When detained immigrants are able to access legal help and gain representation, they are up to 10 times more likely to be able to stay in the U.S., the Vera Institute of Justice said earlier this year. “Lawyers make a big difference.” Maybe that’s one reason why Immigration and Customs Enforcement (ICE) officials have consistently set up roadblocks that make just trying to get a lawyer on the phone outright impossible.
“As described in a letter sent today by the American Immigration Council, the ACLU, and 88 legal service provider organizations to Department of Homeland Security Secretary Alejandro Mayorkas, ICE detention facilities have systematically restricted the most basic modes of communication that detained people need to connect with their lawyers and the rest of the outside world, including phones, mail, and email access,” American Immigration Council staff attorney Emma Winger and ACLU National Prison Project senior staff attorney Eunice Cho write in a post.
Like previously noted, unlike in the criminal court system, immigrants in the immigration court system are not guaranteed an attorney if they can’t afford one. But let’s say a detained immigrant does get pro-bono help (there are many great organizations working to do just that). “Even when attorneys are available and willing to represent detained people, ICE detention facilities make it prohibitively difficult for lawyers to communicate with their detained clients, refusing to make even the most basic of accommodations,” Winger and Cho write. “For example, many ICE facilities routinely refuse to allow attorneys to schedule calls with their clients.”
We already saw a form of this play out amid the novel coronavirus pandemic, when ICE officials told attorneys they had to wear face masks and other protective gear to visit their detained clients. Right now, that doesn’t sound out of the question. But officials said this in March 2020, when the nation was facing major protective gear shortages. When attorneys were actually able to get protective gear, ICE blocked them from seeing their clients anyway. Officials claimed it was a safety measure. Hilarious, considering how the agency’s refusal to allow detained immigrants to shelter at home worsened the national caseload by the hundreds of thousands.
“Immigration law is a highly technical, complex area of law, which federal courts themselves have observed can confuse even experienced lawyers,” the organizations tell the Biden administration in their letter. But Winger and Cho note that ICE facilities often cut short the calls they do allow, “leaving legal providers like the Florence Immigrant and Refugee Rights Project in Arizona unable to complete intakes for potential clients in complex immigration cases in less than 20 minutes.”
Again, that’s if they can even schedule a call in the first place. The letter notes that at Boone County Jail in Kentucky, “a faulty fax machine” is the only mechanism to request calls or visits. Just this past summer, ICE was forced under court order to restore a free legal hotline it shut down after it was featured on the Emmy-winning Netflix series Orange Is the New Black. “ICE has tried again and again to silence and censor anyone who speaks out against its abusive immigration detention system,” Freedom for Immigrants deputy executive director Layla Razavi said at the time.
”The Biden administration has made access to legal representation and access to justice a priority,” the letter continues. Last month, for example, the administration announced a significant initiative expanding legal representation to asylum-seeking children (they aren’t guaranteed legal help either). “Despite this commitment, the Department of Homeland Security (DHS) maintains a network of immigration detention facilities where people are routinely denied access to counsel and are prevented from effectively representing themselves,” the letter continued.
The organizations make a number of key recommendations, notably ensuring “private, confidential, free video conferencing for legal visits to all people in immigration detention,” “timely access to private, confidential, free legal phone calls of unlimited duration and adequate quality,” and “meaningful access to private, confidential in-person visitation with legal representatives.” Of course, it’s better that immigrants just not be locked up in the first place. Immigration detention is civil detention, and “the data show that most undocumented people show up for court,” the ACLU noted last year. “Detention is not necessary, nor is it a humane or acceptable de facto response.”
“Immigration detention is inhumane, and it is a key barrier to access to justice,” Winger and Cho concluded. You can read their full post here, and the full letter from the organizations to the Biden administration here. “But so long as people are detained, ICE must ensure that detention facilities provide immigrants with timely access to counsel.”
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