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This Article reports the findings of the first empirical study of the use of televideo technology to remotely adjudicate the immigration cases of litigants held in detention centers in the United States. Comparing the outcomes of televideo and in-person cases in federal immigration courts, it reveals an outcome paradox: detained televideo litigants were more likely than detained in-person litigants to be deported, but judges did not deny respondents' claims in televideo cases at higher rates. Instead, these inferior results were associated with the fact that detained litigants assigned to televideo courtrooms exhibited depressed engagement with the adversarial process—they were less likely to retain counsel, apply to remain lawfully in the United States, or seek an immigration benefit known as voluntary departure. Drawing on interviews of stakeholders and court observations from the highest-volume detained immigration courts in the country, this Article advances several explanations for why televideo litigants might be less likely than other detained litigants to take advantage of procedures that could help them. These reasons include litigants' perception that televideo is unfair and illegitimate, technical challenges in litigating claims over a screen, remote litigants' lower quality interactions with other courtroom actors, and the exclusion of a public audience from the remote courtroom. This Article's findings begin an important conversation about technology's threat to meaningful litigant participation in the adversarial process.
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Copyright 2015 by Ingrid V. Eagly Printed in U.S.A.
Vol 109, No. 4
933
REMOTE ADJUDICATION IN IMMIGRATION
Ingrid V. Eagly
ABSTRACTThis Article reports the findings of the first empirical
study of the use of televideo technology to remotely adjudicate the
immigration cases of litigants held in detention centers in the United States.
Comparing the outcomes of televideo and in-person cases in federal
immigration courts, it reveals an outcome paradox: detained televideo
litigants were more likely than detained in-person litigants to be deported,
but judges did not deny respondents’ claims in televideo cases at higher
rates. Instead, these inferior results were associated with the fact that
detained litigants assigned to televideo courtrooms exhibited depressed
engagement with the adversarial processthey were less likely to retain
counsel, apply to remain lawfully in the United States, or seek an
immigration benefit known as voluntary departure.
Drawing on interviews of stakeholders and court observations from
the highest-volume detained immigration courts in the country, this Article
advances several explanations for why televideo litigants might be less
likely than other detained litigants to take advantage of procedures that
could help them. These reasons include litigants’ perception that televideo
is unfair and illegitimate, technical challenges in litigating claims over a
screen, remote litigants’ lower quality interactions with other courtroom
actors, and the exclusion of a public audience from the remote courtroom.
This Article’s findings begin an important conversation about technology’s
threat to meaningful litigant participation in the adversarial process.
AuthorProfessor of Law, UCLA School of Law. I am indebted to
Joseph Doherty and Susan Long for their guidance, and to Steven Shafer
for his assistance coding the immigration court data presented in this
Article. Ahilan Arulanantham, Mario Barnes, Lenni Benson, Sam Bray,
Linus Chan, Scott Cummings, Sharon Dolovich, Alice Eagly, Laura
Gómez, David Hausman, Geoffrey Heeren, César García Hernández, Jill
Horwitz, Dan Kesselbrenner, Jennifer Koh, Jennifer Laurin, Julia Mass,
Jennifer Mnookin, Hiroshi Motomura, Jason Oh, Jaya Ramji-Nogales,
Emily Ryo, Steven Schulman, Joanna Schwartz, Juliet Stumpf, Yolanda
Vázquez, Beth Werlin, and Jordan Woods gave helpful feedback. Funding
for this study was generously provided by a grant from the Hellman
Fellows Program. Alexandra Grady-Reitan, Dan Lahana, Ivan Waggoner,
and Danielle Weiss provided excellent research assistance.
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INTRODUCTION ............................................................................................................. 934
I. IMMIGRATIONS REMOTE ADJUDICATION EXPERIMENT ............................................ 942
A. Televideo’s Rise in Detention ........................................................................ 944
B. Televideo Trials ............................................................................................. 949
II. COMPARING OUTCOMES IN TELEVIDEO AND IN-PERSON CASES................................ 957
A. Outcomes in the National and Active Base City Samples .............................. 960
B. Additional Factors that Could Affect Outcomes ............................................ 967
III. ON THE INSIDE OF TELEVIDEO COURTROOMS ........................................................... 971
A. Judicial Decisionmaking ............................................................................... 972
B. Litigant Disengagement ................................................................................. 977
CONCLUSION .............................................................................................................. 1000
APPENDIX ................................................................................................................... 1001
If you come into the courtroom and you see its a courtroom and you see the
judge at a big desk wearing a black robe, then you realize its a court. If you
take that same person and you put him in the video room . . . they see me
basically as a big, disembodied head on the television. How is that any
different than watching Peoples Court or Judge Judy or something like that?
They dont really, really get it sometimes. We get it because we do it all the
timethats our job. But Im not sure with the particular respondents whether
they realize sometimes what goes on.
1
INTRODUCTION
Over the past two decades, federal immigration courts have steadily
expanded their reliance on videoconferencing technology. In 2012 alone,
immigration judges conducted over 134,000 hearings in which the trial
judge and the immigrant litigant met over a television screen, rather than
face-to-face.
2
This reliance on technology is reserved almost exclusively
for immigrants held in detention. Today, nearly one-third of all detainees
attend their immigration hearings by video, rather than in the traditional in-
person courtroom setting.
3
If current trends continue, the majority of all
detained immigrants will soon be assigned to televideo courtrooms to
determine whether they will be deported from the United States.
4
1
Telephone Interview #48 with Representative, Natl Assn of Immigration Judges (Jan. 21, 2014)
(on file with author). To protect confidentiality, all interviews cited in this Article are referenced by
interview number, title, and organization type.
2
See infra Figures 1 & 2.
3
See infra Figure 4.
4
For examples of televideos continued expansion in immigration court, see Julia Preston,
Detention Center Presented as Deterrent to Border Crossings, N.Y. TIMES, Dec. 14, 2015, http://
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The Department of Justice characterizes remote adjudication as a
“force multiplier”
5
that assists overburdened immigration courts by
expediting the processing of cases,
6
enhancing judicial flexibility in case
management,
7
reducing transportation costs,
8
improving law enforcement
and courtroom safety,
9
and expanding access to counsel.
10
Despite such
claimed benefits, critics of televised adjudication express deep skepticism.
www.nytimes.com/2014/12/16/us/homeland-security-chief-opens-largest-immigration-detention-center-
in-us.html [http://perma.cc/DU5X-PX3Q] (announcing that immigration cases at the largest-yet
detention center in Dilley, Texas will be held by videoconference); Kate Linthicum, ICE Opens 400-
Bed Immigration Detention Center near Bakersfield, L.A. TIMES, Mar. 24, 2015, http://www.latimes.
com/local/lanow/la-me-ln-ice-immigration-detention-mcfarland-20150323-story.html [http://perma.cc/
F9RT-NXQZ] (revealing that immigrants held at a new detention facility in Bakersfield, California
will have their court hearings via live video feeds”).
5
FUNMI E. OLORUNNIPA, ADMIN. CONFERENCE OF THE U.S., AGENCY USE OF VIDEO HEARINGS:
BEST PRACTICES AND POSSIBILITIES FOR EXPANSION 33 (Apr. 22, 2011), available at https://
www.acus.gov/sites/default/files/documents/Revised-Draft-Report-on-Agency-Use-of-Video-Hearings-
4-22-11.pdf [https://perma.cc/B3VS-FQAY] (quoting a representative of the Executive Office for
Immigration Review (EOIR) as saying that the use of VTC technology to hold hearings is a force
multiplier).
6
See, e.g., EXEC. OFFICE FOR IMMIGRATION REVIEW, U.S. DEPT OF JUSTICE, EOIRS VIDEO
TELECONFERENCING INITIATIVE 1 (2009) [hereinafter VIDEO INITIATIVE], available at http://
www.justice.gov/eoir/press/VTCFactSheet031309.pdf [http://perma.cc/5SKY-TYPS] (claiming that
televideo expedites hearings); EXEC. OFFICE FOR IMMIGRATION REVIEW, U.S. DEPT OF JUSTICE, CHIEF
IMMIGRATION JUDGE INITIATIVE: IMMIGRATION COURT VTC REVIEW 1 (Jan. 2011) [hereinafter VTC
REVIEW] (on file with author) (obtained by author with FOIA request #2013-15953) (The use of VTC
in the immigration court is believed to be an efficient way to adjudicate cases and to meet the Case
Completion Goals for detained cases.).
7
John Stanton, The Technology the Government Uses for Immigration Hearings Doesnt Work
Right, BUZZFEEDNEWS (Aug. 11, 2014, 10:07 AM), http://www.buzzfeed.com/johnstanton/the-
technology-the-government-uses-for-immigration-hearings#.nh41JOK0Ds [http://perma.cc/DQU2-
FDZE] (quoting an EOIR official promoting televideo as a tool that provides coverage to locations
where [we do] not have a physical presence and, in areas where [we do] have a physical presence,
creates greater flexibility in docket management by enabling non-local judges to assist with hearing
cases) (alteration in original).
8
See, e.g., LENNI B. BENSON & RUSSELL R. WHEELER, ADMIN. CONFERENCE OF THE U.S.,
ENHANCING QUALITY AND TIMELINESS IN IMMIGRATION REMOVAL ADJUDICATION 94 (2012),
available at https://www.acus.gov/sites/default/files/documents/Enhancing-Quality-and-Timeliness-in-
Immigration-Removal-Adjudication-Final-June-72012.pdf [http://perma.cc/DM3E-LD7P] (Proponents
say VTC hearings save EOIR the cost of transporting judges and staff to hearing sites and saves DHS
costs of transporting detained respondents.).
9
See, e.g., id. at 92 (citing an EOIR official as explaining that televideo technology enhances
courtroom safety); ASSESSMENT OF THE INS ENCRYPTED MULTIMEDIA VIDEO TELECONFERENCING
PILOT at 22 [hereinafter INS ASSESSMENT] (on file with author) (noting that the benefits to the
Government of teleconferencing deportation proceedings include less exposure of law enforcement
officers to risks associated with transportation of prisoners).
10
See, e.g., BENSON & WHEELER, supra note 8, at 93 (VTC can increase the availability of
representation during hearings by enabling an attorney who is unable or unwilling to travel to the site of
a hearing to participate in the hearing from a remote location.); EXEC. OFFICE FOR IMMIGRATION
REVIEW, U.S. DEPT OF JUSTICE, THE IMMIGRATION JUDGE BENCHBOOK 3 (2014) [hereinafter
IMMIGRATION BENCHBOOK], available at http://www.justice.gov/sites/default/files/eoir/legacy/2014/
08/15/Televideo_Guide.pdf [http://perma.cc/S87K-WU5H] (claiming that remote adjudication can
improve the ability of counsel to represent detained aliens).
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Several influential immigration groups strenuously oppose the move away
from face-to-face courtrooms, arguing that the practice prejudices those
televideo respondents who pursue claims at trial.
11
Federal appellate courts
have warned that the practice might violate the statutory right to a fair
hearing, or even constitutional due process, if it were to affect the ultimate
decision at trial on the merits.
12
The limited academic scholarship
addressing remote immigration adjudication has joined in critiquing the
practice, primarily because of its potential to interfere with judicial fact-
finding at trial.
13
In defending against these concerns, court officials
consistently return to one central refrain: televideo is functionally
equivalent to in-person adjudication.
14
That is, it does not affect decisional
outcomes at trial.
15
Despite the divergence in views about televideo’s potential to
influence deportation trials, missing from either side of the discussion is an
exploration of the complementary relationship between remote adjudication
and litigant participation in the adversarial process. This oversight is
surprising because televideo technology infuses the entire court process,
11
See, e.g., Letter from Thomas M. Susman, Dir., Govt Affairs Office, Am. Bar Assn, to
Members of the Committee on Adjudication, Admin. Conference of the U.S. (Feb. 17, 2012), available
at http://www.americanbar.org/content/dam/aba/uncategorized/GAO/2012feb23_immigrationadjudica
tionreport_c.authcheckdam.pdf [http://perma.cc/NEV3-YNLU] (The ABA opposes using
videoconferencing . . . except in procedural matters in which the noncitizen has given consent.); Letter
from the American Immigration Council & the American Immigration Lawyers Association, to Jean
King, Acting Gen. Counsel, Exec. Office of Immigration Review 4 (Nov. 27, 2012), available at http://
legalactioncenter.org/sites/default/files/EOIR%20Reg%20Review%20Comments-FINAL%2011-27-12.
pdf [http://perma.cc/M45G-PHJZ] (recommending evidentiary hearings on the merits be conducted in
person).
12
See, e.g., Rapheal v. Mukasey, 533 F.3d 521, 53234 (7th Cir. 2008) (finding that the statutory
right to a fair hearing is violated if video has the potential for affecting the IJs view of [the
respondents] credibility and in turn the outcome of [the] case).
13
See, e.g., Aaron Haas, Videoconferencing in Immigration Proceedings, 5 PIERCE L. REV. 59, 82
(2006) (arguing that televideo violates due process); Emily B. Leung, Technologys Encroachment on
Justice: Videoconferencing in Immigration Court Proceedings, 14-07 IMMIGR. BRIEFINGS 1 (2014)
(arguing that videoconferencing interferes with the immigration judges ability to assess the
respondents credibility); Developments in the LawAccess to Courts, 122 HARV. L. REV. 1151, 1181
82 (2009) (concluding that videoconferencing obstructs the courts fact-finding process).
14
See, e.g., EXEC. OFFICE FOR IMMIGRATION REVIEW, QUESTIONS FROM THE ADMINISTRATIVE
CONFERENCE OF THE UNITED STATES REGARDING THE VIDEO HEARING PROCESS IN IMMIGRATION
ADJUDICATION AT EOIR 3 (2011) [hereinafter EOIR VIDEO HEARINGS] (on file with author)
(Generally, there is no difference [between video and in-person hearings] aside from the fact that in a
video hearing at least one party is not physically at the hearing location.); Letter from Michael F.
Rahill, Assistant Chief Immigration Judge, to Geoffrey Heeren, Legal Assistance Found. of Metro. Chi.
(Mar. 3, 2005) (on file with author) (describing televideo and in-person adjudication as functionally
equivalent).
15
EXEC. OFFICE FOR IMMIGRATION REVIEW, U.S. DEPT OF JUSTICE, EOIR HEADQUARTERS
IMMIGRATION COURT 1 (2004), available at http://www.justice.gov/eoir/press/04/HQICFactSheet.pdf
[http://perma.cc/3X2X-EE9S] (claiming that televideo hearings do[] not change the adjudicative
quality or decisional outcomes).
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not just the point when the case proceeds to trial and the judge is called
upon to issue a formal ruling on a litigant’s petition. Yet, the existing
debate does not consider the potential of televideo to shape the assertion of
rights by the litigant subjected to the procedure. These important rights
include the right to assert a claim to remain in the United States
16
and the
right to retain an attorney to assist in pursuing that claim.
17
This Article presents empirical findings from the first comprehensive
study of the federal immigration system’s experiment with remote
adjudication. One aspect of this research is quantitative analysis of a
comprehensive electronic database of all federal immigration court
proceedings collected by the Justice Department’s Executive Office for
Immigration Review and obtained for research through the Freedom of
Information Act.
18
These highly informative data include coding at the
individual hearing level for adjudicative medium (televideo or in person),
yet until now have never been independently analyzed for purposes of
understanding televideo adjudication.
As discussed in Part II of this Article, these data uncover a paradoxical
result: televideo cases were more likely to result in deportation,
19
yet there
was no statistically significant evidence that judges adjudicated deportation
cases more harshly over a video screen. Instead, when compared with
similar detained in-person cases,
20
detained televideo cases exhibited
depressed engagement with the adversarial process. Televideo litigants
were less likely to retain counsel,
21
pursue an application for permission to
16
A noncitizen found subject to removal by an immigration judge may apply for one or more
discretionary forms of relief, such as asylum or cancellation of removal. A noncitizen granted relief
from removal may remain lawfully in the United States. For a discussion of different types of relief
from removal, see infra notes 9195 and accompanying text.
17
Although there is a right to be represented by counsel in immigration proceedings, the expense of
counsel is borne by the respondent. 8 U.S.C. § 1229a(b)(4)(A) (2012) ([T]he alien shall have the
privilege of being represented, at no expense to the Government, by counsel of the aliens choosing
who is authorized to practice in such proceedings[.]”). See generally Ingrid V. Eagly, Gideon’s
Migration, 122 YALE L.J. 2282 (2013) (discussing how lessons from the criminal systems
establishment of a public defender might inform the evolution of the right to counsel in the immigration
system).
18
These Freedom of Information Act requests were made by the Transactional Records Access
Clearinghouse (TRAC), a data-gathering and research nonprofit organization at Syracuse University. I
gained access to these data through my appointment as a TRAC Fellow. See Transactional Records
Access Clearinghouse, TRAC Fellows Program (2011), http://trac.syr.edu/fellows/ [http://perma.cc/
H45N-2L6E].
19
See infra Figure 10 (showing that detained televideo removal cases were more likely to result in
deportation than detained in-person removal cases).
20
In order to ensure that similarly situated cases were used for this comparison of televideo versus
in-person adjudication, the data in this study were limited to only adult removal cases decided during
2011 and 2012 in which the respondents remained detained during the entire case. See infra Part II.
21
For readers interested in other issues regarding attorney representation in immigration court, see
Ingrid V. Eagly & Steven Shafer, A National Study of Access to Counsel in Immigration Court, 164 U.
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remain lawfully in the United States (known as relief),
22
or seek the right to
return voluntarily (known as voluntary departure).
23
Moreover, these
televideo versus in-person differences in litigant engagement remained
statistically significant
24
even when controlling for numerous factors that
could influence case outcomes, including prosecutorial charge type,
proceeding type, judge assignment, representation by counsel, nationality,
and fiscal year of decision.
25
When compared to similarly situated detained
televideo respondents, detained in-person respondents were a remarkable
90% more likely to apply for relief, 35% more likely to obtain counsel, and
6% more likely to apply only for voluntary departure.
26
By contrast, review of the immigration court’s own case data does not
support the conclusion that televideo courts assigned disadvantage in
allocating relief to detained immigrants who appeared on a television
screen. In other words, after controlling for numerous factors that could
influence decisionmaking on the merits (including the judge assigned to the
case, representation by counsel, prosecutorial charge type, nationality, and
fiscal year of decision), there was no statistically significant difference in
grant rates for relief and voluntary departure applications across televideo
and in-person detained cases.
27
Televideo must therefore be understood as
having an indirect relationship to overall substantive case outcomesone
linked to the disengagement of litigants who are separated from the
traditional courtroom setting.
PA. L. REV. 1 (forthcoming 2015) (presenting the results of the first national study of access to counsel
in removal proceedings).
22
See supra note 16.
23
A noncitizen in removal proceedings may apply for permission to leave the United States
voluntarily instead of by order of the immigration judge. 8 C.F.R. § 1240.11(b) (2015). Voluntary
departure is often considered to be a benefit, as it allows the immigrant to avoid certain harsh
consequences of a judge-issued removal order, such as bars to lawful readmission. However, given that
respondents granted voluntary departure must leave the country, this Article does not refer to voluntary
departure as a form of relief. This approach follows that adopted by EOIR, which defines voluntary
departure as a form of removal, not a type of relief. EXEC. OFFICE FOR IMMIGRATION REVIEW, U.S.
DEPT OF JUSTICE, FY 2012 STATISTICAL YEAR BOOK, at Q1 (2013) [hereinafter 2012 YEARBOOK],
available at http://www.justice.gov/eoir/statspub/fy12syb.pdf [http://perma.cc/RWD4-EG8S].
24
Most of the findings in this Article are significant at the most stringent p < 0.001 level, which
means that the probability of this result occurring by chance is less than one in one thousand. The
generally accepted threshold for statistical significance is 0.05, which indicates that the observed
differences are not consistent with being due to chance. ALAN AGRESTI & BARBARA FINLAY,
STATISTICAL METHODS FOR THE SOCIAL SCIENCES 154 (4th ed. 2009).
25
To aid interested readers, additional detail regarding the coding and analysis of the immigration
court data is provided in this Articles Appendix.
26
These percentages are based on the differences in predicted probabilities calculated from the
logit regression on the Active Base City Sample of detained removal cases displayed in Figure 11,
infra.
27
See infra Part II.
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Analysis of the immigration court data also demonstrates that reliance
on televideo is reshaping immigration adjudication in profound ways that
have thus far been underappreciated. Although government officials often
describe televideo as “an important hearing tool” that promotes efficiency
in all types of immigration cases,
28
in practice it is used almost exclusively
to adjudicate the cases of detained immigrants.
29
In addition, these
televideo cases, when compared to similar detained cases litigated in
person, are resolved more quicklyin fewer days and with fewer trials.
30
Far from a neutral adjudicative tool, televideo should instead be understood
as an intentional design element of a rapidly evolving detention-to-
deportation pipeline.
To clarify these quantitative findings, I turn to research I conducted
during a series of visits to immigration courts and detention centers.
31
This
qualitative investigation included site visits to six of the highest volume
televideo jurisdictions in the country: Chicago, Elizabeth (New Jersey),
Houston, Los Angeles, Newark, and San Antonio. During these visits I
observed in-person and televideo hearings at thirteen different hearing
locations.
32
In addition to attending court sessions, I attended know-your-
rights sessions offered by nonprofit organizations to educate unrepresented
detainees about the court process.
33
My research also benefitted from the
28
BRIAN M. OLEARY, CASE MANAGEMENT AND OPERATING POLICIES: HEARINGS CONDUCTED
BY VIDEO-CONFERENCE IN THE IMMIGRATION COURTS 4 (2007) [hereinafter CASE MANAGEMENT AND
OPERATING POLICIES] (on file with author) (detailing The Advantages of televideo, such as reduced
travel time and costs and increased pro bono representation, and concluding by advising
immigration judges: Video is an important hearing tool. Learn to use it!).
29
See infra Figure 2. Although I frequently use the term immigrant or noncitizen to describe
the subject of removal proceedings, this terminology is not meant to diminish the very real problem of
the governments placement of United States citizens in deportation proceedings. See generally Rachel
E. Rosenbloom, The Citizenship Line: Rethinking Immigration Exceptionalism, 54 B.C. L. REV. 1965,
196871 (2013) (exploring the complexity of having citizenship determined in the context of a
deportation proceeding).
30
See infra Figure 7 & notes 14345.
31
Mixing quantitative and qualitative approaches can produce a better understanding of many
research problems. See JOHN W. CRESWELL & VICKI L. PLANO CLARK, DESIGNING AND CONDUCTING
MIXED METHODS RESEARCH (2d ed. 2011).
32
I observed in-person detained removal hearings in Chicago, Elizabeth (New Jersey), Houston,
Los Angeles, and Pearsall (Texas). In addition, to improve my comparative understanding, I observed
televideo detained hearings together with the detainees at the following locations: Texas State
Penitentiary at Huntsville in Huntsville, Texas; Karnes County Civil Detention Center in Karnes City,
Texas; Kenosha County Detention Center in Kenosha, Wisconsin; and Essex County Correctional
Facility in Essex, New Jersey. In these settings, I observed the judge and other courtroom participants
on the video screen. In addition, I observed televideo removal hearings (together with the judge,
prosecutor, and immigrant counsel) in the following detained immigration courtrooms: Chicago,
Elizabeth, Los Angeles, Newark, and San Antonio.
33
I attended the nonprofit know-your-rights information sessions held at the following detention
locations: Elizabeth Contract Detention Facility in Elizabeth, New Jersey; Houston Contract Detention
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opportunity to tour six different detention centers and jails that house
immigrants awaiting their court hearings.
34
Finally, my inquiry into televideo practices draws on the expertise
shared during forty-nine in-depth interviews with people familiar with the
practice of immigration adjudication.
35
To aid in identifying individuals
suitable for participation in the study, I contacted persons in supervisory
positions at nonprofit legal services organizations,
36
attorneys appearing on
the court’s list of free and low-cost immigration providers,
37
partners at law
firms with immigration expertise,
38
leaders of major immigration
organizations,
39
representatives of the National Association of Immigration
Judges,
40
and prosecutors with Immigration and Customs Enforcement
(ICE).
41
Interviews with detainees were not included due to restrictions
placed by immigration officials on communicating with immigrants held in
detention facilities.
42
Facility in Houston, Texas; South Texas Detention Facility in Pearsall, Texas; Kenosha County
Detention Center in Kenosha, Wisconsin; and Essex County Correctional Facility in Essex, New Jersey.
34
ICE and correctional officials hosted tours for me at the following detention facilities: Elizabeth
Contract Detention Facility, Essex County Correctional Facility, Kenosha County Detention Center,
Houston Contract Detention Facility, Karnes County Civil Detention Center, and South Texas
Detention Facility.
35
I conducted these semistructured interviews with the informed consent of participants pursuant to
a protocol approved by the UCLA Institutional Review Board.
36
For example, I contacted court-based programs, law school immigration clinics, and immigrant
legal services organizations.
37
See Exec. Office for Immigration Review, Free Legal Services Providers, U.S. DEPT OF
JUSTICE, http://www.justice.gov/eoir/probono/states.htm [http://perma.cc/C2CP-CF6G].
38
In California and Texas, the process of identifying attorneys with immigration expertise was
aided by state bar specializations in immigration law.
39
For example, I contacted the local officers of the American Immigration Lawyers Association,
attorneys practicing at the firms and organizations on the courts list of free legal services providers,
and attorneys designated as accepting detained cases on a list published by the National Immigration
Project of the National Lawyers Guild.
40
See FAQs, NATL ASSN OF IMMIGR. JUDGES, http://naij-usa.org/faqs/ [http://perma.cc/7E7E-
XXEW] (In 1979, the NAIJ was designated as the recognized representative for collective bargaining
for all U.S. Immigration Judges.). Although I invited EOIR officials in Washington, D.C. to participate
in the study, EOIR declined my interview request.
41
The agency ultimately declined to have local ICE attorneys participate in the study. However, the
Director of Field Operations for ICE participated in an interview on behalf of the prosecutorial branch
of ICE.
42
Citing security and other concerns, ICE has regularly denied researchers permission to interview
detainees. See, e.g., LEGAL ASSISTANCE FOUND. OF METRO. CHI. & CHI. APPLESEED FUND FOR
JUSTICE, VIDEOCONFERENCING IN REMOVAL HEARINGS: A CASE STUDY OF THE CHICAGO
IMMIGRATION COURT 6 (2005) [hereinafter CHICAGO STUDY], available at http:// chicagoappleseed.org/
wp-content/uploads/2012/08/videoconfreport_080205.pdf [http://perma.cc/V5RW-YEYZ] (noting that
ICE refused to allow us to interview immigrants held in detention centers regarding their court
experience); Nina Rabin, Unseen Prisoners: Women in Immigration Detention Facilities in Arizona,
23 GEO. IMMIGR. L.J. 695, 710 (2009) (explaining that researchers repeatedly requested permission
from ICE to interview detainees held in a county jail, but these requests were denied).
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This on-the-ground assessment of the inner workings of detained
adjudication suggests that a number of factors are at play in the depressed
engagement of televideo litigants. As developed in Part III, televideo
litigants may decline to participate in a system they perceive as unjust or
rigged to yield unfavorable results. Immigrants forced to pursue a case over
a video screen often appear bewildered or confused and may experience the
process as less “real.” Placement away from the physical courtroom
separates the immigrant from other courtroom actors, including the judge,
prosecutor, and respondent’s counsel. Detainees and their attorneys are
frequently discouraged by the numerous logistical and technical difficulties
associated with litigating televideo cases, such as unpredictable
interruptions in the video feed, challenges in communicating with
interpreters not physically present in the same room, and the impossibility
of confidential attorneyclient communication over a public courtroom
screen. Detainees removed from the courtroom by the video procedure may
be less likely to understand their rights in the removal process, less likely to
request a court continuance to find a lawyer, and, especially for those who
cannot find or afford an attorney, less equipped to assert their claims and
file the required paperwork. For judges, advising litigants of their rights can
be awkward and less effective over a screen than face-to-face in the formal
setting of a courtroom. Yet another factor that could promote televideo
litigants’ waiver of rights is their physical separation from the courtroom
audience, including family and supportive community members, due to
detention facility rules that prevent the public from attending hearings at
remote locations.
Opposition to remote adjudication has relied on the conventional
wisdom that the practice unfairly tilts the balance against litigants at trial.
This Article fails to confirm that standard hypothesis, but instead
introduces an entirely new and serious concern into the debate: the
potential of remote adjudication to interfere with meaningful participation
in the adversarial process.
43
This lack of participation matters because, with
less attorney involvement and claimmaking by immigrants, televideo cases
are more likely to result in deportation. Moreover, although this Article
remains focused on the televideo debate in the immigration system, its
finding of interference with access to justice is relevant in other contexts,
such as administrative and criminal proceedings, which are increasingly
43
As such, this Article responds to the call of socio-legal scholars to pay more attention to what
happens in the early stages of disputes and to the factors that determine whether litigants assert and
vigorously pursue potential claims. William L.F. Felstiner et al., The Emergence and Transformation of
Disputes: Naming, Blaming, Claiming . . ., 15 LAW & SOCY REV. 631, 636 (1981).
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turning to remote technology in hopes of enhancing courtroom efficiency.
44
So long as participation in the process suffers, remote adjudication cannot
be defended as the modern functional equivalent of the traditional
courtroom.
This Article proceeds in three parts. Part I traces televideo’s expansion
in detained immigration courts and introduces readers to the basics of
immigration court procedures. Part II sets forth the key quantitative
findings based on analysis of the immigration court’s own administrative
database of immigration court cases. Finally, Part III relies on my in-depth
qualitative investigation of detained immigration adjudication to offer some
potential explanations for the asymmetrical patterns observed in the data
among litigants in pursuing relief, but not among courts in allocating relief.
I. IMMIGRATIONS REMOTE ADJUDICATION EXPERIMENT
Federal immigration courts collectively handle over 300,000 trial-
level immigration cases a year and employ over 250 immigration judges.
45
Today’s immigration bench sits in sixty different geographic jurisdictions,
46
referred to in practice as “base cities.” Many base cities have several
different hearing locations, including hearing locations located inside
prisons, jails, and detention centers.
47
Immigration judges are appointed by
the Attorney General and serve as employees of the Department of
Justice’s Executive Office for Immigration Review (EOIR), rather than as
part of the federal judiciary.
48
44
For example, the Administrative Conference of the United States has enthusiastically
recommended that federal government agencies with high-volume caseloads adopt videoconferencing
for improved efficiency in adjudication. COMM. ON ADJUDICATION, ADMIN. CONFERENCE OF THE U.S.,
AGENCY USE OF VIDEO HEARINGS: BEST PRACTICES AND POSSIBILITIES FOR EXPANSION 34 (2011),
available at https://www.acus.gov/sites/default/files/documents/Proposed-Recommendation-Video-
Hearings-5-18-2011.pdf [https://perma.cc/BQ6T-AXV6]. The criminal justice system also routinely
relies on televideo, including for preliminary hearings, arraignments, and bail hearings. Anne Bowen
Poulin, Criminal Justice and Videoconferencing Technology: The Remote Defendant, 78 TUL. L. REV.
1089, 114256 (2004).
45
See 2012 YEARBOOK, supra note 23, at B7 fig.2 (reporting that immigration courts received
317,930 proceedings in fiscal year 2012); EOIR Immigration Court Listing, U.S. DEPT OF JUSTICE (last
updated Feb. 2015), http://www.justice.gov/eoir/sibpages/ICadr.htm [http://perma.cc/T5A3-6C3L]
(listing immigration judges by court jurisdiction).
46
See EOIR Immigration Court Listing, supra note 45.
47
For example, the base city of San Antonio, Texas includes hearing locations at the Karnes
County Civil Detention Center, the Pearsall Detention Facility, the Hutto Residential Facility, and the
Laredo Detention Facility. See Exec. Office for Immigration Review, List of EOIR Immigration Courts,
Document #5 (obtained by author with FOIA request #2013-20913 on Dec. 2, 2014) (on file with
author).
48
8 C.F.R § 1003.0 (2015) (describing the organization of EOIR within the Department of Justice).
For a proposal that the immigration courts be restructured as Article I courts, see Dana Leigh Marks, An
Urgent Priority: Why Congress Should Establish an Article I Immigration Court, 13 BENDERS
IMMIGR. BULL. 3 (2008).
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Immigration judges are charged with the power to order immigrants
deported.
49
Some individuals charged in immigration courts may in fact be
United States citizens.
50
Others are lawful permanent residents, but subject
to removal based on alleged immigration law violations.
51
Still others are
present without lawful immigrant status but are nonetheless eligible to
remain lawfully in the United States.
52
For readers unfamiliar with immigration law, it is important to
acknowledge that many of the immigrants held in detention centers are not
awaiting court hearings.
53
Instead, an increasingly large number of
detainees are removed from the United States without a court order. For
example, especially when immigrants are apprehended along the border,
law enforcement officials may allow them to depart on their own without
filing any charges in court.
54
Immigrants convicted of certain crimes who
are not lawful permanent residents are subject to “administrative removal”
without a hearing in immigration court.
55
Immigrants previously ordered
deported by an immigration judge routinely have their prior orders
administratively “reinstated from its original date” without judicial
review.
56
Similarly, pursuant to a process known as “expedited removal,”
recent border entrants may be summarily turned back without ever stepping
foot in a courtroom (or appearing in a court via video).
57
Seen in this
49
8 U.S.C. § 1229a(a)(1) (2012).
50
These citizenship cases include individuals born in the United States as well as those who
derived citizenship through a parent. See Rosenbloom, supra note 29, at 1972 (explaining how
citizenship claims occur in deportation cases and citing statistics on the number of United States
citizens detained or deported).
51
For example, a lawful permanent resident convicted of an aggravated felony is deportable.
8 U.S.C. § 1227(a)(2)(A)(iii).
52
For example, certain undocumented battered immigrants may be eligible to gain status as lawful
permanent residents based on their familial relationship to the batterer. Id. § 1229b(b)(2). As I have
previously argued, immigration status may best be understood as existing along a spectrum, rather than
sharply divided between unlawful and lawful status. Ingrid V. Eagly, Criminal Justice for Noncitizens:
An Analysis of Variation in Local Enforcement, 88 N.Y.U. L. REV. 1126, 113637 (2013).
53
According to Department of Homeland Security statistics, only 230,000 of the 419,384
noncitizens removed from the United States in 2012 saw an immigration judge. JOHN F. SIMANSKI &
LESLEY M. SAPP, U.S. DEPT OF HOMELAND SEC., IMMIGRATION ENFORCEMENT ACTIONS: 2012, at 1
2, 5 (2013), available at https://www.dhs.gov/sites/default/files/publications/ois_enforcement_ar_2012
_1.pdf [https://perma.cc/K9JN-MFPM].
54
8 C.F.R. § 240.25 (2015) (granting officers the authority to permit aliens to depart voluntarily
from the United States . . . in lieu of being subject to proceedings).
55
8 U.S.C. § 1228(b)(1) (2012) (allowing the removal of aliens convicted of committing
aggravated felonies).
56
Id. § 1231(a)(5).
57
Id. § 1225(b)(1)(A)(i). For example, expedited removal applies to individuals apprehended
within 100 miles of the border that have not been in the country for more than two weeks. Designating
Aliens for Expedited Removal, 69 Fed. Reg. 48,877, 48,880 (Aug. 11, 2004).
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broader context, deportation by order of a federal immigration judge is but
one component of current immigration enforcement efforts.
58
The remainder of this Part describes the history and development of
the televideo mode of adjudication in immigration courts. Remote
adjudication began as a small-scale experiment in Chicago and soon
expanded to court locations across the United States. Yet, as the empirical
analysis presented in this Part establishes, the transition to remote
adjudication has been reserved almost exclusively for the cases of detained
immigrants.
A. Televideo’s Rise in Detention
Traditionally, most immigration court proceedings were held in
downtown urban courts, with all participants attending in person. In cases
involving pretrial detention, detainees were transported from the detention
facility to attend court hearings in the physical presence of the judge. Some
detention facilities were in close proximity to the immigration court,
whereas others required traveling an hour or more on an early morning bus.
As detained populations grew, some immigration courts opted to instead
hold court inside detention centers.
59
Judges and court staff would travel
“on detail” and set up courtrooms inside the jails and prisons that housed
immigrants awaiting their hearings.
60
Televideo represents a new adjudicative approach that instead
connects the detained immigrant with the judge, prosecutor, and other court
personnel via a bidirectional video stream.
61
Courts equipped with televideo
58
As Jennifer Chacón has noted, [r]emovals are merely the tip of the iceberg with regard to
enforcement actions. Jennifer M. Chacón, A Diversion of Attention? Immigration Courts and the
Adjudication of Fourth and Fifth Amendment Rights, 59 DUKE L.J. 1563, 1565 (2010). See also Jill E.
Family, A Broader View of the Immigration Adjudication Problem, 23 GEO. IMMIGR. L.J. 595, 61132
(2009) (summarizing the methods, aside from removal hearings, that the government uses to remove
noncitizens); Shoba Sivaprasad Wadhia, The Rise of Speed Deportation and the Role of Discretion,
5 COLUM. J. RACE & L. 1, 2 (2015) (documenting a rise in speed removals in which immigrants never
see a courtroom or an immigration judge, and are instead subjected to a limited set of procedural
protections leading to speedy removals).
59
Institutional Hearing Program: Hearing Before the Subcomm. on Immigration and Claims of the
H. Comm. on the Judiciary, 105th Cong. 41 (1997) [hereinafter IHP Hearings] (prepared statement of
Michael J. Creppy, Chief Immigration Judge).
60
Interview #14 with Partner, Small-Size Law Firm (Aug. 7, 2013) (on file with author)
(explaining that prior to the introduction of videoconferencing, judges used to circuit-ride to conduct
live, in-person hearings for people at prisons and detention centers); Interview #47 with
Representative, Natl Assn of Immigration Judges (Nov. 21, 2014) (on file with author) (We were
doing it a lot. Each of us had prisons . . . we call it detail.’”).
61
For a discussion of the use of videoconferencing in other courtroom settings, including for
criminal trials and remote witness testimony, see Nancy Gertner, Videoconferencing: Learning Through
Screens, 12 WM. & MARY BILL RTS. J. 769 (2004); Fredric I. Lederer, The Road to the Virtual
Courtroom? A Consideration of Todaysand TomorrowsHigh-Technology Courtrooms, 50 S.C. L.
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technology follow the same basic procedures as in-person courts, the key
exception being that the immigrant now remains at the detention facility
and watches the court proceedings on a television screen in the facility’s
video room. The judge remains in the traditional courtroom with his or her
courtroom deputy and court staff, and the immigrant is projected onto a
television screen in the courtroom.
62
Typically, the prosecutor, interpreter,
and any respondent’s counsel remain in the courtroom with the judge rather
than traveling to the detention facility to appear on video with the
immigrant.
63
Televideo was introduced to immigration courts in the 1990s. The
initial experiment with video technology linked immigration judges in
Chicago, Illinois, with immigrants held at a Federal Bureau of Prisons
facility in Lexington, Kentucky.
64
Despite some technical problems,
65
court
officials concluded that the Chicago initiative was a success. The pilot
program was credited with reducing travel costs, decreasing “exposure of
law enforcement officers to risks associated with transportation of
prisoners,” and improving judges’ hearing schedules.
66
In 1996, Congress authorized the use of televideo in all immigration
proceedings.
67
Under the new law, televideo and in-person hearings became
interchangeable modes of adjudication.
68
The immigration court could now
conduct all hearings by televideo without ever obtaining consent of the
immigrant respondent.
REV. 799 (1999); Michael D. Roth, Note, Laissez-Faire Videoconferencing: Remote Witness Testimony
and Adversarial Truth, 48 UCLA L. REV. 185 (2000).
62
I was not permitted to photograph the interior of immigration courts. However, for a photograph
of the standard video screen used in televideo courtrooms, see EXEC. OFFICE FOR IMMIGRATION
REVIEW, DIGITAL AUDIO RECORDING USER MANUAL 12 fig.3-1 (2012) (obtained by author with FOIA
request #2014-7182) (on file with author).
63
I did observe a few exceptions to this standard arrangement. For example, in Los Angeles the
interpreter remained at the remote location (Adelanto, California). In Houston, the prosecutor remained
at the remote location (Huntsville, Texas). In one hearing in San Antonio, a respondents counsel
appeared with her client at the remote location (Taylor, Texas).
64
Memorandum from Lynn E. Petersburg, Deputy Exec. Officer, Office of Mgmt. & Admin, Exec.
Office for Immigration Review, U.S. Dept of Justice, to Jim Moore, Telecomm. Specialist,
Immigration & Naturalization Serv. 1 (Jan. 5, 1994) (on file with author).
65
Id. at 2 (outlining a number of system modifications that need to be implemented, including
the need for telephoto lenses so that facial expressions can be discerned); Letter from Alan Shelton,
Assistant Commr, Sys. Integration Div., U.S. Dept of Justice, to Joan Higgins, Assistant Commr,
Detention & Deportation, U.S. Dept of Justice (Oct. 20, 1994) (on file with author) (noting that the
video equipment utilized [in the pilot] was not of the highest quality nor was its configuration well
suited for the hearings).
66
INS ASSESSMENT, supra note 9, at 22.
67
Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208,
§ 304, 110 Stat. 3009-546, 3009-589 (codified at 8 U.S.C. § 1229a(b)(2)(A)(iii) (2012)).
68
8 C.F.R. § 1003.25(c) (2015) (An Immigration Judge may conduct hearings through video
conference to the same extent as he or she may conduct hearings in person.).
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It is unclear how often immigration courts employed televideo in the
period immediately following congressional authorization of its use. In
these early years of televideo’s implementation, as seen in Figure 1, most
immigration hearings were not coded for adjudicative medium.
69
From
2007 to 2012, however, the data consistently recorded whether immigration
hearings were conducted in person, by televideo, or, much less frequently,
by telephone.
70
For these six more recent years, televideo can be reliably
analyzed because the adjudicative medium variable is known in 97% of
hearing records.
FIGURE 1: CODING OF IMMIGRATION HEARINGS, BY ADJUDICATIVE MEDIUM,
FISCAL YEARS 19912012
71
69
An earlier effort to quantitatively study televideo in asylum cases suffers from the fatal flaw of
relying on televideo data during the pre-2007 time period when the adjudicatory medium variable was
not reliably populated. See Frank M. Walsh & Edward M. Walsh, Effective Processing or Assembly-
Line Justice? The Use of Teleconferencing in Asylum Removal Hearings, 22 GEO. IMMIGR. L.J. 259,
27172 (2008).
70
My analysis of the data reveals that during the time period from 2007 to 2012, only 1% of
adjourned immigration hearings were by telephone. As I observed in my site visits, telephone
adjudication is generally discouraged by immigration judges and, unlike televideo, requires the
respondents signed consent for use at individual evidentiary hearings on the merits. 8 C.F.R.
§ 1003.25(c).
71
Figure 1 and other figures in this Article reporting hearings by fiscal year rely on the scheduled
adjournment date of the hearing to classify fiscal year.
In Person
Televideo
Telephone
Missing Data
0
100
200
300
400
500
600
700
800
854
Hearings (Thousands)
1991 1994 1997 2000 2003 2006 2009 2012
Fiscal Year
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Figure 1 also captures the steady increase in televideo’s use. During
this six-year period from 2007 to 2012, the absolute number of televideo
hearings increased nearly three-fold. As Figure 2 depicts, however,
virtually all of this growth in televideo hearings involved individuals who
began their cases in detention. Despite having the authority to adjudicate all
immigration cases by televideo, immigration courts have reserved the
televideo tool almost exclusively to adjudicate detained cases.
FIGURE 2: TELEVIDEO IMMIGRATION HEARINGS, BY DETENTION STATUS,
FISCAL YEARS 20072012
72
This finding of heavy televideo use in detention was confirmed by my
site visits. One of the rare examples of televideo being used for cases not
involving detention occurred in Newark, New Jersey, where an
immigration judge transitioning to a different jurisdiction continued to hear
his pending nondetained Newark cases by televideo during the transition
period. Another example occurred in Chicago, where a judge sitting in
Arlington provided occasional backup by televideo on nondetained cases to
alleviate strain on the overburdened Chicago judges.
The rise of televideo parallels a corresponding increase in the practice
of detaining immigrants while their cases are adjudicated.
73
Indeed,
72
Figure 2 contains all hearings, regardless of proceeding type, held in immigration courts, by
fiscal year of adjournment of the hearing.
73
For an introduction to the role of detention in immigration enforcement, see Anil Kalhan,
Rethinking Immigration Detention, 110 COLUM. L. REV. SIDEBAR 42 (2010).
Began Detained
Never Detained
20
40
60
80
100
120
5
130
Televideo Hearings (Thousands)
2007 2008 2009 2010 20112012
Fiscal Year
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Congress’s 1996 authorization of televideo hearings without respondent
consent coincided with a major expansion of the detention laws,
74
including
mandatory detention for immigrants subject to removal on certain criminal
grounds.
75
My analysis of immigration court data shows that the number of
detained removal proceedings increased by one-third between 2002 and
2012.
76
To sustain this trend of detaining immigrants as they litigate their
court cases, today there are an impressive 34,000 beds maintained
exclusively for immigration detainees.
77
Despite the fact that the majority
of detainees do not have criminal records,
78
this bed space includes rented
halls of local jails, as well as state and federal prisons.
79
As Figures 1 and 2
reveal, much of the court capacity for handling these detained cases now
relies on televideo adjudication. Moreover, signaling that this trend may
continue, the federal government’s newest detention facilities were
intentionally designed to rely on televideo adjudication.
80
Having documented televideo’s close nexus to the growing practice of
detaining immigrant litigants, the next Section introduces readers to the
basics of immigration removal, focusing on the role of televideo at
different stages in the process.
74
See César Cuauhtémoc García Hernández, Immigration Detention as Punishment, 61 UCLA L.
REV. 1346, 136162 (2014) (reviewing the various laws passed in the 1980s and 1990s that expanded
federal detention authority).
75
8 U.S.C. § 1226 (2012); see generally Geoffrey Heeren, Pulling Teeth: The State of Mandatory
Immigration Detention, 45 HARV. C.R.-C.L. L. REV. 601, 61011 (2010) (describing the steady
expansion in criminal grounds for mandatory detention).
76
My analysis of the EOIR data reveals that immigration courts completed 101,827 detained
removal proceedings in 2012, up from only 76,142 in 2002. See Appendix (describing EOIR data
analyzed for this Article).
77
See generally Nick Miroff, Controversial Quota Drives Immigration Detention Boom, WASH.
POST (Oct. 13, 2013), http://www.washingtonpost.com/world/controversial-quota-drives-immigration-
detention-boom/2013/10/13/09bb689e-214c-11e3-ad1a-1a919f2ed890_story.html [http://perma.cc/
N6SF-YKQT] (discussing a bed mandate that requires ICE to keep an average of 34,000 detainees in
custody). As Deputy Homeland Security Secretary Alejandro Mayorkas told the press in the summer of
2014, [w]e are surging resources to increase our capacity to detain individuals and adults with
children, and to handle immigration court hearings. Molly Hennessy-Fiske et al., Obama
Administration Acts to Ease Immigration Legal Crunch at Border, L.A. TIMES, June 20, 2014, http://
www.latimes.com/nation/nationnow/la-na-nn-border-migrants-white-house-20140620-story.html#page
=1 [http://perma.cc/5Y4V-BX9T].
78
Michelle Roberts, Most Immigrants in Detention Did Not Have Criminal Record, Reports AP,
HUFFINGTON POST (Apr. 15, 2009), http://www.huffingtonpost.com/2009/03/15/most-immigrants-in-
detent_n_175118.html [http://perma.cc/GSQ5-LZKL] (reporting that data obtained with a public
records request show that of 32,000 immigrants held in detention on January 25, 2009, 18,690
immigrants had no criminal conviction, not even for illegal entry or low-level crimes like trespassing).
79
For additional discussion of the growth in detention to house immigrants during deportation
proceedings, see Alina Das, Immigration Detention: Information Gaps and Institutional Barriers to
Reform, 80 U. CHI. L. REV. 137 (2013); Rabin, supra note 42.
80
See generally supra note 4.
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B. Televideo Trials
Detained removal cases begin when immigration authorities
apprehend noncitizens and formally charge them with removal in a “Notice
to Appear.”
81
Sometimes the initial arrest is by local police, who screen for
immigration status and transfer the noncitizen to federal immigration
authorities.
82
Court cases for immigrants who remain detained during the
entire process take anywhere from a few days to a few years, depending on
the complexity of the case, court backlogs, and other factors.
83
The first court hearing in the removal process is known as the master
calendar hearing.
84
During the master calendar hearing, the immigrant
responding to the government’s charge—referred to as the respondentis
advised of contents of the Notice to Appear. Unrepresented respondents are
informed of their right to obtain counsel at their own expense and given a
list of free legal services providers.
85
Immigration judges also have an
obligation to advise respondents of their right to seek relief from removal.
86
As I observed in my site visits and confirmed in my interviews, a
group of detained immigrants will often appear together in a mass initial
hearing, rather than individually.
87
In these mass hearings, basic rights are
explained to the entire group, normally followed by an individualized
81
8 C.F.R. § 1240.10 (2015).
82
See generally Ingrid V. Eagly, Local Immigration Prosecution: A Study of Arizona Before SB
1070, 58 UCLA L. REV. 1749 (2011) (discussing ways in which local police enforcement of criminal
law can lead to deportation). As Hiroshi Motomura has argued, the decision to arrest is the stage of
discretion that matters the most in determining who actually is removed from the United States.
Hiroshi Motomura, The Discretion that Matters: Federal Immigration Enforcement, State and Local
Arrests, and the CivilCriminal Line, 58 UCLA L. REV. 1819, 1829 (2011).
83
The average number of days to adjudicate a detained removal merits proceeding in fiscal years
2007 to 2012 was twenty-six days (standard deviation of eighty-four days), with a median time to
completion of one day. However, as discussed in Part II.A, average adjudication times for detained
removal proceedings with claims for relief were much longer. See infra Figure 7 & notes 14345. For
additional analysis of case adjudication times in removal cases, see Eagly & Shafer, supra note 21.
84
EXEC. OFFICE FOR IMMIGRATION REVIEW, U.S. DEPT OF JUSTICE, THE IMMIGRATION COURT
PRACTICE MANUAL § 4.15(a), at 67 (2009) [hereinafter COURT PRACTICE MANUAL], available at http://
www.justice.gov/eoir/vll/OCIJPracManual/Practice_Manual_review.pdf [http://perma.cc/EU8T-2YGT]
(A respondents first appearance before an Immigration Judge in removal proceedings is at a master
calendar hearing.).
85
8 C.F.R. § 1240.10(a)(1)(3).
86
Id. § 1240.11(a)(2) (The immigration judge shall inform the alien of his or her apparent
eligibility to apply for any of the benefits enumerated in this chapter and shall afford the alien an
opportunity to make application during the hearing . . . .”).
87
See, e.g., Telephone Interview #27 with Senior Staff Attorney, Nonprofit Org. (Sept. 11, 2013)
(on file with author) (Some judges go ahead and advise everybody of their basic rights and tell them
theyre under oath all at once in a group; some of them do it individually.). As Robert Koulish
described in his pioneering study of asylum adjudication, [t]he mass calendar hearing operates in an
assembly line fashion. Robert E. Koulish, Systemic Deterrence Against Prospective Asylum Seekers: A
Study of the South Texas Immigration District, 19 N.Y.U. REV. L. & SOC. CHANGE 529, 553 (1992).
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inquiry into whether the respondents understand their rights.
88
Sometimes
respondents at the master calendar hearing will ask the judge for a
continuance in order to have more time to seek counsel, or to prepare an
application for relief.
89
Immigration cases that raise complex and contested issues of law or
fact will continue to trial, known in practice as an individual calendar
hearing.
90
Most frequently, these individual hearings are used when a
respondent files an application for relief to remain lawfully in the United
Statessuch as asylum,
91
adjustment of status,
92
or cancellation of
removal.
93
To qualify for relief, a respondent must satisfy the applicable
statutory eligibility requirements and convince the judge that the case
merits the exercise of favorable discretion.
94
Alternatively (or in addition), some respondents request that the judge
grant a discretionary benefit known as voluntary departure. Voluntary
departure requires the respondent to satisfy certain statutory eligibility
requirements and pay the cost of removal.
95
In exchange, the voluntary
departure recipient must leave the country, but will not be subject to certain
88
See generally United States v. Nicholas-Armenta, 763 F.2d 1089 (9th Cir. 1985) (expressing
disapproval of a mass immigration hearing in which thirty-three immigrants were deported, but refusing
to find a per se due process violation).
89
8 C.F.R. § 1003.29 (The Immigration Judge may grant a motion for continuance for good cause
shown.). See generally Eagly & Shafer, supra note 21, at 3336, 6163 (analyzing patterns in judicial
grants of continuances to find counsel in immigration removal cases).
90
COURT PRACTICE MANUAL, supra note 84, § 4.16(a), at 79 (Evidentiary hearings on contested
matters are referred to as individual calendar hearings or merits hearings. Contested matters include
challenges to removability and applications for relief.). As research by Jennifer Koh has shown, at
times the threshold question of removability itself can be complex and require an individual calendar
hearing. Jennifer Lee Koh, Rethinking Removability, 65 FLA. L. REV. 1803, 180506, 182151 (2013).
91
Asylum is a form of discretionary relief available to individuals who qualify as refugees by
demonstrating past persecution or a well-founded fear of persecution based on the noncitizens race,
religion, nationality, political opinion, and/or membership in a particular social group. 8 U.S.C.
§ 1101(a)(42)(A) (2012). Applicants for asylum may also be considered for relief under withholding of
removal and the Convention Against Torture by satisfying a more stringent standard. See generally
THOMAS ALEXANDER ALEINIKOFF ET AL., IMMIGRATION AND CITIZENSHIP: PROCESS AND POLICY 903
08 (7th ed. 2012).
92
Adjustment of status is a form of relief from removal available to noncitizens eligible for lawful
permanent resident status based on a visa petition approved by the United States Citizenship and
Immigration Services. 8 U.S.C. § 1255(a).
93
Cancellation of removal is a form of relief available to both lawful permanent residents and
undocumented individuals who have lived for a minimum number of years in the United States and who
satisfy certain requirements. Id. § 1229b. For a discussion of other common types of relief from
removal, see EXEC. OFFICE FOR IMMIGRATION REVIEW, FORMS OF RELIEF FROM REMOVAL (2004),
available at http://www.justice.gov/eoir/press/04/ReliefFromRemoval.htm [http://perma.cc/TG2M-
PZ7V].
94
8 U.S.C. § 1229a(c)(4). In exercising discretion, immigration judges must weigh the credible
testimony along with other evidence of record. Id. § 1229a(c)(4)(B).
95
8 C.F.R. § 1240.26(b)(c) (2015) (setting forth the standards that govern discretionary grants of
voluntary departure during or at the end of removal proceedings).
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statutory bars against reentry to the United States that normally attach to
removal orders.
96
Finally, at any point in the proceeding, eligible detainees may request
a separate custody hearing to determine eligibility and terms for release on
bond.
97
If release is granted and the immigrant is able to afford the required
bond amount,
98
the case will no longer be part of the immigration court’s
detained docket. Instead, the respondent will be ordered to appear in person
before a judge assigned to that jurisdiction’s nondetained court.
99
In keeping with the dominant trial-focused critique of televideo,
immigration court officials initially maintained that televideo should be
limited to the reading of charges and other pretrial procedural hearings, but
not relied on for individual hearings where judges decide the merits of
cases.
100
Over time, however, officials retreated from this position,
eventually allowing televideo’s use in all hearings, including individual
hearings.
101
As explained by one immigration prosecutor during my site
visit, judges used to allow respondents appearing by televideo to at least
attend their merits hearing in person, but “now video is the default” for all
hearings. A seasoned practitioner similarly lamented that initially officials
would “bring the client to the immigration court” for trial.
102
But, later, as
96
8 U.S.C. § 1182(a)(9)(A).
97
8 C.F.R. § 1003.19(a), (d). Certain categories of immigrants are not eligible for release on bond.
Id. § 1236.1(c). For example, noncitizens convicted of certain types of crimes may be mandatorily
detained during the removal period. 8 U.S.C. § 1226(c)(1). For a convincing argument that counsel
should be appointed to determine whether detainees may be mandatorily detained, see Mark Noferi,
Cascading Constitutional Deprivation: The Right to Appointed Counsel for Mandatorily Detained
Immigrants Pending Removal Proceedings, 18 MICH. J. RACE & L. 63 (2012).
98
Although many detainees are ineligible for release, others remain detained despite a release order
because they cannot afford the bond amount set by the court. The statutory minimum bond amount is
$1500, 8 U.S.C. § 1226(a)(2)(A), although judges may also release respondents on their own
recognizance, id. § 1226(a)(2)(B). In the custody hearings that I observed around the country, bond
amounts set by judges ranged from a low of $1500 to a high of $50,000. I routinely observed judges
ordering release with a bond amount that the immigrant stated at the hearing he or she would be unable
to afford.
99
During my site visits, I observed respondents released from custody by the judge and ordered to
report to their next court hearing in person at a nondetained court location. Several interviewees also
confirmed this practice. See, e.g., Telephone Interview #23 with Supervising Detention Attorney,
Nonprofit Org. (Sept. 5, 2013) (on file with author) (noting that respondents released from custody
would be moved to the docket of one of the nondetained judges).
100
See IHP Hearings, supra note 59, at 41 (prepared statement of Michael J. Creppy, Chief
Immigration Judge, explaining that televideo was initially reserved for master calendar hearings).
101
EOIR VIDEO HEARINGS, supra note 14, at 3 (All types of proceedings may be heard by
[televideo]. EOIR conducts removal proceedings including master calendar (pleadings, issue
identification and scheduling), and individual hearing through VTC.).
102
Telephone Interview #20 with Partner, Small-Size Law Firm (Aug. 21, 2013) (on file with
author).
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televideo was more fully implemented, “they stopped bringing the
client.”
103
FIGURE 3: TELEVIDEO HEARINGS IN DETAINED REMOVAL PROCEEDINGS,
BY HEARING TYPE, FISCAL YEARS 20072012
104
Figure 3 traces this rise in televideo’s use across all types of detained
removal hearings.
105
The televideo tool is now relied on for master calendar
hearings, custody hearings, and individual hearings. Although individual
hearings remained the least common type of televideo hearing, this finding
simply reflects the infrequency of trials in detained removal cases. During
the six-year period from 2007 to 2012, only 7% of detained removal cases
103
Id. Other attorneys made similar comments. See, e.g., Telephone Interview #23, supra note 99
(explaining that initially only master calendar hearings were by video, but when they got the
technology to have two courtrooms equipped with the video equipment then everyone started, for both
masters and merits, appearing by video).
104
Figure 3 contains all adjourned hearings in detained removal proceedings. Master includes
hearings coded as Detained Master, Master Asylum, and Initial Master. Individual includes
Individual, Individual Detained, and Individual Asylum. Other includes less common hearing types,
such as attorney discipline hearings.
105
Although removal is by far the most common type of immigration proceeding, other proceeding
types include credible fear, reasonable fear, claimed status, asylum only, rescission, continued detention
review, Nicaraguan Adjustment and Central American Relief Act (NACARA), and withholding only.
2012 YEARBOOK, supra note 23, at C1C3 & C3 tbl.3 (classifying 310,455 out of the 317,930
proceedings received by the immigration courts in 2012 as removals).
Master Reset
Master
Individual
Custody
Other
0
5
10
15
20
25
30
Televideo Hearings (Thousands)
2007 2008 2009 2010 20112012
Fiscal Year
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contained one or more individual hearings, compared to 42% of removal
cases for respondents who were never detained.
106
Another important pattern that emerges from the data is that for most
removal proceedings the same adjudicative medium (televideo or in
person) was used for all hearings. In other words, once an individual
immigrant’s removal process began in one mode, all subsequent hearings
followed in the same mode.
Figure 4 depicts the different approaches to adjudicative medium
using the detained removal proceeding as the unit of analysis.
107
In the most
common adjudicative model, which I call pure in-person adjudication, all
hearings within a proceeding are held in person. In the second most
common adjudicative model, which I call pure televideo adjudication, all
hearings within a proceeding are held by televideo. In the third adjudicative
model, which I call hybrid adjudication, in-person and video hearings are
both used within a single proceeding.
As Figure 4 reveals in more detail, reliance on pure in-person
adjudication in detained removal merits proceedings declined sharply
during the six-year period from 2007 to 2012. In its place, pure televideo
adjudication increased.
108
By 2012, almost one-third of detained
proceedings were conducted using pure televideo adjudication: 25,955
detained proceedings used pure televideo adjudication, compared to 63,877
that used pure in-person adjudication. In contrast, for individuals never
subject to detention, 97.7% of removal proceedings in 2012 received pure
in-person adjudication.
109
That is, individuals not subject to detention
almost always proceeded in person with the judge.
106
These differences were statistically significant (p < 0.001, equality of proportions test). The
smaller number of trials in detained cases corresponds with the fact that detained cases also included
fewer claims for relief. Nationally, only 7% of detained removal cases included at least one affirmative
claim for relief (other than voluntary departure), compared to 49% of never-detained removal cases (p <
0.001, equality of proportions test).
107
To clarify, a proceeding often contains several different hearings. For example, a proceeding
could begin with a master calendar hearing, later include a custody hearing, and end with an individual
hearing.
108
Although the total number of detained removal proceedings increased during the decade from
2002 to 2012, see supra note 76 & Figure 4, infra, reflects that the total number of detained proceedings
declined somewhat during the 2007 to 2012 time period.
109
The remaining never-detained removal proceedings decided in 2012 were adjudicated in the
pure televideo mode (0.8%) and in the hybrid mode (1.5%).
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FIGURE 4: DETAINED REMOVAL PROCEEDINGS, BY ADJUDICATIVE MODE,
FISCAL YEARS 20072012
110
Figure 4 also demonstrates that hybrid proceedingswhich included
at least one televideo and one in-person hearingwere relatively
infrequent among detained cases. When detained hybrid proceedings did
occur, they fell into one of several different scenarios. One scenario
occurred when televideo equipment was not available, either due to
equipment failure or insufficient availability of televideo courtrooms.
111
Another scenario occurred as courts transitioned their dockets from in-
person adjudication to televideo,
112
naturally resulting in hybrid
110
Figure 4 charts the adjudicative mode for all proceedings in all detained removal cases where
hearing-level data were available (92.3% of proceedings during 2007 to 2012). For purposes of
categorizing the adjudicative mode of hearings within a single proceeding, telephone hearings (which
were only 1% of all hearings) were not counted. Nor were certain hearings where EOIRs adjournment
coding clearly indicated that the hearing was not held (i.e., unplanned immigration judge leave or detail
assignment, resetting of the hearing, and data entry errors) or where medium data were missing. See
Memorandum from Michael J. Creppy, Chief Immigration Judge, Exec. Office for Immigration
Review, U.S. Dept of Justice 28 (June 16, 2005) [hereinafter Adjournment Code Memo] (obtained by
author with FOIA request #2014-7182) (on file with author) (defining the adjournment codes for
hearings used in the courts record keeping system).
111
As the Court Administrator in San Antonio explained, although there are four VTC courtrooms
at Pearsall [detention facility], there are instances where six judges are waiting to hear cases at Pearsall
which are set at the same time. Therefore, in an attempt to complete the hearing, the respondent may be
brought to the San Antonio Immigration Court for an in-person hearing. VTC REVIEW, supra note 6, at
7.
112
As Figures 1, 2, and 3 demonstrate, televideo gradually consumed a greater proportion of the
immigration courts docket of detained removal cases.
Pure Televideo
Pure In-Person
Hybrid
0
20
40
60
80
100
Proceedings (Thousands)
2007 2008 2009 2010 20112012
Fiscal Year
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adjudication of those cases pending during the transition period. Third,
hybrid adjudication occurred when detainees were transferred to different
detention centers based on available bed space,
113
and the transfer triggered
a change of venue from a televideo court in one jurisdiction to an in-person
court in the other jurisdiction. Finally, hybrid adjudication occurred when a
nondetained immigrant appeared in person at an initial master calendar
hearing but was later ordered detained and assigned to a televideo court.
Only rarely did hybrid proceedings result from judicial grant of an in-
person hearing to a litigant otherwise assigned to a televideo court. The six
years of data analyzed show that judges ordered an average of only 102 in-
person hearings per year in detained removal cases that would have
otherwise proceeded by televideo.
114
As one immigration judge confirmed,
televideo cases generally proceed entirely in televideo unless, for example,
there is a “speech impediment or they speak Quechua, something like
that.”
115
Narrow judicial allowance of in-person hearings in televideo courts
is also consistent with appellate court rulings that have upheld televideo
procedures against due process challenges absent a specific showing of
prejudice.
116
Moreover, the number of requests for in-person hearings declined
sharply since 2010. Nationally, respondent requests for in-person hearings
in detained televideo cases reached a high of 1227 in 2010, and dipped to a
mere 289 by 2012. Most practitioners whom I interviewed indicated that
they had either never filed such a request, or that they ceased the practice
113
In some cases, the limited availability of bed space results in detainees being transported to
locations other than where they were arrested to adjudicate their court case. 2012 YEARBOOK, supra
note 23, app. A at 19 (The Department of Homeland Security (DHS) sometimes moves detained aliens
between detention facilities.). See generally César Cuauhtémoc García Hernández, Due Process and
Immigrant Detainee Prison Transfers: Moving LPRs to Isolated Prisons Violates Their Right to
Counsel, 21 BERKELEY LA RAZA L.J. 17, 60 (2011) (arguing that the nationwide game of immigration
prison hopscotch violates the right to counsel).
114
This average of 102 hearings a year represents less than 0.05% of detained hearings adjourned
between 2007 and 2012. See generally Adjournment Code Memo, supra note 110 (defining
adjournment coding that applies to grants of in-person hearings in lieu of televideo hearings). This
finding is also consistent with EOIRs own monitoring of televideo usage in San Antonio. Of the 842
televideo hearings included in EOIRs San Antonio study, only four were converted to in-person
hearings. VTC REVIEW, supra note 6, at 7.
115
Telephone Interview #48, supra note 1. EOIRs own study of televideo usage in San Antonio
also cites rare examples of deviation from the televideo mode, such as when necessary to personally
observe the respondent before making a referral to another agency for further observation/diagnosis or
looking at marks on the respondents body before making a decision in the case. VTC REVIEW, supra
note 6, at 7.
116
See, e.g., Eke v. Mukasey, 512 F.3d 372, 383 (7th Cir. 2008) (finding that to succeed on a due
process challenge the immigrant must make a showing that televideo likely impacted the result of the
proceedings).
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after having such a motion denied.
117
One immigration judge clarified: “I
certainly think [attorneys] can request” in-person hearings, but “what types
of factors the judge would consider I don’t know because I haven’t ever
had anybody request it.”
118
A final important feature of the televideo landscape is its uneven
distribution across the United States. Although there are sixty different
immigration court jurisdictions, 84% of all televideo hearings for 2012
were held in only fifteen jurisdictions.
119
In practice, televideo’s
implementation was concentrated in those jurisdictions that handled large
numbers of detained cases. As a result, the major drivers of televideo’s
expansion were jurisdictions located near the border (such as San Antonio,
El Paso, and Los Angeles), as well as jurisdictions housing major detention
centers (such as Houston and Elizabeth).
In conclusion, the empirical evidence just presented demonstrates that
televideo technology is reserved for the court cases of detainees. As more
and more immigrants are held in detention centers while awaiting their
court dates, reliance on televideo has grown dramatically and is now used
for both pretrial hearings and trials. Rather than a neutral adjudicative tool,
televideo should be understood as an intentional design element of the
rapidly evolving detention-to-deportation pipeline.
117
See, e.g., Interview #8 with Clinical Professor, Immigration Clinic, ABA-approved Law Sch.
(Aug. 5, 2013) (on file with author) (explaining that because immigration judges have this pressure
where they have an entire VTC as a protocol, counsel must make an extraordinary showing of
prejudice that is so difficult to make that people just dont bother making it); Telephone Interview
#24 with Partner, Mid-Size Law Firm (Sept. 6, 2013) (on file with author) (Ive made the objection
before and it didnt go well for me.); Telephone Interview #21 with Detention Attorney, Nonprofit
Org. (Aug. 22, 2013) (on file with author) (I made a request at the individual hearings for them to be
brought in person, which was denied.); Telephone Interview #25 with Staff Attorney, Nonprofit Org.
(Sept. 6, 2013) (on file with author) (Its not going to happen and so you just have to accept that thats
how things are done right now, and so I havent heard of anybody objecting [to televideo].); Telephone
Interview #35 with Partner, Small-Size Law Firm (Oct. 9, 2013) (on file with author) (I filed a motion
once asking that my client be brought in and not on the video . . . it was denied by the judge on the
papers. I didnt try it again.).
118
Interview #29 with Representative, Natl Assn of Immigration Judges (Sept. 17, 2013) (on file
with author); see also Telephone Interview #34 with Clinical Professor, Immigration Clinic, ABA-
approved Law Sch. (Sept. 26, 2013) (on file with author) (explaining she has never filed a motion for an
in-person hearing and never seen it done in practice); Interview #44 with Partner, Small-Size Law Firm
(Nov. 20, 2013) (on file with author) (agreeing he personally has never asked for an in-person hearing
and has never heard of any attorney doing so); Telephone Interview #48, supra note 1 (noting that,
although elite law firms handling cases pro bono may request in-person hearings, general practitioners
rarely do so).
119
These jurisdictions, in order from most televideo hearings to least were: Houston, San Antonio,
Adelanto, Chicago, Newark, Oakdale, El Paso, Arlington, Detroit, Elizabeth, York, Dallas, Cleveland,
and Los Fresnos. The remaining 16% of 2012 televideo hearings were spread out among twenty-seven
other jurisdictions. Six of these jurisdictions had fewer than seven televideo hearings.
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II. COMPARING OUTCOMES IN TELEVIDEO AND IN-PERSON CASES
Part II turns to the question of televideo’s assumed functional
equivalence to in-person adjudication.
120
It does so by comparing outcomes
in televideo cases with similar cases that were adjudicated in person. In this
analysis, procedural outcomes are considered separately from trial
outcomes. The key procedural outcomes are (1) obtaining an attorney; (2)
applying for relief; and (3) applying for voluntary departure. The key trial
outcomes are (1) termination; (2) relief (if pursued); and (3) voluntary
departure (if pursued without relief).
Understanding these outcome comparisons requires an appreciation of
the two-stage mechanics of removal proceedings. In the first stage of
removal, as depicted in Figure 5, the judge rules whether to sustain the
charges contained in the government’s Notice to Appear.
121
The judge will
terminate the case if no proper ground for removal is contained in the
charging document.
122
In contrast, if the judge sustains the charges, the case
will result in removal at the end of stage one unless the respondent applies
for relief or the immigration benefit known as voluntary departure.
123
In the second stage of removal, as Figure 5 also highlights, the judge
adjudicates any application for relief or voluntary departure.
Approximately one-third of detained removal cases present at least one
such application and thus proceed to the second stage.
124
After considering
a respondent’s stage two application(s) for relief and/or voluntary
departure,
125
the immigration judge must reach one of three different
decisions: removal, voluntary departure, or relief.
126
120
See, e.g., supra note 14.
121
8 C.F.R. § 1240.10(c) (2015). For example, the judge will terminate the case if the respondent is
a United States citizen or a lawful permanent resident not subject to removal.
122
In some cases, termination may be requested by the prosecutor. See infra note 164. During the
six-year period from 2007 to 2012, only 2% of detained removal cases resulted in termination. In
contrast, for immigrants who were never subject to detention, 20% of removal cases ended in
termination during the same period.
123
See supra notes 23, 9193 (defining the terms relief and voluntary departure).
124
Specifically, in the National Sample of nonterminated cases (n = 151,025), 9.6% of respondents
applied for at least one form of affirmative relief, and an additional 24.7% applied for just voluntary
departure.
125
To clarify, a respondent may apply for more than one form of relief, such as asylum together
with cancellation of removal. In addition to seeking relief, a respondent may also seek voluntary
departure.
126
8 U.S.C. § 1229a(c)(1)(A) (2012) (At the conclusion of the proceeding the immigration judge
shall decide whether an alien is removable from the United States.). As Juliet Stumpf aptly points out,
outcomes available to immigration judges in deportation cases are extremely limited. Juliet Stumpf,
Fitting Punishment, 66 WASH. & LEE L. REV. 1683, 1689 (2009) (contrasting the system for punishment
in the immigration law to that of the criminal law, which allows for greater proportionality).
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FIGURE 5: TWO STAGES OF IMMIGRATION REMOVAL
Before proceeding further, it is important to consider potential bias in
the comparisons of televideo and in-person case outcomes. One aspect of
immigration adjudication that reduces bias in measuring the effect of the
televideo treatment is that cases are assigned randomly to judges by the
court, without prior review of the charges, attorney representation, claims,
or available defenses.
127
Official docketing policies call for random
rotational assignment of cases to immigration judges.
128
This random
assignment of cases to judges without evaluation of the merits of the case is
consistent with my observations in site visits and findings gathered from
interviews.
129
127
Random assignment with respect to the merits of a case is to be distinguished from naturally
occurring variations in court or judge caseloads that occur as a result of exogenous factors such as
regional and temporal variations in immigration flows and prosecutorial charging priorities.
128
See EXEC. OFFICE FOR IMMIGRATION REVIEW, UNIFORM DOCKETING SYSTEM MANUAL, at III-1
(2013) [hereinafter UNIFORM DOCKETING MANUAL], available at http://www.justice.gov/eoir/efoia/
newudms/DocketManual_12_2013.pdf [http:// perma.cc/2HGM-JBER] (In multiple Immigration
Judge courts, cases are assigned to each Immigration Judges Master Calendar on a random rotational
basis . . . .”); U.S. GOVT ACCOUNTABILITY OFFICE, GAO-08-940, U.S. ASYLUM SYSTEM: SIGNIFICANT
VARIATION EXISTED IN ASYLUM OUTCOMES ACROSS IMMIGRATION COURTS AND JUDGES 104 (2008)
[hereinafter GAO REPORT], available at http://www.gao.gov/assets/290/281794.pdf [http://perma.cc/
37HM-3FRY] ([I]mmigration judges are reportedly assigned cases randomly within immigration
courts . . . .”).
129
Both attorneys and judges explained that case assignment did not take into account the merits of
the underlying case, but rather was done randomly. See, e.g., Telephone Interview #48, supra note 1
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Another critical point that reduces potential bias is that the use of
televideo does not depend on a later review of the merits of the case. As
established in Part I, once a case begins in one adjudicative mode, it almost
always continues in that same mode until the case is completed.
130
In other
words, immigration judges do not first hear what a case is about and then
relegate weaker cases to televideo. Instead, assignment to pure televideo
versus pure in-person adjudication typically depends on the geographic
location of the detention center in relation to the judge’s assigned court and
the technological capacity of the judge’s assigned courtroom. For example,
not all courtrooms have televideo capacity, thereby requiring in-person
adjudication. Other courtrooms are located inside or close to detention
facilities, thereby eliminating the need for videoconferencing.
These court practices allow for comparisons of case outcomes across a
sizable dataset containing tens of thousands of observations of televideo
and in-person adjudication. Nonetheless, this research is an observational
study, not an experiment. Natural flows in immigration patterns and
enforcement priorities may insert unintended bias into the analysis.
131
The
unevenness of televideo implementation across the country is another
potential source of bias.
132
The fact that some immigrants are released from
custody and therefore no longer part of the detained caseload also creates
some uncertainty in any study of detained immigration cases.
133
Finally,
like in all research based on a review of court data, analysis was limited to
those variables captured in the court’s files.
(agreeing that detained cases are distributed randomly among immigration judges without regard to
their substance or merit).
130
See supra Figure 4 and accompanying text.
131
By incorporating a regression analysis in my analysis, I controlled for factors such as
respondent nationality and prosecutorial charge type that could affect case outcomes. See infra notes
36271 and accompanying text.
132
See infra Figure 8 and accompanying discussion. I address this issue with a separate analytical
approach that looks at just those high-volume jurisdictions that relied most heavily on both televideo
and in-person adjudication for detained cases. See infra Part II.B.
133
This concern is mitigated by a number of factors. Many immigrants in detention centers are held
mandatorily without a statutory right to release. 8 U.S.C. § 1226(c)(1) (2012), or without a right to a
custody redetermination before a judge, 8 C.F.R. § 1003.19(h)(2)(i)(B). Immigration courts have no
authority to determine custody status on their own motion, P-C-M-, 20 I. & N. Dec. 432 (B.I.A. 1991),
and the majority of release decisions are made by detention officers, rather than courts, 8 U.S.C.
§ 1226(a)(2); Eagly & Shafer, supra note 21, at 73 (finding that among those respondents released from
detention, 63% never had a custody hearing before an immigration judge). When judges do rule on
bond conditions, they are instructed to weigh numerous factors related to risk of flight and public safety
that do not necessarily correlate with case quality. IMMIGRATION BENCHBOOK, supra note 10, available
at http://www.justice.gov/sites/default/files/eoir/legacy/2014/08/15/Bond_Guide.pdf [http://perma.cc/
3JXA-PBHQ]. Finally, immigrants unable to afford the required bond amount remain detained. See
supra note 98.
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To guard against these possible sources of bias, a number of additional
steps enhance the validity of the comparisons presented in this Part. First,
only similar types of court cases (e.g., only detained adult removal cases)
from the two years of most active televideo usage were included in the
comparisons. Second, the analysis replicated the two-stage decisional
process of immigration removal proceedings so that outcomes were
compared only at the same stage.
134
Third, four different models for
statistical analysis were pursued, all of which reached similar conclusions
regarding televideo’s association with inferior participation levels by
respondents. These models relied on both a sample of cases from courts all
across the country, as well as a sample from only those jurisdictions with
the most active usage of both televideo and in-person adjudication. In
addition, these analyses included a regression that statistically controlled
for additional factors that could have potentially affected case outcomes,
such as representation by counsel, assignment to a particular judge, fiscal
year of decision, nationality of respondent, and prosecutorial charge type.
135
A. Outcomes in the National and Active Base City Samples
This Section first compares televideo and in-person case outcomes
across a National Sample of 153,835 immigration cases. For purposes of
conducting this comparison, this set of cases was tailored to include only
adult detained removal cases in which immigration judges reached a
decision on the merits during fiscal years 2011 and 2012.
136
In addition,
cases involving atypical forms of adjudication were removed, including
cases involving prisoners whose cases are adjudicated as part of the
Institutional Hearing Program (IHP),
137
and cases decided without a hearing
pursuant to a stipulation between the parties.
138
The resulting National
134
The bifurcation of immigration proceedings into deportability and relief is firmly grounded in
the immigration law. See, e.g., Bulos, 15 I. & N. Dec. 645, 64849 (B.I.A. 1976); 8 C.F.R.
§ 1240.11(d)(e) (2015). For a graphic depiction of this two-stage process, see supra Figure 5.
135
The coding methodology used for each of these factors is detailed in Part C of the Appendix.
136
A more detailed description of the steps taken to compile the National Sample is contained in
Part A of the Appendix.
137
The Institutional Hearing Program (IHP) implements a 1986 congressional mandate that the
Attorney General shall begin any deportation proceeding as expeditiously as possible for noncitizens
convicted of deportable offenses. Immigration Reform and Control Act of 1986, Pub. L. No. 99-603,
§ 701, 100 Stat. 3359, 3445. The IHP program was officially created in 1988 as part of the Anti-Drug
Abuse Act of 1988, Pub. L. No. 100-690, § 7347(a), 102 Stat. 4181, 4471 (1988) (codified as amended
at 8 U.S.C. § 1228 (Supp. II 1996)) (The Attorney General shall provide for the availability of special
deportation proceedings at certain Federal, State, and local correctional facilities for aliens convicted of
aggravated felonies (as defined in [certain sections of the INA]).).
138
See 8 U.S.C. § 1229a(d) (2012). See generally Jennifer Lee Koh, Waiving Due Process
(Goodbye): Stipulated Orders of Removal and the Crisis in Immigration Adjudication, 91 N.C. L. REV.
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Sample included 153,835 decisions from fifty-two different court
jurisdictions and 266 different immigration judges. Approximately one-
fourth of these cases were adjudicated by televideo, and the rest were
adjudicated in person.
Across this large National Sample of detained removal cases,
televideo cases exhibited less engagement in the adversarial process. When
compared to detained in-person removal cases, detained televideo removal
cases were less likely to involve counsel (18% in person, versus 15%
televideo), include an affirmative claim for relief (10% in person, versus
7% televideo), or contain a request for voluntary departure (25% in person,
versus 24% televideo). These statistically significant differences in
procedural outcomes (p < 0.001) are displayed graphically in Figure 6.
FIGURE 6: NATIONAL SAMPLE PROCEDURAL OUTCOMES, BY ADJUDICATIVE MEDIUM
139
Not only did televideo cases in the National Sample include fewer
attorneys, relief applications, and requests for voluntary departure, but they
475, 509 (2013) (finding that in the mid-to-late 2000s, approximately one in ten removal orders were
stipulated orders, rather than a product of the adversarial court process).
139
National Sample n = 153,835 for representation; n = 151,021 for apply for relief and apply for
voluntary departure only (excluding individuals whose cases were terminated). Differences were
statistically significant by a two-tailed equality of proportions test: obtain representation, z = 15.3, p <
0.001; apply for relief, z = 19.7, p < 0.001; apply for voluntary departure only, z = 5.7, p < 0.001.
Apply for Voluntary
Departure Only
Apply for
Relief
Obtain
Representation
0 5 10 15 20 25
Percent
In Person
Televideo
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were also twelve days faster on average.
140
For those who did not apply for
relief, detained televideo proceedings were an average of three days shorter
than comparable in-person cases.
141
And, when an application for relief was
adjudicated (such as asylum or cancellation of removal), on average
immigration judges reached a final decision a full thirty-eight days faster in
televideo courtrooms.
142
These differences in adjudicative time of the merits
proceedings in televideo and in-person cases are displayed in Figure 7.
FIGURE 7: NATIONAL SAMPLE MERITS COMPLETION TIME, BY ADJUDICATIVE MEDIUM
140
Twenty-nine days on average for in person (SD = 90), versus seventeen days for televideo (SD
= 61) (p < 0.001, two-tailed difference of means t-test); median time to completion for both adjudicative
mediums was one day. For purposes of this Article, the length of court processing time is measured as
the time from the first hearing at the beginning of the relevant merits proceeding (generally the master
calendar hearing) to the date of the last hearing in the proceeding in which the judge issued the first
decision on the merits. A similar methodology for measuring court processing time was adopted to
study the Department of Justices Legal Orientation Program. NINA SIULC ET AL., VERA INST. OF
JUSTICE, LEGAL ORIENTATION PROGRAM: EVALUATION AND PERFORMANCE AND OUTCOME
MEASUREMENT REPORT, PHASE II, at 16 n.13, 48, 8182 (2008) [hereinafter VERA EVALUATION],
available at http://www.vera.org/sites/default/files/resources/downloads/LOP_evalution_updated_5-20-
08.pdf [http://perma.cc/7LFF-DJFX].
141
Eleven days on average for in person (SD = 58), versus eight for televideo (SD = 23) (p < 0.001,
two-tailed difference of means t-test); the median time to completion for both adjudicative mediums is
one day.
142
One hundred fifty days on average for in person (SD = 173), versus 112 for televideo (SD =
185) (p < 0.001, two-tailed difference of means t-test); the median time to completion for merits
proceedings with claims for relief was 112 days for in person, versus seventy-nine days for televideo.
Mean
Median
0
50
100
150
Total Merits Duration (Days)
Televideo In Person
Overall
Mean
Median
0
50
100
150
Televideo In Person
No Relief Application
Mean
Median
0
50
100
150
Televideo In Person
Relief Application
Note
: Total Merits Duration includes median (hollow symbol), average (s olid symbol), and 95% confidence intervals for time
from first hearing until last hearing.
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Why were televideo cases faster? One clue from the data is that
televideo cases were less likely to include continuances for additional time
for the respondent to seek counsel
143
or for the respondent to prepare for
trial.
144
Televideo cases were also less likely to include a trial: 14% of in-
person removal cases in the National Sample had an individual hearing
during the merits proceeding, compared to only 8% of televideo removal
cases.
145
Given that removal cases with attorneys are more likely to include
claims for relief and therefore trials,
146
this finding is also consistent with
the lower level of attorney representation in televideo cases.
147
Multiple
aspects of the data thus reflect less vigorous litigant involvement in
televideo cases.
One possible critique of these results is that comparisons in the
National Sample were skewed because jurisdictions that actively used both
adjudicative techniques were effectively being pooled with jurisdictions
that did not. As would be expected with observational court data,
jurisdictions have incorporated televideo technology in different ways.
During the study period, some jurisdictions (such as Newark and Detroit)
relied almost exclusively on televideo adjudication for detained cases.
148
Other jurisdictions (such as San Francisco and Tucson) had not yet
integrated televideo technology and continued to use in-person adjudication
for almost all of their detained cases. In contrast, several major court
jurisdictions with large numbers of detained cases (such as Houston and
Los Angeles) were early to adopt televideo adjudication and during the
143
In the National Sample, 13% of televideo cases had at least one hearing adjourned to seek
counsel, versus 15% for in-person cases (p < 0.001, equality of proportions test). In addition, among
those respondents who were given at least one continuance to find counsel, televideo respondents were
less likely to be successful: 36% of in-person respondents with at least one continuance to find counsel
obtained an attorney, compared to only 29% of televideo respondents (p < 0.001, equality of
proportions test).
144
In the National Sample, 10.6% of televideo cases had at least one hearing adjourned for
respondent or respondents attorney preparation time, versus 12.5% for in-person cases (p < 0.001,
equality of proportions test).
145
Statistically significant differences in trial rates were even observed among those cases with
relief applications. In the National Sample, 95% of in-person relief cases included an individual
hearing, versus 94% of televideo relief cases (p < 0.001, two-tailed difference of proportions test).
146
In a separate article, Steven Shafer and I find that 86% of respondents who seek relief from
removal are represented by counsel. Eagly & Shafer, supra note 21, at 22 fig.4.
147
See supra Figure 6; infra Figure 9.
148
See infra Figure 8. The number of televideo units varied from base city to base city, as did the
number of minutes the equipment was used. See Letter from Crystal Souza, Exec. Office for
Immigration Review, U.S. Dept of Justice, to author (Dec. 16, 2013) (obtained by author with FOIA
request #2014-2220) (on file with author). For example, records I obtained with a Freedom of
Information Act request revealed that Memphis had only two pieces of video conferencing equipment
and only seventy-two minutes of usage in the nine-month period for which data were provided. In
contrast, during the same time period Los Angeles had over ten pieces of equipment and close to
200,000 minutes of usage logged. Id.
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study time period actively used both televideo and in-person methods to
handle their detained caseloads. These jurisdictions that used both
adjudicative forms in large numbers of detained hearings may provide the
best sample for observing adjudication outcomes across televideo and in-
person cases.
To test this possible interpretation of the results, my second analytic
approach focuses on a subset of cases selected from those court
jurisdictions that adjudicated at least 1000 televideo and 1000 in-person
detained removal cases in the two-year period of interest.
149
The eight
jurisdictions that satisfied these criteria included four Texas base cities
(Dallas, El Paso, Houston, and San Antonio), two California base cities
(Adelanto and Los Angeles), and one base city each from Louisiana and
Pennsylvania (Oakdale and York, respectively). I refer to these eight
jurisdictions collectively as “Active Base Cities.”
FIGURE 8: DETAINED REMOVAL CASES IN JURISDICTIONS WITH AT LEAST 1000 TELEVIDEO
REMOVAL CASES, BY ADJUDICATIVE MEDIUM, FISCAL YEARS 20112012
149
Creating minimum criteria for adjudicative volume of studied cases is a recognized method for
improving validity in comparing outcomes across groups of immigration cases. See, e.g., GAO REPORT,
supra note 128, at 37 n.35, 84 (We selected these country-immigration court combinations because
they had a sufficiently large number of immigration judges rendering a sufficiently large number of
decisions to produce reliable estimates . . . .”); Jaya Ramji-Nogales et al., Refugee Roulette: Disparities
in Asylum Adjudication, 60 STAN. L. REV. 295, 312, 332, 39596 (2007) (limiting analysis of
nondetained asylum decisions to only those courts that decided at least 1500 asylum cases during the
relevant time frame).
-----------------------------------------------------------------------------------
0246810 12 13
Detained Proceedings (Thousands)
Arlington, VA
Detroit, MI
Newark, NJ
Chicago, IL
Dallas, TX
Los Angeles, CA
York, PA
San Antonio, TX
Adelanto, CA
El Paso, TX
Oakdale, LA
Houston, TX Televideo
In Person
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The Active Base City Sample included a robust collection of 59,525
detained removal cases decided by sixty-six different immigration judges.
Among these detained cases, 42% were adjudicated by televideo, and 58%
in person. Figure 8 displays the relative breakdown between televideo and
in-person cases in the eight Active Base Cities. Below the dotted line are
base cities that also adjudicated at least 1000 televideo cases, but were not
defined as Active Base Cities because they heard almost all of their
detained cases by televideo, with few in-person detained cases remaining as
comparators.
Analysis of the Active Base City Sample revealed procedural patterns
similar to those in the National Sample, albeit with somewhat more intense
disadvantages for respondents in the televideo mode. When compared to
their in-person counterparts, detained televideo cases in the Active Base
Cities were significantly less likely to include representation by counsel
(16% in person, versus 11% televideo), applications for relief (8% in
person, versus 5% televideo), or requests for voluntary departure (25% in
person, versus 19% televideo). These statistically significant differences in
procedural outcomes are displayed in Figure 9.
FIGURE 9: ACTIVE BASE CITY SAMPLE PROCEDURAL OUTCOMES,
BY ADJUDICATIVE MEDIUM
150
150
Active Base City Sample n = 59,525 for representation; n = 58,589 for apply for relief and
apply for voluntary departure only (excluding individuals whose cases were terminated). Differences
were statistically significant by a two-tailed equality of proportions test: obtain representation, z = 17.8,
p < 0.001; apply for relief, z = 13.7, p < 0.001; apply for voluntary departure only, z = 17.0, p < 0.001.
Apply for Voluntary
Departure Only
Apply for
Relief
Obtain
Representation
0 5 10 15 20 26
Percent
In Person
Televideo
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In view of the marked procedural differences observed in both
samples, it makes sense that televideo cases also diverged from in-person
cases in their overall case outcome. As Figure 10 displays, televideo cases
in both samples were significantly more likely to end in removal.
151
In the
National Sample, 80% of in-person respondents were ordered removed,
compared to 83% of televideo respondents. In the Active Base City
Sample, 83% of in-person respondents were ordered removed, compared to
88% of televideo respondents. Similarly, as also depicted in Figure 10,
televideo cases in both samples were less likely than in-person cases to be
granted relief, allowed to voluntarily depart, or have their cases terminated.
FIGURE 10: NATIONAL SAMPLE AND ACTIVE BASE CITY SAMPLE OUTCOMES,
BY ADJUDICATIVE MEDIUM
152
This disadvantage in outcomes for televideo cases is reduced,
however, when cases that sought relief in stage two were analyzed
151
So as to maintain focus on the potential effect of the televideo treatment on trial-level outcomes,
this Article considers only the initial judicial outcome, rather than any outcome after appeal. Even so,
appeal is unusual in the context of detention: in the National Sample, only 4% of cases ending in
removal were appealed to the Board of Immigration Appeals. Moreover, detained cases ending in
removal were more likely to result in appeal if the case was heard in person (4.3% appealed) instead of
by televideo (3.3% appealed) (p < 0.001, two-tailed equality of proportions test).
152
National Sample n = 153,835. Differences were statistically significant by a two-tailed equality
of proportions test: termination, z = 2.2, p < 0.05; relief, z = 12.2, p < 0.001; removal, z = 16.4, p <
0.001; voluntary departure, z = 11.2, p < 0.001. Active Base City Sample n = 59,525. Differences were
statistically significant by a two-tailed equality of proportions test: termination, z = 3.3, p < 0.001;
relief, z = 10.9, p < 0.001; removal, z = 16.4, p < 0.001; voluntary departure, z = 11.8, p < 0.001.
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separately. Among National Sample respondents who sought relief,
televideo and in-person cases were both granted relief exactly 40% of the
time.
153
In the Active Base City Sample, a statistically significant difference
in the granting of relief applications appeared (39% for televideo, versus
44% for in person; p < 0.05).
154
However, as the next Section makes clear,
when additional factors (such as whether the respondent was represented
by counsel, assigned a particular judge, or charged with removal based on a
crime) were controlled for in a regression model, this observed difference
was no longer statistically significant.
The comparative analysis of case outcomes just presented offers
important information regarding how televideo adjudication operates on the
ground. Most strikingly, detained televideo cases exhibited depressed
engagement with the litigation process. As compared to similar in-person
adult detained removal cases, televideo cases were less likely to include
counsel or applications for relief and were adjudicated in less time with
fewer trials.
One might question whether these differences found in televideo cases
occurred because televideo respondents were detained. It is therefore
important to remind readers once again that all cases included in the
National and Active Base City Samples are of immigrants held in detention
during their entire case. In addition, care was taken in constructing both
data samples to ensure reliable comparisons, including by deleting those
cases that are not removal cases or where the parties stipulated to
removal.
155
However, it is true that the analysis just presented did not
statistically control for other case characteristics (such as which judge was
assigned) or respondent characteristics (such as whether the respondent was
represented by counsel) that might also be associated with these divergent
outcomes. The next Section turns to analysis of these additional variables.
B. Additional Factors that Could Affect Outcomes
To further assess the validity of this Article’s descriptive comparisons
between televideo and in-person adjudication, I utilized a sequential logit
regression model to control for additional factors that could possibly
153
National Sample of relief applicants n = 14,480. Relief not statistically significant, z = .21, p =
0.83, by a two-tailed equality of proportions test.
154
Active Base City Sample of relief applicants n = 3975. Relief statistically significant, z = 3.03, p
< 0.05, by a two-tailed equality of proportions test.
155
See infra Appendix, Section A.
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influence outcomes.
156
Specifically, this analysis controls for representation
status, geographic region of nationality, prosecutorial charge type, fiscal
year of decision, and judge assigned to the case.
157
In addition, to further
enhance reliability, the regression analysis models the two-stage structure
of removal proceedings introduced earlier. That is, it first considers the
stage one outcomes of termination versus removal. Second, it considers
stage two outcomes of relief versus removal or voluntary departure.
158
Applying this logit regression model to both the National and Active
Base City Samples leads to the same conclusions regarding televideo’s
effect on litigant participation as do the descriptive comparisons of
outcomes already introduced. That is, even after controlling for numerous
factors that could affect outcome, in-person respondents remained
significantly more likely to engage in the litigation process by retaining
counsel and seeking relief.
159
However, after controlling for those same
factors, these data failed to reject the null hypothesis regarding outcomes at
trial on applications for relief: there was no statistically significant
difference in relief rates across televideo and in-person adjudication.
160
156
For a similar example of a sequential logit regression model used to evaluate a two-stage court
adjudication process, see Kuo-Chang Huang et al., Does the Type of Criminal Defense Counsel Affect
Case Outcomes? A Natural Experiment in Taiwan, 30 INTL REV. L. & ECON. 113, 121, app. B (2010).
157
Additional details regarding the coding of each of these variables is provided in the Appendix.
The analysis discussed in this Section also incorporates a fixed effects regression at the individual-judge
level to account for unmeasured factors that might lead to lower or higher grant rates before certain
judges. See infra Appendix & tbls.1 & 2. For other examples of fixed effects modeling in the legal
scholarship, see Adam B. Cox & Thomas J. Miles, Policing Immigration, 80 U. CHI. L. REV. 87, 117
18 (2013) (utilizing fixed effects to control for state in analyzing the national rollout of a federal
immigration program known as Secure Communities); Kevin M. Scott, Understanding Judicial
Hierarchy: Reversals and the Behavior of Intermediate Appellate Judges, 40 LAW & SOCY REV. 163,
180 (2006) (applying fixed effects at the judge level to analyze judicial decisionmaking in the federal
circuit courts).
158
For those respondents who applied for relief in stage two (potentially with voluntary departure),
the judge may have ordered relief, removal, or voluntary departure. For those respondents who only
applied for voluntary departure in stage two, the judge may have ordered voluntary departure or
removal.
159
See infra Appendix tbl.1 (presenting logit regression results based on the Active Base City
Sample).
160
Id.
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FIGURE 11: PREDICTED PROBABILITIES FOR ACTIVE BASE CITY SAMPLE BASED ON A LOGISTIC
REGRESSION OF PROCEDURAL OUTCOMES, BY ADJUDICATIVE MEDIUM
161
Using the Active Base City Sample, Figure 11 provides a visual
representation of these differences by comparing the predicted outcomes
for each measure of litigant engagement. As Figure 11 displays, when
compared to similarly situated, detained televideo respondents, detained in-
person respondents were a remarkable 90% more likely to apply for relief,
35% more likely to obtain counsel, and 6% more likely to apply only for
voluntary departure.
162
161
Figure 11 displays predicted probabilities and 95% confidence intervals based on the regression
results displayed in the Counsel, Relief Application, and VD Only Application columns of Table
1 in the Appendix, which provide odds ratios comparing the impact of in-person adjudication to
televideo on selected outcomes. Predicted probabilities based on these estimated odds ratios may
provide a more intuitive look into the magnitude of the differences in these outcomes.
162
That is, after controlling for a variety of case- and respondent-specific factors, the relief
application rate is predicted to increase from 4.5% to 8.6%, the rate of obtaining representation is
predicted to increase from 11.2% to 15.0%, and the voluntary departure application rate is predicted to
increase from 23.5% to 24.8%.
Only Apply for
Voluntary Departure
Apply for
Relief
Obtain
Representation
0 5 10 15 20 25
Probability (Percent)
In Person
Televideo
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FIGURE 12: PREDICTED PROBABILITIES FOR ACTIVE BASE CITY SAMPLE BASED ON A LOGISTIC
REGRESSION OF JUDICIAL OUTCOMES, BY ADJUDICATIVE MEDIUM
163
In contrast to the predicted differences in procedural outcomes just
discussed, the predicted differences for relief and voluntary departure in the
Active Base City Sample were not significant. As shown in Figure 12, after
controlling for the same set of variables, there was no statistically
significant finding that judges assigned disadvantage to televideo cases in
ruling on relief and voluntary departure applications. Although judges were
somewhat less likely to terminate televideo cases (1.4% for televideo,
versus 1.7% for in person; p < 0.01), technical aspects of termination
practice in immigration court make it difficult to draw meaningful
conclusions from this data point.
164
Applying the same logit regression model to the National Sample
yielded consistent results to those found in the Active Base City Sample.
165
163
Figure 12 displays average predicted probabilities and 95% confidence intervals based on the
regression results displayed in the Termination, Grant Relief Application, and Grant VD Only
Application columns of Table 1 in the Appendix.
164
For example, some of these terminations could reflect a prosecutors request for termination in
exchange for the respondents agreement to a prehearing order of voluntary departure. 8 C.F.R.
§ 240.25(d)(1) (2015). Available court data do not allow for measurement of this practice.
Alternatively, in some cases prosecutors may file a new removal charge in a subsequent proceeding.
See, e.g., Interview #29, supra note 118 (agreeing that many times the government moves to terminate
for various reasons like the NTA wasnt proper and then refiles the case). Of the small number of
detained cases in the National Sample that resulted in termination, about 4% included a second Notice
to Appear.
165
Regression results from the National Sample are contained in Table 2 of the Appendix.
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There were no statistically significant differences in judicial decisions of
termination and grants of relief or voluntary departure. In addition,
statistically significant differences in litigant engagement remained, as
measured by retention of counsel and applications for relief.
166
This null result for judicial decisionmaking at trial means that the logit
regression model, as applied to both samples, could not detect statistically
significant differences in relief and voluntary departure grant rates for
televideo compared with in-person cases. This finding does not, however,
eliminate the possibility that undetected discrimination against televideo
cases might occur at the individual case level. For example, the fact that
fewer televideo respondents brought claims in the first place could mean
that the televideo claims were stronger on average, and therefore perhaps
merited grants at a higher rate. In addition, it is possible that individual
judges reacted differently to the televideo treatment.
167
The regression
model addresses these possibilities by controlling for judge, case, and
respondent characteristics that are associated with each case. Nonetheless,
such models cannot eliminate the possibility of omitted variable bias.
The analysis presented in this Section complements the descriptive
comparisons presented earlier with a regression model that controls for
numerous factors that could influence case outcomes. These factors include
respondent-specific factors of representation status, geographic region of
nationality, and prosecutorial charge type, as well as case-specific factors
of fiscal year of decision and judge assigned to the case. The resulting
quantitative analysis yields an asymmetrical result: televideo was
associated with fewer assertions of rights by litigants, but not more judicial
denials of relief from removal. To further probe televideo adjudication, Part
III supplements these findings with interviews and observations from the
field.
III. ON THE INSIDE OF TELEVIDEO COURTROOMS
I now turn to my qualitative research to interpret the adjudicative
patterns described in Part II.
168
Relying on the accounts of the people most
166
However, in the National Sample there is no statistically significant difference in the rate of
applying for voluntary departure. See infra Appendix tbl.2.
167
Recent research on Social Security hearings has found that while some administrative law
judges showed lower allowance rates in video hearings, others showed higher allowance rates. HAROLD
J. KRENT & SCOTT MORRIS, STATISTICAL APPENDIX TO REPORT ON ACHIEVING GREATER
CONSISTENCY IN SOCIAL SECURITY DISABILITY ADJUDICATION: AN EMPIRICAL STUDY AND
SUGGESTED REFORMS 40 (2013), available at http://www.acus.gov/sites/default/files/documents/
Statistical_Appendix_Final_4-3-2013.pdf [https://perma.cc/93FT-SU4A].
168
For a description of this qualitative research, see supra notes 3142 and accompanying text.
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familiar with immigration adjudication,
169
as well as my own observations
from the pews of immigration courtrooms and the halls of detention
centers, I identify the complex ways in which video adjudication interacts
with the deportation process. Judicial decisionmaking at trial is discussed
first, followed by litigant engagement in the adversarial process.
A. Judicial Decisionmaking
I can’t honestly say to you that I think the outcome [in my televideo cases]
would have been different in person. That’s including cases I’ve won and
cases I’ve lost.
170
Attorneys I interviewed cited many frustrations with video
appearances. Primary among these concerns were interference with
lawyers’ ability to guide their clients and technical interruptions in the
video feed.
171
These criticisms of televideo were often expressed in strong
terms: some attorneys said they “hated” televideo; others stressed that it
“dehumanized” their clients.
172
Curiously, however, when pressed to explain whether video actually
interfered with their ability to win a specific claim on behalf of a client,
most responded consistently with the results of the quantitative data. That
is, attorneys confessed that they could not identify a case in which
televideo adversely affected the outcome of their clients’ claims for relief.
As one attorney succinctly explained, “I can’t think of any case that I’ve
handled where I could say that [televideo] might have made a
difference.”
173
Another commented: “[I]f you have a decent case [for
relief], you will still probably win it. I don’t think just because you’re doing
it over video, that’s going to determine whether or not you win the case.”
174
169
As sociologists who study legal consciousness have found, often it is the accounts of
participants in the system that best capture the actual practice and use of law. PATRICIA EWICK &
SUSAN S. SILBEY, THE COMMON PLACE OF LAW: STORIES FROM EVERYDAY LIFE (1998).
170
Interview #44, supra note 118.
171
See, e.g., infra notes 239, 264, 274.
172
See, e.g., infra notes 200, 211, 263.
173
Telephone Interview #18 with Partner, Small-Size Law Firm (Aug. 21, 2013) (on file with
author).
174
Telephone Interview #43 with Partner, Small-Size Law Firm (Oct. 30, 2013) (on file with
author). Many other practicing attorneys made similar statements. See, e.g., Interview #40 with
Attorney, Mid-Size Law Firm (Oct. 22, 2013) (on file with author) (I cant honestly say that I felt
somehow unfairly treated because of that [video] arrangement.); Interview #16 with Supervisory
Attorney, Nonprofit Org. (Aug. 9, 2013) (on file with author) (I would offer that a good attorney or a
good judge is probably going to be as good on VTC as they are in person.); Telephone Interview #22
with Partner, Small-Size Law Firm (Sept. 3, 2013) (on file with author) (I dont feel like my
presentation really suffered [over video].); Interview #8, supra note 117 (Most of the cases that we
end up getting, they win. So they win despite VTC, right, which is great.); Interview #30 with Assoc.,
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This Article’s failure to reject the null hypothesis that decisionmaking at
trial is unrelated to adjudicative mode thus suggests that the intuitions of
these attorneys in the televideo trenches may be correct.
What accounts for this lack of an observed difference in outcomes
across televideo and in-person trials? Despite the sharp criticism that
routinely accompanies discussion of immigration judges,
175
there are a
number of explanations for why their trial decisions may turn on factors
other than what is gleaned over a video screen. As I observed in my site
visits, immigration judges often rested their decisions on purely legal
determinations rather than individualized fact-finding that relied on
interaction over the television screen.
176
Moreover, as social science
research has underscored, preexisting policy preferences of immigration
judges can profoundly influence their resolution of cases, especially given
the “institutional constraints under which judges operate, including the
vagueness of the law, the lack of concrete evidence, and the difficulty of
assessing credibility.”
177
Even when fact-finding is determinative, immigration judges may
privilege those cases with nontestimonial “corroborative printed proof,”
rather than those that rely solely on the first-hand testimony of the
applicant.
178
The immigration bench’s capacity to weigh testimony without
regard to presentational medium has also been guided by a series of
reforms designed to increase consistency in case outcomes. In 2006, the
Justice Department began to standardize procedures in the immigration
Small-Size Law Firm (Sept. 17, 2013) (on file with author) (I think that if you are doing everything
you are supposed to and you are well prepared, any inconvenience of the televideo is minimal.).
175
See, e.g., Benslimane v. Gonzales, 430 F.3d 828, 830 (7th Cir. 2005) ([T]he adjudication of
[immigration] cases at the administrative level has fallen below the minimum standards of legal
justice.).
176
A number of scholars have identified the importance of legal determinations, in addition to
factual determinations, in immigration courts. See, e.g., Joshua B. Fischman, Measuring Inconsistency,
Indeterminacy, and Error in Adjudication, 16 AM. L. & ECON. REV. 40, 73 (2014) (clarifying that
decisionmaking in immigration cases involve[s] fact-finding as well as legal interpretation); Steven
H. Legomsky, Learning to Live with Unequal Justice: Asylum and the Limits to Consistency, 60 STAN.
L. REV. 413, 424 (2007) (noting that a judges decision might be one of pure law . . . [o]r it might be
an assessment of the asylum seekers credibility, including whether the person is truthful, reliable, and
perceptive); Audrey Macklin, Truth and Consequences: Credibility Determination in the Refugee
Context, INTL ASSN REFUGEE L. JUDGES at 134, 134 (1988) (explaining that credibility determinations
in asylum cases are often so hard that decisions instead rely on legal determinations).
177
Linda Camp Keith et al., Explaining the Divergence in Asylum Grant Rates Among Immigration
Judges: An Attitudinal and Cognitive Approach, 35 LAW & POLY 261, 264, 283 (2013).
178
Deborah E. Anker, Determining Asylum Claims in the United States: A Case Study on the
Implementation of Legal Norms in an Unstructured Adjudicatory Environment, 19 N.Y.U. REV. L. &
SOC. CHANGE 433, 47479 (1992) (finding in an observational study of asylum adjudication that
immigration judges often privileged printed corroborative proof, which they considered to be
objective evidence, over testimonial evidence).
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courts,
179
including by creating an immigration court practice manual
180
and
publishing an enhanced immigration judge benchbook.
181
The immigration
courts also developed programs to more closely supervise judges with
unusually high or low grants of relief.
182
Training for new immigration
judges now emphasizes aspects of credibility beyond demeanor, such as
factual inconsistencies in the applicant’s testimony.
183
As one immigration
judge explained, when judges are taught to focus on the content of
testimony rather than nonverbal cues,
184
video does not make a difference
because “you really watch a person on that screen and you really pretty
much can hear them the same way you can hear them [in person].”
185
Televideo also operates in a context in which judicial maneuvering has
already been severely constrained by changes in the immigration law and
prosecutorial practices. Since the early 1990s, Congress has broadened
standards for removal, while eliminating and reducing many forms of
relief.
186
Furthermore, despite a growing recognition of the discretion held
179
See Press Release, U.S. Dept of Justice, Attorney General Alberto R. Gonzales Outlines
Reforms for Immigration Courts and Board of Immigration Appeals (Aug. 9, 2006), http://www.
justice.gov/archive/opa/pr/2006/August/06_ag_520.html [http://perma.cc/E4BL-DP2R] (announcing a
new effort to improve the performance and quality of work of the nations immigration court system).
180
COURT PRACTICE MANUAL, supra note 84.
181
IMMIGRATION BENCHBOOK, supra note 10, available at http://www.justice.gov/eoir/
immigration-judge-benchbook [http://perma.cc/559Z-FLG5].
182
GAO REPORT, supra note 128, at 38. In a seminal study of judicial decisionmaking in
nondetained asylum cases, scholars found significant disparity in grant rates for asylum cases despite
random judicial assignment. Ramji-Nogales et al., supra note 149.
183
See, e.g., Telephone Interview #48, supra note 1 (explaining that since 2006 judges have tons
more training, including training to not rest too much on body language or whether people have
downcast eyes and things like that in making credibility determinations). Such attentiveness to what
constitutes a proper adverse credibility finding is informed by the growing realization that humans
even those who are highly trainedare poor lie detectors. See, e.g., Bella M. DePaulo et al., The
AccuracyConfidence Correlation in the Detection of Deception, 1 PERSONALITY & SOC. PSYCHOL.
REV. 346, 346 (1997) (finding that the average persons ability to detect deception is barely better than
flipping a coin).
184
Social science research has found that human lie detection can be enhanced by focusing on
speech content rather than on visual information. See Saul M. Kassin, Human Judges of Truth,
Deception, and Credibility: Confident but Erroneous, 23 CARDOZO L. REV. 809, 816 (2002). The
importance of substance rather than nonverbal cues is particularly critical in the immigration context,
given that respondents hail from a range of cultures and backgrounds where identical nonverbal cues
can mean quite different things.
185
Telephone Interview #48, supra note 1 (I dont really think that [video impacts the ability to
observe demeanor] because you really watch a person on that screen and you really pretty much can
hear them the same way you can hear them [in person].).
186
See Nancy Morawetz, Understanding the Impact of the 1996 Deportation Laws and the Limited
Scope of Proposed Reforms, 113 HARV. L. REV. 1936, 1936 (2000) (showing how the 1996
amendments to the immigration law drastically changed the consequences of criminal convictions for
lawful permanent residents). For a thoughtful discussion of how these changes in the immigration law
have redefined the obligations of criminal defense counsel, see Yolanda Vazquez, Advising Noncitizen
Defendants on the Immigration Consequences of Criminal Convictions: The Ethical Answer for the
Criminal Defense Lawyer, the Court, and the Sixth Amendment, 20 BERKELEY LA RAZA L.J. 31 (2010).
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by immigration prosecutors,
187
exercise of such discretion in the context of
detention is rare. Quite the opposite: in the detained courtrooms I observed,
adversarial prosecutors mechanically contested all claims, as they managed
crushing caseloads that often did not allow time to research the merits of
the governing law or underlying facts.
188
Not surprisingly, detained
immigration court records I reviewed included virtually no discretionary
case closures by prosecutors.
189
Another important factor is the severe resource constraints facing
immigration courts, particularly those adjudicating detained cases. Due to
limited bed space and the high costs associated with detention, the
Department of Justice now prioritizes detained case completions over those
of nondetained respondents.
190
In San Antonio, for example, I routinely
observed judges explaining to detainees that their Washington
Headquarters required them to complete all detained cases in sixty days.
191
This expedited scheduling practice, known as the rocket docket,
192
has
pressurized case review in precisely those courts where the televideo
187
Memorandum from John Morton, Dir., U.S. Immigration & Customs Enforcement, to All ICE
Employees, Civil Immigration Enforcement: Priorities for the Apprehension, Detention, and Removal
of Aliens (Mar. 2, 2011) [hereinafter Memo from John Morton], available at http://www.ice.gov/doclib/
news/releases/2011/110302washingtondc.pdf [https://perma.cc/QL44-ABZC?type=pdf] (setting forth
the governments plan to prioritize deportations based on seriousness of the immigrants criminal
record); see also SHOBA SIVAPRASAD WADHIA, BEYOND DEPORTATION: THE ROLE OF PROSECUTORIAL
DISCRETION IN IMMIGRATION CASES (2015) (describing the history, theory, and application of
prosecutorial discretion in immigration law); Adam B. Cox & Cristina M. Rodríguez, The President
and Immigration Law, 119 YALE L.J. 458 (2009) (revealing how the executive exerts discretion in
deciding who is selected for deportation from the United States).
188
David Martin made a similar observation in the context of asylum adjudication. David A.
Martin, Reforming Asylum Adjudication: On Navigating the Coast of Bohemia, 138 U. PA. L. REV.
1247, 1308 (1990) (In busy districts, trial attorneys have little time to prepare the cases. Sometimes
they are only able to review the file for the first time while direct examination is proceeding.).
189
For example, records for fiscal year 2012 included 437 prosecutorial discretion terminations and
9120 prosecutorial discretion administrative closures. However, only twenty-six of these terminations
and twenty-four of these closures involved detained removal cases. The rest were all in nondetained
removal cases. Recent empirical work by Nina Rabin also suggests that the culture of the prosecutorial
agency, which tends to view all immigrants as criminal threats, may contribute to the refusal by
prosecutors to exercise discretion. Nina Rabin, Victims or Criminals? Discretion, Sorting, and
Bureaucratic Culture in the U.S. Immigration System, 23 S. CAL. REV. L. & SOC. JUST. 195, 196
(2014).
190
Improving Efficiency and Ensuring Justice in the Immigration Court System: Hearing Before
the S. Comm. on the Judiciary, 112th Cong. 2 (2011), http://www.justice.gov/eoir/press/2011/EOIR
testimony05182011.pdf [http://perma.cc/C2BQ-KMLH] (statement of Juan P. Osuna, Director, Exec.
Office for Immigration Review) (The highest priority cases for EOIR are those involving detained
aliens.). Judith Resniks research on judges identifies a broader trend among the judiciary toward
active management of court calendars in order to increase efficiency and speed case disposition. Judith
Resnik, Managerial Judges, 96 HARV. L. REV. 374, 379 (1982).
191
See VTC REVIEW, supra note 6, at Executive Summary (explaining that in the San Antonio
Immigration Court, [t]he new Case Completion Goal for detained cases is to have 85% completed
within 60 days).
192
Telephone Interview #48, supra note 1.
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experiment is ongoing. The end result is that, regardless of presentational
medium, judges presiding over these cases have little time to engage in
detailed fact analysis or creative discretionary decisionmaking.
This Article’s null result for trial outcomes is also in keeping with a
small body of laboratory-based experiments on video use at trial. Research
conducted primarily on remote child victim testimony in simulated criminal
trials has found that televised testimony has no observable effect on jury
verdicts. Some studies found that observing testimony by video, rather than
in person, decreased jurors’ initial ratings of a child victim’s honesty,
intelligence, or other similar qualities.
193
However, such results appear to be
temporary,
194
as post-deliberation verdicts on whether to convict remained
unchanged across video and in-person modes.
195
A smattering of other studies conducted on videoconferencing’s use in
civil trials has likewise concluded that trial outcomes remain unchanged
when video is introduced. For example, one study found that a videotape
193
See, e.g., Gail S. Goodman et al., Face-to-Face Confrontation: Effects of Closed-Circuit
Technology on Childrens Eyewitness Testimony and Jurors Decisions, 22 LAW & HUM. BEHAV. 165,
199 (1998) (concluding that mock jurors gave lower ratings for honesty, attractiveness, and intelligence
of child witnesses appearing by closed-circuit television); Sara Landström et al., Childrens Live and
Videotaped Testimonies: How Presentation Mode Affects Observers Perception, Assessment and
Memory, 12 LEGAL & CRIMINOLOGICAL PSYCHOL. 333, 344 (2007) (finding that jurors perceived in-
person child testimony as more convincing than child testimony by video); Janet K. Swim et al.,
Videotaped Versus In-Court Witness Testimony: Does Protecting the Child Witness Jeopardize Due
Process?, 23 J. APPLIED SOC. PSYCHOL. 603, 62627 (1993) (documenting that live testimony received
higher juror ratings for accuracy, consistency, and confidence).
194
See, e.g., David F. Ross et al., The Impact of Protective Shields and Videotape Testimony on
Conviction Rates in a Simulated Trial of Child Sexual Abuse, 18 LAW & HUM. BEHAV. 553, 563 (1994)
(finding video testimony had no impact on post-deliberation jury verdicts despite the fact that jurors
interrupted right after the childs testimony were less likely to perceive the defendant as guilty in the
video medium); Swim et al., supra note 193, at 626 (concluding that, although jurors were less likely to
convict at the point of pre-deliberation in the video setting, this difference disappeared after deliberation
with other jurors).
195
See, e.g., Tania E. Eaton et al., ChildWitness and Defendant Credibility: Child Evidence
Presentation Mode and Judicial Instructions, 31 J. APPLIED SOC. PSYCHOL. 1849, 1856 (2001) (finding
no significant difference based on presentation mode in the post-deliberation phase in the primary
variables of child-witness overall credibility, defendant credibility, and defendant guilt); Goodman et
al., supra note 193, at 198 (concluding that the use of closed-circuit technology for child witness did not
diminish jurors ability to identify inaccurate testimony; nor did it change jurors post-deliberation
conviction rates); Rod C.L. Lindsay et al., Whats Fair When a Child Testifies?, 25 J. APPLIED SOC.
PSYCHOL. 870, 88485 (1995) (reporting no difference in juror verdicts or perception of witnesses
across abuse cases where the child victim testified in open court, with a barrier between the child and
the defendant, or through a closed circuit television); Holly K. Orcutt et al., Detecting Deception in
Childrens Testimony: Factfinders Abilities to Reach the Truth in Open Court and Closed-Circuit
Trials, 25 LAW & HUM. BEHAV. 339, 366 (2001) (finding no evidence that using closed-circuit
television for victim testimony influenced jurors post-deliberation decisions); Ross et al., supra note
194, at 55860 (reporting that the medium used for child testimony in a mock child abuse trial did not
have a significant impact on conviction rates after jurors deliberated or on perceptions of the victims
or defendants credibility); Swim et al., supra note 193, at 617, 620 (concluding that medium of
presentation had no significant effect on perceptions of the defendant, perceptions of the victim, or post-
deliberation verdicts).
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trial format did not significantly affect attributions of negligence by the
jury.
196
Another found that the appearance of an expert witness by video did
not alter the jury’s verdict.
197
Yet, these researchers assumed that the case
had reached the trial stage and ignored the potential for video to affect
whether the case reached the trial stage in the first place.
A rare observational study on pretrial use of video technology
examined court data from criminal bail hearings in Chicago. Applying an
interrupted time series analysis, the authors concluded that over time the
abrupt switch in adjudication method from in person to video “caused a rise
in felony bond amounts.”
198
While this research did demonstrate that
criminal defendants were disadvantaged by higher bail amounts under the
video regime, the data did not allow researchers to separately analyze
video’s relationship to judicial decisionmaking (e.g., whether bond was
ordered and, if so, the amount) and litigant engagement (e.g., the amount of
bail defendants requested and whether defense attorneys represented their
clients at the hearings).
199
This limitation makes the research, like previous
studies in the field, incomplete because it cannot disentangle the
complementary pressures of judicial decisionmaking and litigant
engagement. In contrast, the immigration data studied in this Article allow
for precisely this type of analysis.
In sum, immigration case outcomes and adjudicative medium are
certainly linked, but the analysis presented in this Article does not support
the trial disadvantage rationale that commentators emphasize. As this
Section discussed, a number of factors may contribute to the consistency in
grant rates observed across televideo and in-person detained removal cases.
The next Section turns to the related question of why reliance on video is
associated with a troubling decrease in litigant engagement.
B. Litigant Disengagement
The trial-focused debate surrounding courtroom technology has
overlooked how technology might influence the foundational process of
196
Gerald R. Miller et al., Using Videotape in the Courtroom: A Four-Year Test Pattern, 55 U.
DET. J. URB. L. 655, 66162 (1978).