Virtual immigration hearings during COVID could have gone better, GAO says

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The pandemic created big challenges for the nation’s immigration courts, which are used to doing business in person. But according to the Government Accountability Office, DOJ’s Executive Office for Immigration Review, the agency that runs the courts, could have done a better job adapting to virtual. Inconsistent policies and a lack of stakeholder engagement made things more difficult than they needed to be. Rebecca Gambler is director of Homeland Security and Justice Issues at GAO. She talked with about their findings with Federal News Network’s Jared Serbu on Federal Drive with Tom Temin.

Interview transcript:

Jared Serbu: Rebecca, thanks for doing this. And the report certainly gets into a lot of detail about some of the challenges immigration courts face because of COVID. Just in terms of the mechanics of running a court and the throughput of the decisions judges were able to make, especially in those early days after the pandemic first hit. Can you start by just giving us a big picture of some of your observations on again, the challenges that courts face and the extent to which they’ve overcome them since those early days?

Rebecca Gambler: Absolutely, there were three main areas that we looked at as part of our report. And let me focus on two of those areas. First, the first area that we looked at related to how EOIR modified its operations in response to the pandemic. And with regard to that area, we found that EOIR took several steps to respond to the pandemic, to adapt its operations and help address health and safety needs. Those steps included, for example, initially suspending immigration court hearings for individuals who are not in immigration detention facilities and data that we have from the immigration courts indicated that they delayed nearly 600,000 hearings from March through October 2020. Due to court closures, Other steps that the immigration courts took included holding hearings by video, conference or telephone. Also modifying processes for when attorneys, for example, were to drop off hardcopy documents to be filed with the immigration court, modifying those processes to help reduce physical interactions. The immigration courts are within the Executive Office for Immigration Review, or EOIR, which is a component of the Department of Justice. And through our work. We also found that EOIR distributed various guidance documents to immigration court staff regarding protocols that included health and safety requirements. However, we identified two issues with those guidance documents. First, we found that the guidance documents did not specifically direct court staff and court visitors to wear masks in courtrooms during the duration of hearings. This is pretty important because immigration courtrooms are not typical office settings, and so can present some unique circumstances. And we identified instances in which immigration judges did not always require or wear masks in their courtrooms. The second issue we found with EOIR’S guidance was that it wasn’t kept up to date regarding criteria for how to address processes for responding to COVID-19 exposures at immigration courts. And in particular, we found that EOIR’s guidance was relying on an outdated definition of a close contact and didn’t reflect updates that you’re made to that definition throughout the pandemic. The second area that we looked at as it related to your operations during the pandemic was how EOIR communicated or engaged with court stakeholders. And that would include respondents attorneys, private bar associations, and so on. And we found that you’re used different communication mechanisms that were the same mechanisms EOIR uses to regularly communicate with the public. And that would include things like social media accounts, emails, and it’s public website. But the stakeholders that we spoke with told us that they had limited opportunities to engage with EOIR during the pandemic, and these concerns were heightened during the pandemic, even though they sort of also existed prior to the pandemic.

Jared Serbu: Yeah, I just wanted to flag that just to make sure people don’t get the impression that this fell off during the pandemic. They really had not done any meaningful stakeholder engagement for the past four years. Is that right?

Rebecca Gambler: That’s right. So from the fall of 2017, through April 2021, your had generally stopped holding regular stakeholder meetings. And the stakeholders that we spoke with for our work said these meetings had historically really provided a good opportunity for two way communications with EOIR. So these regular stakeholder meetings had sort of fallen off even before the pandemic, but the pandemic kind of heightened to stakeholders concerns about those limited interactions with EOIR.

Jared Serbu: I just wanted to go back to one of the earlier points you made about the fact that some 600,000 hearings were delayed. A lot of that’s obviously understandable that the whole world was kind of in chaos in those first few months. And nobody quite knew how to do normal operations. But it seems like at least part of this was it took EOIR a fairly long time to figure out how to do virtual hearings until October, a good seven months there. Did your work uncover any kind of sense that they could have managed more cases had they moved to virtual options or managed courtrooms a little bit more efficiently before October?

Rebecca Gambler: As you noted, our report did find that you’re initially suspended hearings for individuals who were not in immigration detention facilities while they were awaiting resolution of their court cases. In late June, he or did resume a limited number of hearings for individuals who were not detained. And as of earlier this year, April 2021, you’re told us that about 30 to 50 immigration courts that had cases where individuals were not detained had resumed hearings. You know, our work really spoke to the need for your to have in place and keep updated its guidance documents so that immigration courts know how to operate including things like ensuring that their guidance is specifically tailored to mask wearing in courtrooms and also is updated to reflect current processes and criteria to use in making decisions about when COVID 19. exposures occur and immigration courts.

Jared Serbu: Yeah, important point you made a second ago, which is that there are two different categories of immigrants coming before the court here, the detained and the non detained. And I suppose the effect of all these continuances on the non detained would simply be that their removal is delayed, for the detained it probably just means their detention is extended. Is that a fair assumption?

Rebecca Gambler: That’s right. And for those individuals who are in immigration proceedings, and who are in detention facilities, so individuals who are detained, EOIR generally did not postpone their hearings. And that’s in part because hearings for those individuals have historically been deemed a priority for EOIR.

Jared Serbu: And just to finish up on one last point, which is you also examined immigrants access to counsel as part of the pretty extensive appendix in this report. Finish us up here by telling us a little bit about what you found how the pandemic impacted their access to counsel.

Rebecca Gambler: Absolutely. EOIR were has two specific programs that we looked at that provide legal information to different populations regarding immigration, court processes and possible forms of relief from removal. And what we found through our work was that near the beginning of the pandemic, most of the providers who provide those services to those target populations switched from in person services to offering virtual or more remote options. An example of that would be , for example, use of pre recorded videos to be shown to individuals who are in immigration detention facilities. And so those service providers did make changes to the services in response to the pandemic.

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