Ninth Circuit in Vilchez v. Holder, Removal Hearings by Videoconference by Aaron S. Haas
Aaron S. Haas Director, Immigration Clinic Washington and Lee School of Law
In Vilchez v. Holder, the Ninth Circuit ruled that a removal hearing by videoconference was not a violation of due process. The court concluded that Vilchez “has failed to establish that the outcome of his hearing ‘may have been affected’ by the fact that his hearing was conducted by video conference.” I wrote an article about this topic several years ago, in which I looked at a large body of social science research on non-verbal communication and how it is impacted by electronic communication technologies. Suffice it to say that few if any of these researchers would agree that a hearing conducted by videoconference would not have been affected by the technology. To the contrary, research shows that nonverbal communication is extremely important and very much affected by technology, in ways that hurt the respondent. Moreover, there are strong legal arguments ignored by the Ninth Circuit that such hearings are unconstitutional.
One of the leading researchers in the field finds that communication has three elements: words, tone of voice, and body language. He has a 7-38-55 rule. That is, 7% of communication is based on words, 38% on tone of voice, and 55% on body language, and when there is a conflict (for example, someone’s body language seems to contradict his words), the element with the higher percent wins. A person who says he is rehabilitated but appears to be shifty-eyed will not be believed – the body language trumps the words. Facial expressions, for example, can be highly subtle and complicated, with eight distinct positions for the brow and forehead, seventeen for eyes and lids, and forty-five for the lower face, and each combination sends different signals.
What’s more, research indicates that the audience does not take into account the fact that the technology may be distorting the communication. The interaction between the viewer and the screen image is so intense that viewers cognitively respond to screen images as though they are real and unconsciously equate media images with real life. The person who is not making eye contact due to videoconferencing technology will be understood simply as someone not making eye contact and therefore deceptive.
This has profound effects for the use of this technology in the courtroom. One of the few areas where this has been studied is in child sex abuse cases, where the child is often permitted to testify by video in order not to have to see his alleged abuser face-to-face. In one study, children testifying by video were found by jurors to be less believable, less accurate in recalling past events, more likely to have made up the story, less honest, less attractive, less intelligent, less consistent, and less confident. Not surprisingly, the conviction rates were significantly higher with live testimony.
The Ninth Circuit simply looked at whether they thought Vilchez received a fair hearing. However, the due process question should be more specific. There are two important due process rights violated by videoconferencing: the right of presence and the right of confrontation.
People have the fundamental right to be present at their own hearing. Watching it on TV is not being “present” by any normal definition. In criminal law, this is beyond dispute, which is why we do not hear of trials taking place by videoconference. In 2004, the Supreme Court even found it a violation of the right of presence for state courthouses not to be handicap accessible.
This right of presence has been extended to administrative hearings when important rights are at stake, such as involuntary commitment proceedings and social security hearings. Removal proceedings should be treated the same as the stakes are as high. The right of confrontation requires a face-to-face confrontation with your accusers and applies in removal hearings. There is long-standing case law from the 1800s that anything short of face-to-face violates this right. I cite several cases where convictions were overturned because the seating arrangements, courtroom layouts or overcrowding prevented the defendant from seeing the witnesses or jury. This view was endorsed by the Supreme Court in 1990, when the court ruled that face-to-face confrontation could only be dispensed with when “necessary to further an important public policy” and even then “the requisite finding of necessity must of course be a case-specific one.” Compare that to the undifferentiated, systematic use of videoconferencing in immigration today with a far less compelling justification (to save money).
It seems to me that the Ninth Circuit did not adequately address the factual and legal arguments against videoconferencing. Hopefully, a future court will take up the task and give this issue a more serious look.