Homeland Security Lawyers In Manhattan Are Increasingly Using Video To 'Appear' In Immigration Court 20 Blocks Away

Immigration lawyers Joshua Bardavid

The trip from Federal Plaza to the intersection of Varick and Houston Streets can be done in less than 30 minutes when walking west and taking the uptown 1 train. But for the government’s immigration trial attorneys, who work out of Federal Plaza, the trip is considered so unwieldy that they’re now showing up by video at the new immigration courtrooms that recently opened on Varick Street.

There are five additional courtrooms at this SoHo location. Just like at Federal Plaza, they are used for immigrants who travel from throughout the metro region for regular in-person court appearances. (These immigrants are not held in detention.) The new courtrooms were built to alleviate the pressure at Federal Plaza, where 36 judges had a backlog of more than 100,000 cases. Some of those judges were transferred to the new courtrooms and a few more were hired to work at Varick Street.

The Department of Homeland Security employs the trial attorneys who represent the government in immigration court proceedings. On April 10th, it filed a motion stating there’s no office space at Varick Street “to accommodate the attorneys or the administrative files necessary.” It also noted that new office space isn’t slated for completion until late 2020.

To avoid traveling from Federal Plaza with their voluminous files, the government attorneys now appear in the new courtrooms by video. The government said this is allowed because video is already a widely-accepted practice for court authorized by the Immigration and Nationality Act, and that it’s efficient and can save money.

On Wednesday, a new judge, Monte Horton, was presiding over one new courtroom at Varick Street for quick procedural hearings known as a master calendar session. At the empty table where a DHS lawyer normally sits, to question each immigrant, there was just a big, white cardboard box for immigration lawyers to submit copies of documents filed with the court. But the video feed to Federal Plaza was broken. (Equipment failures have been a problem in court hearings by video.) After a delay, the DHS attorney appeared by telephone. The whole courtroom could hear him on the speakers.

Immigration lawyer Robert Martinez was there with a client. He said it definitely felt like something was missing. “It’s almost part of the theater of the courtroom when you have your opponent in the table opposed to you.”

His client’s adult daughter also wasn’t satisfied. She said she wanted to see the opposing counsel’s face.

Immigration lawyers have other objections. Joshua Bardavid said there are times when each side submits last-minute documents during a preliminary hearing or a trial. Without being there in person, he said, “We cannot review documents that they may have to submit, they cannot review documents that we have to submit. It can cause delays.”

Bardavid said judges adjourn cases when someone wants to review a document, making the court process drag on even longer in a system that’s already coping with a crushing backlog.

The Executive Office for Immigration Review, which runs the immigration courts, did not respond to a question from WNYC about why it complied so readily with DHS’s request to allow its trial attorneys to appear by video.

Cory Forman, treasurer of the New York chapter of the American Immigration Lawyers Association, said his group is exploring potential actions to take, and whether this new use of video violates due process.

In his previous work as a criminal attorney, Forman said private lawyers and district attorneys often ran back and forth to two different locations on Centre Street. “A DA would never think of saying ‘hey this is way too far for us,’” he said. "It’s so insulting."

Here in New York, video is also used for immigrants held in detention. The detainees used to be brought to Varick Street from two jails in New Jersey and one in upstate New York, but that stopped last year. An unrelated lawsuit was filed earlier this year by immigration lawyers who claim video hearings frequently break down, cause delays and violate their clients’ rights to due process.

The government also opened two more courtrooms at Varick Street for detained cases, after a lawsuit alleging immigrants in detention wait too long to see a judge.

Beth Fertig is a senior reporter covering courts and legal affairs at WNYC. You can follow her on Twitter at @bethfertig.