EOIR Guidance on Internet-Based Remote Hearings

Internet-based remote court hearings, myattorneyusa.com

The Executive Office for Immigration Review (EOIR) oversees the administrative Immigration Court system. On August 11, 2022, the Director of the EOIR, David L. Neal, published a memorandum titled “Internet-Based Hearings.” You can read the full memorandum here.

General Introduction to Immigration Court Teleconference Hearings Over the Internet

The memorandum begins by explaining that hearings before immigration judges can be held in-person at an immigration court and/or with one or more of the participants appearing at the hearing by video or telephone from different locations. In the past, the EOIR relied exclusvely on a closed video teleconferencing system. However, the EOIR now allows participants to appear through Webex, an online video teleconferencing platform run by Cisco. The Director wrote that “EOIR anticipates that hearings using Webex or other, similar platforms will replain important to EOIR's operations in the future.”

Statutes and Regulations for Immigration Court Video Teleconference Hearings

The EOIR is authorized to hold internet-based hearings under sections 240(b)(2)(A) and (b)(2)(B) of the Immigration and Nationality Act (INA). The regulation at 8 CFR 1003.25(c) permits immigration judges to conduct hearings through video teleconference to the same extent as he or she is permitted to conduct hearings in person. While these provisions were originally used for closed video teleconference systems, the Director made clear that the EOIR considers the provisions to permit online video teleconferencing hearings to the same extent that they permit the use of closed video teleconferencing.

The statutes and regulations do not restrict different configurations of internet-based hearings. For example, the Director noted that an immigration judge may conduct a hearing in person, but with one or both parties appearing by video. Parties may, at the discretion of the immigration judge, appear by video from inside the court building or from outside the court building.

Internet-Based Immigration Court Remote Court Hearing Guidance

The Director explained that decisions with respect to whether a hearing is held in-person or over the internet rests solely with the immigration court. This applies to whether the immigration judge appears in court or remotely and also whether the respondent and his or her counsel must appear in court or remotely. The decision on whether to allow parties to appear remotely “is made in accordance with [EOIR] policy and operational needs.”

The immigration court will not in any case request that an unrepresented respondent, meaning a respondent who does not have an an attorney, appear remotely. However, an unrepresented respondent may, on his or her own initiative, request to appear remotely. The Director wrote that immigration judges should generally grant requests by unrepresented respondents to appear remotely.

Witnesses may appear remotely at the discretion of the immigration judge. The Director's guidance provides that immigration judges should grant requests for witnesses to appear remotely provided that the request in question is reasonable.

The parties may request to appear in person if they are directed to appear remotely or request to appear remotely if they are directed to appear remotely. The Director provides that such requests must be made in writing fifteen days before the scheduled hearing unless one or both requirements are waived by the immigration judge.

Where a respondent has an attorney and both the respondent and his or her attorney are appearing remotely, the EOIR has no preference whether the respondent and counsel appear together or from different locations. The EOIR does not require respondents to appear with counsel from counsel's office.

When participants in a hearing are appearing remotely, immigration judges are required to confirm that everyone who is appearing remotely is clearly visible on screen and that all of the participants can hear everything that is said.

Every immigration court has designated points of contact to support internet-based hearings. These points of contact help immigration judges and hearing participants address any issues with internet-based hearings as they arise. Points of contact assist with issues involving connection issues. If the respondent lacks a device that he or she can use to appear remotely, the court will permit the respondent to appear remotely from the immigration court at a designated room using the court's equipment.

If a participant in a hearing who is appearing remotely is not connected at the start of the hearing or if a participant loses contact during a hearing, immigration judges are instructed to wait a reasonable time to see if the participant either connects in the first instance or regains connectivity. If the participant does not connect or regain connectivity, the immigration judge should ask the court's point of contact whether the participant reported a connectivity issue. The immigration judge should determine how to proceed only after consulting the point of contact. If an audio connection can be established by a video connection cannot be established, the immigration judge may proceed with an audio-only hearing only if the parties consent (see 8 CFR 1003.25(c)). The hearing should be re-scheduled if connectivity issues prevent effective communication, and in such a case, the immigration judge and court staff should work with the respondent's counsel to find a mutually agreeable hearing date in the reasonably near future.