The New Court Tactic Helping ICE Deport Immigrants
On a recent Wednesday in Judge John J. Siemietkowski’s immigration courtroom at 26 Federal Plaza, an Ecuadorian mother logged on for her immigration hearing.
The court was well prepared for remote work. Lawyers waited patiently in their Webex boxes to unmute themselves and talk. The judge periodically toggled a device to point the camera toward others in the low-ceilinged, windowless room. He led the virtual participants in a round of applause to thank a translator appearing from North Carolina.
Except the mother did not get the same flexibility. The judge told her she had to come in person.
In fear of being arrested by the U.S. Immigrations and Customs Enforcement in the courthouse hallway, now happening commonly in New York, many immigrants have begged to do their hearings online from home. Yet even that temporary protection from deportation is now under threat. Interviews with court personnel and attorneys indicate a top-down pressure from the Trump administration toward in-person hearings, with fateful results. It’s the latest battlefront in the city’s immigration courts, which have become “the capital of immigration courthouse arrests.”
“We’ve had many clients who we’ve consulted with whose Webex motions were denied,” says Katherine Buckel, clinic supervisor for the immigration-law unit at The Legal Aid Society. “And then some were detained at the courthouses.”
One such case involved a Venezuelan family, whose request for a virtual hearing was turned down, according to Buckel. The husband was taken away when he showed up at court, leaving behind a pregnant wife and child.
Buckel runs a clinic trying to help people switch to virtual appearances for exactly this reason, but it’s not easy: Advocacy and legal groups including Legal Aid have gathered information on 39 immigration judges in the city and found that only 19 will consider allowing lawyerless people to appear online. Different judges have different policies, and in some courtrooms, lawyers may appear remotely even while their own clients are stranded in the room.
This leaves immigrants with a “horrible decision,” says Gillian Rowland-Kain of Immigrant Advocates Response Collaborative, which is made up of legal-service providers. If they show up as usual in lower Manhattan for their required hearings to adjudicate their ability to remain in the country, they risk arrest, like the man in last week’s viral video who was violently dragged away from his frantic wife and child inside 26 Federal Plaza. Skip the hearing, and they’ll typically be ordered removed in absentia, which means they “end up on ICE’s list and can be picked up at anytime,” she says.
Virtual teleconferences once seemed primed to become an unpoliticized boon for all involved, helping to expedite cases and expand access to counsel. The Executive Office for Immigration Review, a part of the Justice Department that conducts immigration-court proceedings, described video teleconferencing for hearings as a “proven success” as early as 2007. The immigration-court practice manual says that judges “are authorized by statute to hold hearings by video conference and telephone conference.” Concerns about how immigrants on-camera might be perceived by judges were dampened as the world adjusted to the pandemic.
“What we get is this very rapid adaptation to virtual hearings on the part of the immigration courts, and a big push for remote hearing altogether,” says Carmen Maria Rey Caldas, a former immigration judge. “The administration is actually quite comfortable with the entirety of a hearing being held remotely.”
This was on prime display in virtual and physical visits to 26 Federal Plaza courtrooms last week. There were the usual Zoom-style hiccups and people being informed that they were on mute. During one pause for technical difficulties, a judge made chitchat about an upcoming Balkans vacation. But most participants were clearly accustomed to remote hearings and saw their benefits. Distant translators trained in everything from Farsi to Spanish hopped on and off as needed. Judge Siemietkowski praised one lawyer for his inventive virtual background, which included a picture of a courtroom and a banner with his client’s information. Lawyers eyed their stacked calendars and asked if future hearings could be remote, smoothing their schedules, and Siemietkowski readily agreed. “As long as I’m here and unless the rules change, remote is fine,” he said.
Asked about current policy regarding virtual hearings, EOIR spokeswoman Kathryn Mattingly says that “respondents who do not have a representative of record will always have a default hearing medium of in person.” Some court regulars see an even broader push from the administration away from virtual hearings.
Rey Caldas, who was one of multiple judges controversially pushed out by the administration this summer, says that the ICE attorneys who function like prosecutors in immigration cases were ordered back to physical court this year. Judges who already leaned toward in-person appearances now had a reason to bring in other warm bodies. Rey Caldas also heard ICE starting to object on the record when immigrants appeared virtually to initial hearings, asking judges to order “all future appearances be in person” or for the individual to be simply ordered removed — a deportation sentence.
“I believe a lot of judges feel like there’s a push for in-person hearings,” she says.
Like some legal professionals with a background in defense, Rey Caldas personally prefers in person as physical proximity can heighten the sense that someone is understanding what she says. It can be procedurally easier to introduce immigrants to the process they’re entering if they’re in front of her. But in the current environment of courthouse arrests, a significant departure from past precedent, she and some other judges granted virtual requests “liberally, because we understood that it is more important for the advancement of justice to be able to have this person appear and proceed with their case.”
Rey Caldas is now gone, and there are other ways that new court customs are closing the virtual window for immigrants. One immigration attorney, who requested anonymity, had a case apparently switched to in person and was later told it was a mistake. This attorney also says the court-database system previously told respondents if their hearings were in person or internet-based. Recently, that info had disappeared, something other attorneys have corroborated. (EOIR says the info was provided “for convenience only” and court documents are the only official determinations.) Lawyers can check another system that still has the information. Immigrants without representation, however, may have little choice but to risk showing up in person just in case — or they try to log on and get chided for doing so.
That happened multiple times in Judge James Loprest’s Webex courtroom on Thursday. “We generally don’t take people through the video who lack lawyers,” Loprest said. The immigrants were told to come back in December.
For the Ecuadorean mother under a different judge’s purview, her physical return to 26 Federal Plaza came much sooner — that same day. At 1:40 p.m., 20 minutes before Judge Siemietkowski asked for their presence, she, her partner, and 3-year-old son showed up at his courtroom door.
“I thank you and I respect you” for coming in, the judge said, offering the 3-year-old some drawing material and promising to look at the child’s creation after the hearing. Then, for an hour and a half, he dealt with lawyers representing clients on his Webex screen, explaining that the attorneys might be due in court elsewhere and would be handled first. The boy climbed on a bench between his quietly attentive parents, whispering “Mama, Mama” and rolling a red toy truck over their bodies. At one point, the judge asked the parents to take their son outside so he could concentrate. When the mother’s turn came, the boy sat still and quiet.
It was an anti-climactic event. The judge set a date for her asylum hearing. Given his backlog of thousands of cases, that date was in 2029.
“A lot can happen, a lot can change” between now and then, Siemietkowski said. “God willing I’m still the judge.” He also added that “you know better than I do there have been a lot of changes the last few months, right?”
It was a nod to the arrests that have started happening steps from his dais. Earlier that morning, two Hispanic men coming out of the next courtroom in the hallway had been seized by federal agents. The Ecuadorean family walked slowly out of the courtroom, carrying backpacks and a packet of legal papers, and seemed relieved to see the empty hallway.
The father, carrying the boy, explained the obvious: “We were afraid of ICE.”
Related