Imagine you recently fled your home country. Maybe you traveled thousands of miles to reach the United States, where you believe you might find safety. You're apprehended by Border Patrol, perhaps taken to a U.S. Immigration and Customs Enforcement detention center, or released and placed into removal proceedings. You are then notified that you must appear before an immigration judge for the first time in what's called a master hearing, where you'll learn about the charges against you and be informed of your rights—including your right to seek relief from deportation. At that moment, if you're a non-English speaker, you'll probably want to have an interpreter by your side.
But that may no longer be an option. As first reported by the San Francisco Chronicle earlier this month, the Trump administration is taking steps to replace in-court interpreters with pre-recorded, subtitled orientation videos or telephone calls for immigrants at their master hearings. This week, the Department of Justice (DOJ) started to implement the plan at immigration courts in New York and Miami, leading to confusion and concerns about due process, according to sources speaking to the Chronicle. Advocates and attorneys said the 20-minute video was full of legalese and difficult to understand, adding that the measure restricts immigrants and asylum seekers' ability to ask the judge questions.
The DOJ's Executive Office for Immigration Review, which oversees immigration courts, announced the new policy to immigration judges in June. According to former immigration judge Paul Wickham Schmidt, judges and interpreters were shocked by the decision and expressed skepticism as to whether it would actually improve the courts' efficiency and help reduce costs. In internal emails obtained by BuzzFeed, one judge reportedly said "the entire premise of this plan is wrongheaded."
"This move is just another step [in] the intentional 'dumbing down' of the immigration court process and the systematic dismantling of what little remains of constitutional due process for those pleading for their lives in a system doing its best to 'tune them out.' It will result in more illegal removal orders," Schmidt wrote on his blog.
In its attempt to speed up deportations and address the courts' backlog, the Trump administration has taken steps to hire more immigration judges. At the same time, the administration has imposed a quota system on judges to make decisions faster and limited their ability to administratively close cases, a mechanism often used to manage dockets according to a set of priorities. But a recent analysis by the Marshall Project shows that, in fact, such measures seem to be slowing down the immigration courts.
In response to the most recent decision, members of the Joint National Committee for Languages said in a statement: "We fear this policy will actually result in delayed hearings, furthering the backlog that is already approaching one million cases, as well as creating many more appeals cases when appellants cite unfair treatment or lack of adequate services."
The use of videoconferencing in immigration courts is often questioned by lawyers, experts, and advocates, as Stephen Franklin, Miriam Annenberg, and Ankur Singh reported for Pacific Standard earlier this month:
An extensive American Bar Association report in March on the nation's immigration courts pointed to lawyers' concerns about the "fundamental fairness" of video hearings and urged the government not to use video hearings for children in detention, who do not have attorneys.
In spite of the criticisms, and the call for limiting the use of video hearings to "procedural issues" by a 2017 federally funded study, the immigration courts have steadily expanded their use of video hearings, viewing them as solutions to backlogged courts nation-wide and a crunch of cases at the southern border.
And master hearings are particularly important because they determine how a case will proceed. Immigration judges explain about the right to counsel and provide information on any available protections against deportation, such as asylum. It's also during that first appearance that judges set dates for future hearings, and missing those could lead to a deportation order.