After demonstrators began protesting outside a New York City immigration court and temporary detention facility, federal authorities started holding immigration hearings through video conference.
Last Thursday night, activists began a non-stop protest outside 201 Varick Street, the Manhattan facility that hosts the city’s largest ICE processing center. On Monday, ICE announced that it was postponing all immigration hearings in the building. On Tuesday, ICE told immigration attorneys that the hearings were back on, with one crucial caveat: judges and attorneys would be allowed into the building, but immigrants would now attend the hearings via teleconference from jails in New Jersey and upstate New York. On Wednesday, protesters called a stop to their action, making it unclear how long the video policy will remain.
Ben Simpson, an immigration attorney and co-chair of the American Immigration Lawyers Association’s ICE liaison committee in New York, said ICE informed him and other attorneys of the new policy on Tuesday, the second day of cancelled hearings.
“We’ve got a situation now where we’ve got an individual on a monitor, we’re gonna have a live judge, a live attorney, a live interpreter,” Simpson said. “You’re going to have the family in the courtroom. The one person who won’t be there is the person entitled to due process, and that’s the respondent.”
ICE told immigration attorneys that the new policy came in response to the protests, particularly an event early Friday morning during which protesters attempted to block an ICE van, leading to one protester’s arrest. An NYPD officer was reportedly injured during the scuffle, prompting ICE to declare in-person hearings a “security risk,” the New York Immigrant Family Unity Project, a pro bono legal service for immigrants said in a statement.
The court “did not hold hearings because detained respondents were not available to appear,” the Department of Justice told The Daily Beast. “Hearings scheduled at the Varick Street Immigration Court will be held via video-teleconference, as necessary, until DHS resumes transporting detained respondents to the immigration court.”ICE did not return a request for comment.
Unlike U.S. citizens, immigrants do not have a right to a government-appointed lawyer in immigration cases, which are administrative hearings with judges appointed by the Department of Justice and thus under the executive branch, not the judicial one. During an immigration hearing, which might range from a simple bond hearing to an asylum claim, judges will often consider a detainee’s credibility.
Trial-by-teleconference predates the Trump administration, Simpson said. But the method is more common outside New York, particularly in rural states where the nearest immigration court might be hundreds of miles from an ICE detention center. And its expansion to New York troubles some immigration attorneys, who worry about the policy’s effect on immigrants’ right to due process.
“The elements that go into a credibility determination are really unbounded, but some of the major ones are the person’s demeanor,” Simpson said. “People look at things like body language. Is the person fidgeting? Are they sweating? What does their voice sound like? A video disturbs every one of those observations. And if you’re going to give someone extremely bad news, it’s much easier to order someone deported and deny their release afterward when they’re just a face on video, rather than a body in court that’s interacting with other individuals in court.”
New York Immigrant Family Unity Project described the policy as a move to speed deportations.
“The decision by ICE to eliminate in-person appearances in court is a direct attack on people who have been waiting for months in detention for their opportunity to meet with attorneys, assert their legal right to remain in this country, and see their loved ones,” the group said.
“This is a byproduct of President Donald Trump’s most recent pronouncement that immigrants do not deserve the opportunity to go before an Immigration Judge and reflects Attorney General Jeff Sessions’ recent actions to prioritize speed and maximize deportation orders in court rather than ensure due process. As public defenders representing immigrants, we demand that ICE immediately resume bringing individuals to Varick Street to be heard and have their day in court.”
But Simpson said he didn’t see ICE’s claims about safety concerns as a trumped-up excuse.
“The other side of the argument is, yes you’re citing safety concerns, but is that a pretext? Because what you’re trying to do is make it harder on respondents or punish people who support them,” he said. “I don’t think that’s the case here, but I do think from the very top down, we have policy being filtered down through these local offices that’s about following the rule of law and that’s it … other considerations fall to the wayside as far as ICE is concerned in their mission to enforce the law.”
He cautioned demonstrators to consider the way federal agencies might respond to protests.
“I would just ask that people learn more about immigration law and policy and not paint with too broad a brush because there can be unintended, devastating consequences of good intentions,” Simpson said.
Activists said they attempted to accommodate ICE. New York Immigrant Family Unity Project said demonstrators moved their protest across the street and away from ICE’s loading bay doors by Tuesday, after ICE claimed they posed a security risk.
On Wednesday afternoon, the demonstrators ended their occupation altogether, citing the teleconferencing policy.
“We made this decision upon learning that ICE is retaliating against the occupation by not holding bond hearings or allowing access to pro bono legal representation again today,” the group Occupy ICE NYC said in a statement. They accused ICE of “leveraging the freedom of innocent people to stifle rapidly spreading resistance.”
It’s unclear whether in-person hearings will resume on the site. Until then, immigrants might be teleconferencing into less sympathetic court rooms.
With in-person representation, “attorneys have increased immigrants’ rate of winning their cases by a factor of ten, showing that approximately one-third of people arrested and brought to court by ICE are actually entitled to remain in this country under the law,” the NYIFUP said. “This new process will now deprive immigrants, many of whom have been waiting over three months, of their long-awaited opportunity to speak with a NYIFUP attorney at their first appearance.”