of the chance to pursue their case.

The Texas program launched the same week the World Health Organization declared the coronavirus outbreak a pandemic, but it wasn’t intended to address health concerns. Video hearings “still require that children pack on the buses with shelter staff, travel to immigration court, huddle together in waiting rooms, and in courtrooms,” Jason Boyd, director of policy for the nonprofit Kids in Need of Defense. Instead, the new program was an attempt to clear cases on a shorter 60-day time frame.

Attorneys representing children say that the videoconferencing program, which pairs immigrant children in Texas and a judge in Georgia, diminishes the children’s ability to communicate their reasons for seeking asylum, limits the judge’s ability to evaluate nonverbal cues, and impedes the kids’ ability to understand what is at stake for them.

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“When a kid is appearing over a video screen,” said Jennifer Nagda, policy director for the Young Center for Immigrant Children’s Rights, “for the judge that distance can be very dehumanizing. They don't actually have to see the child squirming in their seat.”

Getting an attorney — a factor that can greatly influence whether a child wins the right to stay in the US — often takes longer than the accelerated timeline allows, particularly for children alone and in immigrant shelters.

Even if a child is lucky enough to get a lawyer, video hearings “may leave an attorney with an impossible choice,” said Boyd. They can “appear in the Houston courtroom where they're better positioned to confer confidentially with their client and provide guidance and support to this vulnerable child during what can be a very stressful experience,” he said, “but in doing so the attorney loses the ability to directly interact with the judge in Atlanta.”

Some attorneys who have watched the proceedings report that the video setup makes it hard for children, some of whom are as young as 2, to realize they are in formal deportation hearings.

On the first day of the pilot program in Corpus Christi, Texas, technical glitches abounded. Audio from another video hearing — disturbing testimony about a man being held at gunpoint — piped into a room where children squirmed around on benches waiting their turn. Other electronic holdups delayed hearings for hours, leaving the children exhausted.

A study by University of California, Los Angeles, law professor Ingrid Eagly found that immigrants whose cases were heard via video were more likely to be deported.

The Executive Office of Immigration Review did not respond to questions.

Attorneys say the coronavirus outbreak has increased their difficulties in representing the children appearing via video. The shelters where they’re being held are implementing social distancing policies that require the attorneys to give the same presentation over and over to small groups of children rather than one time to a larger group. That cuts into time the often under-resourced attorneys have to meet with clients. Attorneys also report difficulties trying to hold children’s attention via video screen as they prepare them for their court hearings. Some just draw as the attorneys try to explain their legal predicaments to them, they said. Others just cry.


The name of the University of California, Los Angeles, was misstated in an earlier version of this post.

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