Government agencies should stop using tweets as a replacement for issuing clear policy guidance, even in emergency situations.
It’s time we talk about the EOIR’s Twitter account. It might seem odd to devote an entire post to this topic, but let me start by explaining why I think it is important.
The Executive Office for Immigration Review (the agency responsible for the US immigration court system) may believe that it is being proactive by posting information on social media to supplement official statements, as it has during the pandemic. But when the EOIR uses Twitter as a replacement for official statements on websites it owns and controls, it sows confusion, avoids taking responsibility, and prevents the public from holding the agency accountable to a clear record.
As I mentioned, the EOIR is responsible for overseeing the nation’s immigration court system. Immigration judges that work for the EOIR decide whether noncitizens in the US will be allowed to stay in the country legally or receive deportation orders. And with more than 1.5 million cases now pending in the courts, these immigration hearings affect a lot of people’s lives. Moreover, there are significant demands on immigration attorneys and their clients to respond to the court’s changes in schedules, policies that are constantly in flux, and, with the pandemic, the cycle of court shutdowns and reopenings that have caused considerable confusion over the past two years.
In short, clear, accurate, and consistent communication is a big deal. Or at least it should be.
In reality, what I have seen over the past two years is an increasingly, shall we say, “casual” approach to communication by the EOIR that replaces clarity and responsibility with flippant and noncommital messaging.
Let’s take only the most recent example, the one that prompted me to revisit my concerns about the use of social media among immigration agencies, and finally write this post. Yesterday, the @DOJ_EOIR account announced that attorneys and their clients do not need to be in the same location for virtual court hearings.
For context, the immigration courts have long permitted attorneys and clients to appear in court remotely, particularly for short procedural hearings, but often the judge will require the client to be in the same room as the attorney. The above announcement appears to provide further flexibility during the heightened risk due to the Omicron covid variant — generally speaking, a good thing.
However, it has also been a matter of longstanding tension between attorneys and judges that judges have the discretion to grant or deny requests for virtual court appearances. Many attorneys, for instance, have told me that they must balance (a) not upsetting a judge by arguing a point too strongly with (b) the possibility that a judge may unilaterally revoke their ability to appear in court over the phone. Given the distances that many attorneys and clients must travel to court for a simple 15-minute hearing combined with the corresponding financial costs and now risks to covid infection, the ability to appear in court virtually is something that attorneys value.
Hopefully, you can see that this point about attorneys being able to appear in court virtually with the clients — much less allow their clients to be in a different physical location than the attorney — is no small matter. And it’s not at all the case that judges are inclined to grant telephonic hearings as a rule.
Now back to the EOIR’s tweet. Although some attorneys were grateful that the EOIR clarified the position of the agency on virtual court appearances, others noted that the EOIR did not issue a press release, policy memo, or other guidance that would have given attorneys the ammunition needed to push back against judges who refused to comply with the EOIR’s position. Indeed, without such a document, it’s unclear whether this tweet actually constitutes an official policy position in force or simply a general suggestion. Indeed, one attorney asked (somewhat into the void of Twitter, since EOIR did not respond), whether they should now submit a screenshot of this tweet to the court as evidence.
The question of the officialness of tweets was also an issue during the Trump administration when Trump’s prolific use of Twitter raised questions about whether his tweets were official statements or the statements of a private citizen. Press Secretary Sean Spicer and the Department of Justice both viewed Trump’s tweets as official statements by the President of the United States, and chaos ensured. Nonetheless, it seems to me that this is hardly a settled area of law and I would be very curious to know if anyone does use EOIR’s tweets to support motions in immigration court.
I responded to the agency’s tweet by asking the agency to post a link to supporting documentation of this new position. I received no response. I also checked the EOIR website for documentation myself and this is where things got a little more concerning.
The EOIR has only posted seven announcements on its “News and Information” page since January 2021 (none in the past three months) and 29 notices on the “More Information” page over the same time period. By contrast, after downloading the EOIR’s most recent 3,000 tweets, I found that the EOIR Twitter account has already tweeted 22 times in January 2022 alone and 486 times since January 2021. If the EOIR is spending more energy on its social media account than providing the courts, practitioners, and respondents with meaningful guidance, then I think we have a problem.
The EOIR’s use of Twitter during the (ongoing) pandemic was (and is) particularly problematic. The agency used Twitter to announce court closures in high covid areas or due to covid exposures inside the court. However, more than a few times, the EOIR announced court closures well after the start of the workday, leaving clients and attorneys waiting for hearings that would not happen. At one point, the American Immigration Lawyers Association (AILA) had to spend its own resources to aggregate these announcements into an operational status tracker combined with feedback from its membership about which courts were closed and for how long. (The EOIR did create a court status tracker, but I believe it was released later.)
Now — you may think, “Great! This is an example of the government keeping up with the times.” Perhaps. But the criticism I heard at the time was that there was no good public health reason for many of these hearings to have gone forward in person in the first place, so the last-minute closures-by-tweet did more damage than a coherent, systematic response would have. In the middle of a pandemic, many argued, attorneys and clients should be able to appear remotely, or cases should have been postponed — as an official rule, not as a half-baked tweet that doesn’t appear to carry any real weight. Indeed, the EOIR’s ongoing expectation for attorneys to appear in person in detained courts during the pandemic prompted at least one lawsuit.
The EOIR isn’t the only government agency that has created problems by using social media rather than more official channels to respond to crises. Kalev Leetaru wrote a terrific article in Forbes about the problems with many federal, state, and local agencies using Twitter, particularly for communicating information during an emergency or a crisis. In his article, he argues that using social media during an emergency situation may improve the speed and dissemination of crucial information. But it often comes at the expense of official announcements on their websites or other outlets, which means that agencies are not creating an official paper trail. Moreover, and this is a rather obvious yet still significant point, it also means that to get the announcements, the public must be online, logged into the (private) social media platform that the agency is using, and constantly checking the agency’s account for new information.
Leetaru finds lasting effects, too. Once agencies get comfortable putting alerts out on Twitter, they often retire the practice of putting out official press releases and statements and instead use their Twitter feed as a kind of repository of announcements. Leetaru doesn’t raise this explicitly, but transparency groups should be concerned about how the use of social media is changing the public’s ability to FOIA for documentation related to these policy statements issued by tweet.
Let me wrap this post up. I think this is how we should read the situation: Twitter allows the EOIR — and government agencies more generally — to quickly issue and disseminate information, particularly in times of crisis, but the modality of quick, short announcements appears to be supplanting a more thoughtful, thorough, and coordinated approach to public communications which may actually be more effective in times of crisis and better correspond to the ideals of democratic governance.
In response, I would like to see a real push for the EOIR (and other federal agencies) to stop using the convenience of Twitter as an excuse for a lack of authentic leadership and clear communication.