Photo: ICE via Wikimedia Commons

Detainees in the custody of Immigration and Customs Enforcement are being denied their due-process and statutory rights by being forced to appear at immigration court hearings via video conference rather than in-person, a new federal lawsuit claims.

The plaintiffs—a coalition of public defenders and individual detainees—claim ICE halted its regular practice of delivering inmates in person in June. At the time, the agency claimed it was due to public safety concerns related to a small group of protesters outside the Varick Street immigration facility, according to reports.

However, despite the end of the protests in the summer, the policy of relying on video conference rather than presenting detainees physically at their hearings has remained in effect, the lawsuit filed in the U.S. District Court for the Southern District of New York claims.

“First it was public safety; then it was cost effectiveness; then it was part of a nationwide plan to streamline immigration proceedings; then it was public safety again,” the plaintiffs allege. “Defendants' shifting justifications are pretext for their real, illegitimate motivation: the government's nationwide effort to expedite deportations at the expense of due process.”

Detainees claim hundreds of immigrants in ICE's custody are unable to fully and fairly participate in their own hearings because of the video conference policy, according to Andrea Saenz, attorney-in-charge of the New York Immigrant Family Unity Project at Brooklyn Defender Services, one of the defenders organizations party to the suit.

“This policy is not just a small administrative change—it goes to the heart of whether our clients will get a fair day in court to contest their deportation, Saenz said in a statement. “We, as a society, owe due process to people facing such enormous consequences—not to lock them up and show them a TV screen where they cannot properly hear the judge, speak to their lawyers, or see their loved ones in-person.”

Brooklyn Defender Services were joined by the other members of the Immigration Family Unity Project in the suit, The Legal Aid Society and The Bronx Defenders.

According to the complaint, ICE relies on a provision of the Immigration and Nationality Act that gives Department of Justice-employed immigration judges the discretion to conduct proceedings through video conference. However, the plaintiffs argue, the decision by the U.S. Court of Appeals for the Second Circuit in 2008's Aslam v. Mukasey requires proceedings that use video conference to ensure due process rights are being afforded.

This, the plaintiffs allege, is not being honored by ICE—despite allegedly producing an internal report in 2017 that warned video conferencing should be limited to procedural matters because such appearances may lead to due process issues.

The country jails holding immigration detainees in New York's Hudson Valley or in Bergen County, New Jersey, are not equipped to handle the increased demand for video conferencing from the Manhattan immigration court, the suit claims. When detainees do have access to video feeds, they regularly face technical glitches that can make seeing and hearing what's going on in their case difficult. Often, ICE officers are present in the video conferencing room, which has a chilling effect on detainees' willingness to provide sensitive information for their case, according to the complaint.

As such, the plaintiffs claim ICE's policies have had a direct impact on what the Immigrant Family Unity Project called the immense success of its efforts to represent detained immigrants. The program—the first of its kind in the nation to provide counsel to immigrant detainees unable to afford private attorneys—claims to have increased the rate of successful outcomes for these clients by 1,100 percent since 2013. Attorneys with the organization now represent more than a full third of the immigrants with proceedings on the Varick Street court's docket.

The plaintiffs are represented by a joint legal team from Debevoise & Plimpton, led by partner Susan Reagan Gittes, and Wilmer Cutler Pickering Hale and Dorr, with partner Robert Gunther, Jr. at the helm.

A spokeswoman for ICE did not respond to a request for comment on the suit and its allegations.

RELATED:

Arrests by ICE at Courthouses Should Be Illegal Without Warrant From Federal Judge

Federal Judge Blocks Trump Attempt to Withhold Funds From 'Sanctuary' Jurisdictions

ICE Hit With Proposed Class Action Over Lengthy Detention Spells for Immigrants