Remote hearings for unaccompanied children proves a disaster

March 16, 2020

Imagine being a child in a courtroom during a hearing you do not understand. You may realize that the outcome of the proceeding will determine your future, or you may have no idea. Near you, a screen projects images but the picture is grainy and the sound sometimes cuts out. You are not certain who the judge is, or if the judge is in the courtroom at all. Adults you don’t know surround you. Suddenly, someone asks you to talk about, in this confusing and frightening place, the traumatic events that compelled you to seek protection in the United States — your most unspeakable experiences.

Tragically, this is no mental exercise. It was a pilot program initiated by the Trump administration on March 9 at the Houston immigration court. The court is forcing detained  unaccompanied children to undergo deportation proceedings via video teleconference (VTC) before an immigration judge located in the Atlanta immigration court, 700 miles away. This pilot program will impact up to 1,500 children and some advocates worry this could lead to a permanent VTC docket for all detained unaccompanied children in the country.

The Executive Office for Immigration Review launched this initiative even though the due process barriers posed by VTC to vulnerable immigrant children are well documented. The American Bar Association and others have made clear that the practice is deeply flawed, leading to reduced comprehension of proceedings, heightened anxiety and disorientation, and should be used only when it is in the best interest of the child. In-person immigration court proceedings are difficult enough for children to grasp. Remote hearings multiply those challenges, fundamentally compromising children’s ability to present their protection claims.

As staff with our organization, Kids in Need of Defense (KIND), observed in the Houston and Atlanta courtrooms, the hearings went exactly as we feared. Repeated technical problems made it difficult for the children to understand, much less participate in, the proceedings, while causing substantial delays. The children did not know where to look. Some kids appeared to mistake the interpreter — who was physically present in the courtroom — for the judge. Indeed, many children, including a 5-year-old, did not even glance at the video screen with the judge’s image throughout the proceedings.

In the Atlanta courtroom, the faces of the kids appeared small and unclear on the video screen viewed by the judge, leaving their expressions and emotions difficult to discern. This is incredibly troubling when a key part of the judges’ responsibility is to determine the veracity of the child’s testimony. At one point, a hearing from another courtroom in which an adult was describing threats to their life in their home country came over the pilot program’s audio feed, breaking confidentiality and derailing the proceedings.

Errors and confusion dominated the day. Many of the children seemed not to grasp the content and consequences of the VTC hearings that will shape the rest of their lives. Afterwards, children said the proceedings were confusing and uncomfortable.

VTC imposes communications obstacles to children with cognitive impairments, including those who have difficulty speaking. Children who have endured severe trauma, including sexual violence, have a harder time sharing their experiences without in-person communication with the judge. To ensure due process and fundamental fairness in these children’s proceedings, this pilot should not be expanded or made permanent.

Compounding the due process barriers imposed by VTC is the new requirement that immigration judges complete the cases of detained children within 60 days. Most children are not able to access pro bono counsel until they have been released from federal custody. Unaccompanied children’s average length of stay in federal custody is 60 days, so this timeframe would preclude many kids from finding a lawyer, let alone having an ability to make their request for protection.

The 60-day case completion requirement also will preclude children from accessing humanitarian protection through the U.S. Citizenship and Immigration Services, a significant avenue for relief. The agency normally takes longer than 60 days to adjudicate an application; even children who are eligible for protection may be unjustly ordered deported because of this case completion timeline.

In isolation, these changes would substantially limit the ability of unaccompanied children to receive a fair day in court. Taken together, they pose what for tens of thousands of kids could prove insurmountable barriers to humanitarian protection.

The Trump administration should immediately cancel the Houston pilot program before the VTC docket and rescind the 60-day case completion rule. In addition, Congress should conduct thorough oversight to illuminate the harmful consequences of these measures and direct the agencies to end them without delay.

Every unaccompanied child deserves a fair day in court. If left unchecked, these policies instead will force the summary and unjust deportation of countless children to grave danger, perhaps even death. Not only do these children deserve better, but we Americans have a responsibility to demand better of our immigration court system.

Jennifer Podkul is vice president for policy and advocacy at Kids in Need of Defense (KIND). Follow her on Twitter @jpodkul.