Failure to Appear. Videoconferencing's promise of increased access to justice has a disconnect in immigration courts

• Author: Lorelei Laird
• Pages: 18-19

that the goods, ser vices, privileges or

activities prov ided by places of pub-

lic accommodation be equa lly acces-

sible to people with disabilitie s,” the

DOJ said.

The DOJ also stated that i n absence

of specifi c web-accessibility reg ula-

tions, public accommodations ca n

be fl exible in how they comply with

the ADA’s general nondiscrimina-

tion and e ective c ommunication

requirements.

Lainey Feingold, a disability r ights

lawyer in Berkeley, California , who

has worked on web accessibilit y cases

since 2000, says that means the DOJ

never doubted that the ADA applies to

websites.

“The ADA, since the beg inning,

has had langua ge that if you are cov-

ered by the ADA, you have to e e c-

tively communicate wit h the public,

your members, your patients,” she

says. “The only way to e ectively com-

municate information on a website

or mobile application is to have that

website or mobile app be accessible.”

The ABA House of Delegates

weighed in at the 2018 annual meet-

ing, urging cour ts and government

entities to interpret the A DA as apply-

ing to technology, goods and ser vices

delivered via technolog y, regardless

of whether the entity solely exists v ir-

tually or has a nexu s to a physical

location.

Despite the lack of specifi c regu-

lations, Launey says her clients are

making their websites more a ccessible

in light of the DOJ response and the

Domino’s decision.

She adds that many of them delayed

making expensive c hanges in case the

DOJ issued a standard ot her than the

WCAG 2.0 AA—which is the standard

experts say a ords maximum accessi-

bility but is still at tainable. WCAG 2.1

AA was published in June 2018 and

includes the same requirements.

Feingold calls the unresolved ques-

tions around web accessibi lity distrac-

tions, saying that companies h ave the

tools to make their website s accessi-

ble. (Go to ABAJournal.com t o read

“How to make a website accessible.”)

“It is not complex as to how to

develop an accessibilit y program,”

Feingold says. “As with everythi ng

worth doing, it does take ex pertise

and commitment.” Q

Failure

to Appear

Videoconferencing’s

promise of increased

access to justice

has a disconnect

in immigration courts

By Lorelei Laird

K.T. showed up

early for his immi-

gration court hear -

ing, but it was

adjourned w ithout

hi m a nyw ay.

For this hearing, K.T. did not

appear at New York City’s Varick

Street Immigrat ion Court , where

his case was bei ng heard. Instead,

he went to the teleconferencing

room at the Orange County, New

York, jail, which was holding him

under a contract with Im migra-

tion and Customs Enforcement.

According to a complaint in a

lawsuit fi led later, the gu ard told

K.T. at 8:30 a.m. to wait for the

court to cal l. So he waited. And

waited. And waited.

At noon, the guard ca lled the

immigration cour t and learned

that the judge in K.T.’s case had

intentionally never called . The

judge had already connec ted the

court’s one v ideoconferencing

line to another jail and, reg ard-

less of what other hearings were

scheduled, didn’t want to discon-

nect for fear that he would never

be able to reconnect. Then the

judge adjourned the case, in pa rt,

because K.T. didn’t appear by

video—even though he was wa it-

ing the whole time.

K.T.’s hea ring was rescheduled

for April, fi ve months af ter his

original hear ing and nine months

after he was fi rst detained. He

is now one of the plainti s in a

federal lawsuit a lleging that an

ICE policy of exclusively using

teleconferencing at Varick Street is

intended “to expedit e deportations at

the expense of due process.”

In fact, advoc ates for immigrants

have argued for years th at the mis-

use of videoconferencing could v io-

late their due process rights. Th at’s

even though many state cour ts see

it as a money-saver—and in some

cases, a way to incre ase access to the

courts when travel is di  cu lt. The

most experienced stat e courts are

already following at lea st some of the

best practices for the u se of video in

courtroom proceed ings, as outlined

by a 2014 report from the Center for

Legal & Court Technology at Wi lliam

& Mary Law School. But by the same

metrics, the immig ration courts

appear to be falter ing—in a way that

the plainti s i n K.T.’s lawsuit allege

can a e ct the outcomes of the cases.

“Generally, our understanding is

that this is a far less e  cient sys tem

than what is sometimes ava ilable in

other courts,” says Brooke Menschel,

civil rights c ounsel for Brooklyn

Defender Services and an attorney

on K.T.’s case, P.L., et al., v. ICE.

The seven lead plainti s in P.L.,

a proposed class act ion lawsuit that

seeks to include thousands of deta in-

ees with ca ses at Varick Street, s ay

ICE is denying immigrant s appear-

ing at the court due process, the r ight

to counsel and the right of ac cess to

the courts.

TECHNICAL DIFFICULTIES

Videoconferencing for immigra-

tion hearings is not unique to the

Varick Street Immigration C ourt.

It’s used throughout the national

immigration cour t system, occasion-

ally in some courts , but exclusively

by judges at two special V TC-only

“Immigration Adjudication Centers”

in Falls Church, Virg inia, and Fort

Worth, Texas . The technology is

especially li kely to be used for immi-

grants detai ned in rural areas far

from an immigrat ion court.

But for immigrants in New York—

where most are held in suburban or

upstate jails that contr act with ICE—

the distance to t he court is not the

problem. Rather, ICE’s New York

fi eld o ce dec ided last June that it

would no longer bring any immi-

grants to Varick Stree t in person,

National

Pulse

The Docket

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