Practice
Advisory on Video Removal Hearings by J. Traci Hong, Staff Attorney, American Immigration Law Foundation[i] In Immigration Courts across the
country, you will find fewer and fewer respondents in the
courtroom on the day of their merits hearing. Instead,
they will be miles away in a detention facility,
handcuffed and in prison garb, staring at their own
hearing through a television. They will be unable
to consult with their attorney during the hearing, or to
review any documents submitted by the Immigration and
Naturalization Service (INS) in the courtroom. Worst
of all, they will have to testify to a video camera
instead of a live Immigration Judge, with the translator
whom they are unable to observe and who may or may not be
able to understand them completely over the video
transmission. As more merit hearings are held by
video, an increasing number of respondents in removal
proceedings are in danger of losing their constitutional
and statutory rights to a full and fair hearing. This
practice advisory discusses the problems arising from the
use of video conferencing in merits hearings and suggests
strategies for protecting the respondents' rights and
insisting on in-person hearings. A sample motion
requesting an in-person merits hearing accompanies this
advisory. I. Statute and Regulation
Governing Video Hearings in Removal Proceedings Section 240(b)(2)(A)(iii) of the
Immigration and Nationality Act (INA) authorizes removal
hearings to take place through video conferencing. The
statute is silent regarding the need to obtain the
respondent's consent before conducting a merits hearing
by video conferencing. In contrast, the respondent
must be informed of his or her right to proceed in person
or by video and give consent before a merits hearing can
proceed by telephone. INA §240(b)(2)(B). The
structure of the statute seems to imply that that the
Immigration Judge need not obtain consent from the
respondent in order to conduct a video merits hearing. The regulation takes this
statutory grant one crucial step further. 8 CFR
§3.25(c) states that "[a]n Immigration Judge may
conduct hearings through video conference to the same
extent as he or she may conduct hearings in person."
(emphasis added). However, the fact that the
statute generally allows evidentiary hearings to take
place through video conferencing does not and should not
mean that video hearings should be used in an identical
manner as in-person hearings. Video conferencing
should be used in removal proceedings only when its usage
would not violate the respondents' right to due process
and their rights under the INA. Currently, each Immigration Judge
must decide in his or her discretion whether and under
what circumstances video conferencing will be used in his
or her removal cases. Neither the EOIR or the
Office of Chief Immigration Judge (OCIJ) have provided
any guidelines II. What to Do before a
Video Merits Hearing So what should you do when you are
faced with the prospect of a video merits hearing? File
a pre-hearing motion asking the Immigration Judge to hold
the hearing in person and not by video. Even though
the statute and the regulation allow merits hearings to
be conducted by video, the EOIR and the OCIJ have stated
that it is up to the discretion of the individual
Immigration Judge to determine whether and to what extent
video conferencing will be used in his or her courtroom.
Therefore, your motion must inform the Immigration Judge
of the various ways in which a merits hearing conducted
by video will jeopardize your client's rights to a full
and fair hearing. Accompanying this practice
advisory is a sample motion. It sets forth a number
of ways in which a video hearing may violate your
client's constitutional and statutory rights to a full
and fair hearing. The motion should be tailored to
reflect the particular harms that your client may suffer. III. What to Do during a
Video Merits Hearing If the Immigration Judge denies
the motion and the merits hearing proceeds by video, then
you should object on record whenever you are unable to
fully present your case because the hearing is taking
place by video rather than in person. Following are
some potential problems that may arise during the hearing
and the basis for objecting to the problems. It is
crucial that you object to these problems on record.
During
the hearing, the respondent, who is probably already
nervous, may have difficulty understanding the questions
asked in the courtroom, but are afraid and intimated to
say that she does not understand the questions. If
your client appears to be having problems comprehending
the questions asked her or the proceeding in general,
stop the examination (or ask the court to stop it, if the
questions are being asked by the INS Trial Attorney or
the Immigration Judge). Express your concern on
record that your client does not appear to understand
what is happening and ask to speak with your client
alone. If you determine that your client is having
problems understanding the proceedings, then explain the
situation to the Immigration Judge on record and ask to
continue the hearing until your client can appear in
person. If your request is denied, object on record
that the denial constitutes a violation of your client's
right to present evidence on her own behalf under INA
§240(b)(4)(B). Each of these steps should take
place on record.
Whenever
possible, have a observer who is fluent in both the
respondent's language and English observe the hearing.
If that person notices any discrepancies in translation
of the questions and/or the answers, stop the hearing to
point out and correct the problem on record. If the
translation continues to be inadequate, ask the
Immigration Judge on record to continue the hearing and
get another interpreter. Explain that having the
hearing by video is making the translation problem worse
and ask the Judge to have your client finish her
testimony in person. If your request is denied,
object on record that the denial violates your client's
right to present evidence on her own behalf under INA
§240(b)(4)(B).
If
you experience technical problems during the hearing, ask
the Immigration Judge on the record to stop the hearing,
explain your concern and ask the Judge to continue the
hearing and let your client appear in person. If
the Immigration Judge denies your request, then object on
the record that these technical problems interfere with
your client's right to present evidence on his own
behalf, to examine the evidence against him, or to
cross-examine witnesses presented by the Government under
INA §240(b)(4)(B). IV. What to Do after a
Video Merits Hearing If you are denied relief in a
video merits hearing and you believe that the denial is
attributable at least in part to the fact that the merits
hearing was conducted by video, then the prejudice caused
by the video hearing should serve one ore more grounds of
appeal to the Board of Immigration Appeal. You
should describe the harms suffered by your client with
specificity in the notice of appeal, as required under 8
CFR §3.3(b). If you filed the pre-hearing
motion and objected on record throughout the hearing, you
have already developed a good record and have laid a
solid basis for appeal. When preparing your brief
for the BIA, carefully review the transcript of the
hearing and use excerpts to point out the various ways in
which you were hampered from presenting your case
effectively because the hearing was held by video. If
the Immigration Judge did not find your client credible,
determine if the judge has been influenced by the fact
that the respondent had to testify by video rather than
in person. While the Immigration Judge is not
likely to admit that video conferencing negatively
affected his or her judgment about the respondent, he or
she may couch such adverse credibility finding by
criticizing the respondent's nervous demeanor or her
failure to provide a detailed account of her persecution.
Also review the transcript to see if there were technical
problems with the quality of the audio and/or video that
may have influenced the Immigration Judge to find your
client not credible. Finally, please contact the American Immigration Law Foundation (AILF) and let us know if you have an appeal based on a video merits hearing. AILF may be able to act as a co-counsel on the appeal or file an amicus brief, depending on the facts of your case.
[i] The author would like to thank Nadine Wettstein, Tom Hutchins, Peggy Gleason, Debi Sanders, Chris Nugent, Christina DeConcini, Karen Grisez and Anna Gallagher for their assistance and valuable comments on this advisory. |
THE FACTS USED IN THIS MOTION HAVE BEEN BRACKETED AND HIGHLIGHTED BECAUSE THEY MAY NOT BE APPLICABLE TO YOUR CASE. THESE SECTIONS SHOULD BE REVISED TO REFLECT THE RESPONDENT'S PARTICULAR SITUATION. THE STATUTES, REGULATIONS AND CASES CITED IN THE MOTION ARE VALID AS OF APRIL 25, 2001. IF YOU ARE USING THIS MOTION AFTER THIS DATE, YOU SHOULD CHECK THE CITES TO ENSURE THAT THE LAW HAS NOT CHANGED. THIS MOTION DOES NOT CONSTITUTE LEGAL ADVICE FROM THE AMERICAN IMMIGRATION LAW FOUNDATION AND DOES NOT SUBSTITUTE FOR LEGAL ADVICE FROM AN ATTORNEY IN INDIVIDUAL CASES.
UNITED
STATES DEPARTMENT OF JUSTICE In the
Matter of:
) RESPONDENT'S MOTION TO REQUEST IN-PERSON MERITS HEARING Respondent, [NAME], through [HIS/HER] counsel of record, respectfully requests the court to allow the respondent to appear in person at [HIS/HER] merits hearing. The hearing is currently scheduled to take place on [DATE, TIME] by video conferencing. I. STATEMENT OF FACTS The respondent is a native and citizen of [COUNTRY]. [HE/SHE] came to the United States on [DATE] through [POINT OF ENTRY]. As [NAME] did not have a visa or other documents necessary for admission, [HE/SHE] was placed in expedited removal. During the inspection, [NAME] expressed fear of returning to [COUNTRY] because [HE/SHE] fears persecution in that country on account of [GROUND FOR PERSECUTION]. The Immigration and Naturalization Service (INS) then conducted a credible fear interview and determined that [NAME] had a credible fear of persecution upon [HIS/HER] return to [COUNTRY]. [HE/SHE] was served with a Notice to Appear (NTA) on [DATE], and the NTA was filed with this court on [DATE]. INS has refused to parole [NAME], and [HE/SHE] is being detained at [DETENTION FACILITY] in [CITY, STATE] during the pendency of these proceedings. The first master calendar hearing in this case was held on [DATE]. [NAME] admitted to the allegations on the NTA and conceded inadmissibility under [APPLICABLE SECTION OF INA§212]. [NAME] informed this court that [HE/SHE] would be applying for asylum, withholding of removal and protection under the Convention Against Torture (CAT). [NAME] appeared by video from [DETENTION FACILITY] and [HIS/HER] counsel appeared in-person at the Immigration Court. The court directed the respondent to file the I-589 application for asylum, withholding of removal and CAT claim at the next master hearing on [DATE]. The second master hearing was held on [DATE]. [NAME] again appeared by video from [DETENTION FACILITY] with his counsel present in the courtroom. The counsel presented the I-589 signed by the respondent at a previous visit to the detention facility. The court briefly reviewed the I-589 and set the merits hearing on the application for [DATE]. When the respondent's counsel asked whether [NAME] would appear in-person or by video, the court responded that the respondent would appear by video. The respondent's counsel then requested the court to allow the respondent to appear at [HIS/HER] merits hearing in-person. After a brief discussion of the reasons for requesting the respondent's appearance in-person, the court directed the respondent's counsel to file a written motion requesting an in-person hearing. II. ARGUMENTS AND AUTHORITIES [NAME] should be allowed to appear in person at [HIS/HER] merits hearing. Not allowing the respondent to testify and participate in person at [HIS/HER] own asylum hearing does not comport with due process under the Fifth Amendment to the U.S. Constitution. It also eviscerates the rights given to respondents in removal proceeding under the Immigration and Nationality Act (INA) and the pertinent regulations. A. Due Process Due process under the Fifth Amendment guarantees that the government will not deprive individuals of liberty or property interests without having adequate procedures that would guard against erroneous deprivation of those interests. Matthews v. Eldridge, 424 U.S. 319, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976). The Supreme Court has observed that "[t]he fundamental requirement of due process is the opportunity to be heard 'at a meaningful time and in a meaningful manner.'" Id. at 333 (quoting Armstrong v. Manzo, 380 U.S. 545, 552 (1952)). The Supreme Court in Matthews v. Eldridge set forth three factors which must be balanced in order to determine whether a particular procedure comports with the due process clause: First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. 380 U.S. at 335. In the instant case, the private interest that will be affected by the official action is [NAME'S] interest in not being erroneously returned to a country where [HE/SHE] may suffer persecution and torture, in violation of international and U.S. laws protecting refugees. One federal court has noted that "[r]emoval to a country overrun with civil war, violence, and government-sanctioned terrorist organizations may lead to most serious of deprivations." Orantes-Hernandez v. Meese, 685 F. Supp. 1488, 1505 (C.D. Cal. 1988), aff'd 919 F.2d 549 (9th Cir. 1990). The Board of Immigration Appeals (BIA) has also acknowledged the respondent's "right to a full and fair hearing on his asylum claim" when applying the Matthews v. Eldridge balancing test in matters of procedural due process. In Re G-D-, Int. Dec. 3418 (BIA En Banc1999). Thus, [NAME] satisfies the first prong of the Matthews balancing test because [HE/SHE] has important interests that will be affected by the procedure at issue in this case. [NAME] also meets the second element of the Matthews v. Eldridge balancing test because there is a substantial risk that [HE/SHE] will be erroneously denied asylum and/or withholding of removal if [HIS/HER] merits hearing is conducted through video conferencing. First and foremost, [NAME'S] credibility may be erroneously compromised if [HE/SHE] is forced to testify by video rather than in person. In virtually all asylum cases, the most important evidence that the applicant can present is his or her own testimony. The regulations recognized and codified the crucial role that the applicant's testimony plays in asylum and withholding of removal cases. 8 CFR §208.13(a) and §208.16(b) state that "[t]he testimony of the applicant, if credible, may be sufficient to sustain the burden of proof without corroboration." The BIA and the courts of appeals have also long acknowledged the significance of the respondent's testimony in asylum and withholding cases. In Re O-D-, Int. Dec. 3334 (BIA 1998); Matter of Mogharrabi, 19 I&N Dec. 439 (BIA 1987); Gailius v. INS, 147 F.3d 34, 45 (1st Cir. 1998); Hamizehi v. INS, 64 F.3d 1240, 1242 (8th Cir. 1995); Bolanos-Hernandez v. INS, 767 F.2d 1277, 1285 (9th Cir. 1984). The BIA has also respected and emphasized the role of the Immigration Judge in determining the credibility of witnesses in general and asylum applicants in particular, because the Immigration Judge is the only tribunal to observe the witnesses' testimony in person. Matter of A-S-, 21 I&N Dec. 1106 (BIA En Banc 1998); Matter of Burbano, 20 I&N Dec. 872, (BIA 1994); Matter of Kulle, 19 I&N Dec. 318 (BIA 1985); Matter of Teng, 15 I&N Dec. 516 (BIA 1975). Furthermore, the courts of appeal "review a credibility finding under the substantial evidence standard, and therefore are required to uphold the IJ's finding unless the evidence presented compels a reasonable factfinder to reach a contrary result." Lopez-Reyes v. INS, 79 F.3d 908, 911 (9th Cir. 1996). One court has observed that "[a]n adverse determination of that issue, by reason of [its] highly deferential standard of review, would be almost insurmountable." Kaur v. INS, 237 F.3d 1098, 1101 (9th Cir. January 24, 2001). Given the paramount importance of the respondent's testimony in an asylum and/or withholding of removal merits hearing and the unique role that the Immigration Judge plays in determining credibility of the respondent, any procedure that may impair the respondent's testimony or the Immigration Judge's ability to observe and determine the respondent's credibility pose too great a risk of an erroneous deprivation of the respondent's interests. Matthews v. Eldridge itself discusses the importance of adequate procedural safeguards where "witness credibility and veracity often are critical to the decisionmaking process." 424 U.S. 319, 343-44 (1975). In performing the three part balancing test, the Supreme Court found that the existing procedures in that case did not pose a risk of erroneous deprivation because witness credibility and veracity was usually not an issue in terminating Social Security disability payments. The court stated that "credibility and veracity may be a factor in the ultimate disability assessment in some cases. But procedural due process rules are shaped by the risk of error inherent in the truthfinding process as applied to the generality of cases, not the rare exceptions." Id. at 344. To date, neither the BIA or the courts of appeal has addressed whether the use of video conferencing in removal proceeding comports with due process. However, federal courts have expressed concern about allowing a party to testify over video where that party's credibility is at issue in other civil proceedings. In U.S. v. Baker, the Fourth Circuit Court of Appeals upheld the use of video conferencing in the civil commitment hearing of a prison inmate. However, the court permitted the use of video conferencing in this context precisely because "the district judge's impression of the respondent is not generally the factor upon which a commitment decision turns." 45 F.3d 837, 845 (4th Cir. 1995). In Edwards v. Logan, the district court allowed a prisoner's civil rights suit to take place by video conferencing. However, it acknowledged that video conferencing "is not the same as actual presence, and it is to be expected that the ability to observe demeanor, central to the fact-finding process, may be lessened in a particular case by video conferencing." 38 F. Supp. 2d 463, 467 (W.D. Va 1999). The court further admonished that video conferencing "may be particularly detrimental where it is a party to the case who is participating by video conferencing, since personal impression may be a crucial factor in persuasion." Id. Even the INS has acknowledged the importance of the respondent's presence and participation at a hearing where his or her credibility is at issue. In at least two federal court cases where the deportation hearings were held telephonically, the INS argued that telephonic hearings were permissible in these instances because credibility of witnesses were not at issue. Bigby v. INS, 21 F.3d 1059, 1064 (11th Cir. 1994); Purba v. INS, 884 F.2d 516, 518 (9th Cir. 1989). In contrast to the situations described in the above cases, the credibility and veracity of the respondent is the most crucial factor in an asylum and/or withholding of removal merits hearing. As discussed above, the respondent may be granted asylum and/or withholding of removal on the strength of his or her testimony alone, if the testimony is found to be credible. 8 CFR §208.13(a), §208.16(b); Matter of Mogharrabi, 19 I&N Dec. 439 (BIA 1987). Therefore, any procedure that may erroneously damage the respondent's credibility or limit the Immigration Judge's ability to determine the respondent's veracity fails to comport with the due process clause. Studies on the use of video conferencing in courtrooms and other settings describe various ways in which a video testimony may erroneously portray a witness's credibility. First, the fact that the witness must testify in front of a camera rather than a live judge or jury may influence his or her behavior. "If the witness becomes camera conscious and either 'grandstands' or becomes nervous, videoconferencing may make the witness appear more or less confident and thus affect his believability." Michael D. Roth, Laissez-Faire Videoconferencing: Remote Witness Testimony and Adversarial Truth, 48 UCLA L. Rev. 185, 204 & n.107 (October 2000) (citing David M. Doret, Trial by Videotape - Can Justice Be Seen To Be Done?, 47 Temp. L.Q. 228, 245-46 (1974); Joanne Cleaver, Videoconferences Not the Place to Put Candid in Front of Camera: Everyone Sees Small Gestures, Nervous Habits, Crain's Chi. Bus. Feb. 2, 1998, available at WL 7284407). Furthermore, the size of the frame in which the witness is shot (close-up, medium or long range), as well as the location of the camera in relation to the witness may also affect the factfinder's perception of the witness's credibility. For instance: A full face shot suggests less expertise than a profile shot since in popular broadcasting, those who address the camera directly are typically the reporters ... who transmit the news rather than initiate it. The expert on the other hand is more often seen either in interview or in discussion, and thus in profile. Roth at 204 (citing Jon Baggaley, Psychology of the TV Image 22 (1980). It should be noted that respondents in removal proceedings almost always appear in a full face, rather than in a profile, shot. In the instant case, forcing the respondent to testify by video would compromise the quality of [HIS/HER] testimony and this court's ability to determine [HIS/HER] credibility in various ways. [NAME] is not technologically sophisticated and is having difficulty understanding the concept of two-way video conferencing. During the two master calendar hearings which also took place by video, [HE/SHE] did not appear to fully comprehend what took place or whom [HE/SHE] was speaking to. [NAME] also appeared nervous and apprehensive because [HE/SHE] does not fully understand and is uncomfortable with the video conferencing process. Even when [HE/SHE] grasped how video conferencing works, [NAME] appeared to have a difficult time looking at and talking to a video camera rather than a live Immigration Judge. [HIS/HER] expressions and body language looked flat and minimized when viewed through the television screen. [NAME'S] credibility was further diminished because [HE/SHE] had to appear on the courtroom TV screen in prison uniforms with [HIS/HER] hands cuffed. At the last master hearing, [DENTENTION FACILITY] did not even allow [HIM/HER] time to shave or get cleaned up before the hearing. [NAME] also seemed evasive or not paying attention to the proceedings because [HE/SHE] did not appear to be watching the proceedings but staring off to the side. However, the problem was that [NAME] was in fact watching the proceedings too carefully. Rather than looking at and talking to the camera, [HE/SHE] was watching and talking to the TV which showed the courtroom. Had [NAME] been technologically sophisticated, [HE/SHE] would have looked at and talked to the camera, which would have made [HIM/HER] appear as though [HE/SHE] was looking directly at the courtroom and therefore appear more credible on the TV screen. Such effects can commonly be observed on TV shows such as 60 Minutes, where the interviewee who is not media savvy appears evasive because he is looking at the interviewer rather than the TV camera when he answers the questions. [NAME] also often hesitated before answering the questions put to [HIM/HER] by the counsel and the court, thereby making [HIM/HER] appear less credible. However, [NAME] was having difficulty understanding the translation of the questions because [HE/SHE] could not see the translator. All [HE/SHE] heard was a disembodied voice that did not match the image that he was watching on the TV screen. [NAME] was confused because [HE/SHE] would hear the translator asking [HIM/HER] to stop talking so that [HE/SHE] can translate but [HE/SHE] could not see the translator, then the Immigration Judge would exhort [HIM/HER] to go on.] In addition to the problems that have already surfaced during the master hearings, conducting the merits hearing by video conferencing will pose other obstacles to proving [NAME'S] asylum claim. For instance, [NAME] suffered a leg injury while [HE/SHE] was detained and tortured by [PERSECUTORS] and now walks with a pronounced limp. However, [NAME] will be unable to adequately demonstrate [HIS/HER] injury to the court, since the camera at [DENTENTION FACILITY] is stationary, and the legs of the respondents at the detention facility remain chained during their hearings. Finally, any technical difficulties with the video conferencing equipment during the hearing, particularly during [NAME'S] testimony, may adversely affect [HIS/HER] credibility. It is common for the audio and/or video transmissions to drop or freeze for several minutes at a time during removal hearings. Even when they work, the picture and/or the sound may fade in and out or be fuzzy. Also, the picture of the respondent may be out of focus or cut off because the guard who operates the camera in the detention facility may not know how to operate it properly. Such interruptions disrupt the flow of the direct or cross examination and will heighten the anxiety of the respondent, making [HIM/HER] appear less credible. These technical difficulties will also interfere with the court's ability to observe [NAME] and determine [HIS/HER] veracity and credibility. The additional procedural safeguard, namely allowing the respondent to testify at the merits hearing in person, would be invaluable. It would cure all the problems discussed above and would allow the Immigration Judge to accurately determine the respondent's credibility and veracity. While the INS may incur additional fiscal and administrative burdens if it allows the respondent to testify at [HIS/HER] merits hearing in person, such costs would not be so prohibitive as to outweigh the respondent's interest in not being erroneously deprived of asylum and/or withholding of removal and being sent back to the country where [HE/SHE] faces persecution and possible torture. B. Respondent's Right under the Immigration and Nationality Act In addition to protection under the due process clause, §240(b)(4) of the Immigration and Nationality Act (INA) gives a respondent in removal proceedings the following rights:
However, [NAME] will be denied the opportunity to fully exercise these rights if [HIS/HER] merits hearing is held by video conferencing. 1. Right to Present Evidence INA §240(b)(4)(B) states that a respondent shall have "a reasonable opportunity ... to present evidence on [his or her] own behalf." The discussion above demonstrates the numerous ways in which testifying by video would erroneously diminish [NAME'S] credibility. It confirms that video merits hearing also deprive the respondents of their right under INA §240(b)(4)(A) to have a reasonable opportunity to present the most important evidence on their own behalf, namely, their own testimony. 2. Interference with the Respondent's Right to Counsel INA §240(b)(4)(A) gives the respondent the privilege of being represented by counsel of [HIS/HER] choice at no expense to the government. However, a video merits hearing diminishes this statutory privilege by unduly interfering with the relationship between [NAME] and [HIS/HER] counsel and by adversely affecting the attorney's ability to present the respondent's case. Since [HE/SHE] cannot be in two places at the same time, the respondent's counsel must choose between being with [HIS/HER] client at the detention facility or in court with the Immigration Judge and the INS Trial Attorney. If the attorney is in Immigration Court during the hearing, then the respondent will not be able to communicate confidentially with [HIS/HER] attorney during the hearing. For example, [NAME] will not be able to draw the counsel's attention to discrepancies in witness testimonies or errors in documentary evidence submitted by the INS. [HE/SHE] will also be unable to confer with the counsel about the progress of the hearing or changes in strategy. Such interference with attorney-client communication violates [NAME'S] right to counsel under INA §240(b)(4)(A). While there are no cases directly on point, one court has observed that the INA and due process encompass more than representation by counsel in name only -- they guarantee "meaningful access to counsel." Garcia-Guzman v. Reno, 65 F. Supp. 2d 1077, 1081 (N.D. Cal. 1999). In the context of a telephonic hearing, the court in Garcia-Guzman found that the respondent's statutory and due process right to counsel were violated in part because the respondent "had no means of privately conferring with or seeking the advice or opinion of his counsel during the hearings." Id. at 1090. In the two master hearings in this case, [NAME] had no way to communicate in private with the counsel immediately before, during, or immediately after the hearing. [HE/SHE] had to wait to confer with the counsel until [HE/SHE] returned to the office. In fact, the counsel has had repeated difficulties communicating with the respondent at all because of [NAME'S] lack of access to telephones in the detention facility. However, if the counsel chooses to be with his or her client at the detention facility for the merits hearing, then he or she may be unable to adequately represent the respondent's interests before the Immigration Judge and against the INS. It will be more difficult for the counsel to argue and respond to legal issues that may arise during the hearing. [HIS/HER] capacity to observe the witnesses' demeanor and tailor the questions accordingly will be greatly diminished, since [HE/SHE] will have to conduct the direct and cross-examinations by video. The trial level right to counsel encompasses the right to effective assistance of counsel. Evitts v. Lucey, 469 U.S. 387, 392 (1985), citing Douglas v. California, 372 U.S. 353 (1963) and Cuyler v. Sullivan, 446 U.S. 335, 344 (1980). However, holding [NAME'S] merits hearing by video will weaken the effectiveness of [HIS/HER] counsel by preventing confidential communication between the respondent and the attorney and otherwise hampers the attorney's ability to examine witnesses and reduce his or her effectiveness in the courtroom. It thereby eviscerates [NAME'S] right to the counsel of [HIS/HER] choice at the most critical time, namely the merits hearing. 3 Right to Examine Evidence INA §240(b)(4)(A) also guarantees the respondent "a reasonable opportunity to examine the evidence against the alien." However, the INS often presents documentary evidence on the day of the merits hearing. If it attempts to do so and the merits hearing is taking place by video, [NAME] will be deprived of the opportunity to examine this evidence, in contravention of INA §240(b)(4)(A). The INS try to justify the last-minute presentation and admission of such evidence by arguing that the respondent's rights are sufficiently protected because [HE/SHE] is represented and [HIS/HER] counsel is in the courtroom. Even if [NAME] is represented, however, [HE/SHE] should still be afforded the opportunity to review the evidence for [HIMSELF/HERSELF], since [HE/SHE] may know something about the evidence that the attorney does not and advise the attorney accordingly. For the forgoing reasons, the respondent respectfully requests that [HE/SHE] be allowed to appear in person at the evidentiary hearing on the merits of [HIS/HER] application for asylum, withholding of removal and protection under the Convention Against Torture. Respectfully submitted, _____________________________
ATTORNEY'S NAME Counsel for the Respondent |