DHS Sued: Attorneys Fight Back Against Agency’s Unconstitutional Restriction of Immigrants’ Right to Legal Counsel in Detention Centers

MONTGOMERY, Ala. – Immigration and criminal justice reform attorneys at the Southern Poverty Law Center (SPLC) today filed a motion for a temporary restraining order (TRO) in their lawsuit challenging the Department of Homeland Security’s (DHS) unlawful denial of detained immigrants’ constitutional right to sufficient and reliable legal counsel. 

Attorneys with the SPLC’s Southeast Immigrant Freedom Initiative (SIFI) representing individuals detained at four remote Immigration and Customs Enforcement (ICE) detention centers in the Southeast have found the COVID-19 crisis to compound existing representation barriers and unlawful practices. Detention centers have failed to make accommodations to ensure safe, constitutionally sufficient and reliable access to counsel. 

“DHS and ICE have sought to normalize restricted access to counsel in their detention camps, and they’ve shamelessly used the pandemic as cover to deepen and solidify these failures,” said Jared Davidson, a senior staff attorney with the SPLC's Criminal Justice Reform practice group. “Now more than ever, people in detention need access to their lawyers, both to fight their removal cases and to seek release from prisons where COVID-19 is already spreading,” continued Davidson. “ICE needlessly imprisons thousands of immigrants, and we will not tolerate its efforts to compound this injustice by denying them access to counsel while they’re forced to settle their civil immigration matters from behind bars.”

“Throughout the pandemic, communication with people inside the detention centers has become more urgent and more difficult,” said Erin Argueta, a SIFI lead attorney at the program’s Lumpkin, GA field office that provides pro bono representation to people detained at Stewart Detention Center. “We need to hear from people to get updates on their health and their cases, and we face obstacles as the detention center’s first response to peaceful protests is to cut access to phones.”
 
According to the SPLC attorneys, there are a number of common-sense accommodations that DHS and ICE could quickly adopt to ensure constitutionally sufficient access to counsel, including increasing the number of video tele-conferencing (VTC) consoles and mandating ICE sanitize the shared telephone and VTC rooms and provide detained individuals with personal protective equipment (PPE) to ensure that they can communicate with counsel without risking exposure to the virus.

While non-detained immigration courts have halted proceedings, detained courts remain open as many cases move quicker than ever amid the administration’s aggressive removal policy. Restrictions on access to counsel are a key component of the Trump administration's anti-immigrant agenda in which legal barriers at remote and hard to reach ICE prisons serve to speed up the national deportation machine. 

Underscoring the urgency of representation needs, Argueta noted, “Detained cases are going forward even more quickly than normal. At the same time that we are adjusting to a slower pace of being able to communicate with our clients and collect their documents, they are being granted less time – as little as two weeks – to prepare their applications for relief and hand them in to the judges.”

According to the lawsuit, already inadequate access has further diminished in places where access to legal resources and immigration attorneys are already sparse. ICE has limited in-person access to counsel, required attorneys to provide their own PPE despite the near impossibility of procuring PPE in the rural South, failed to provide PPE to detained individuals and neglected to adequately clean and disinfect visitation rooms between visits. Detention centers have failed to implement procedures to expand capacity for remote legal visitation through telephone and VTC or to facilitate the exchange of documents electronically. 

The TRO describes how inadequate safeguards at ICE facilities have exposed detained individuals to the virus every time they leave their cells for VTC calls. Throughout April, when SIFI staff saw clients through VTC calls, most would not be wearing masks. One SIFI attorney has never seen any of his clients at Irwin County Detention Center wear gloves during their VTC calls. At Stewart Detention Center, one client was never provided gloves but found a pair of gloves that an officer had discarded and put them on for his own safety. 

Detained immigrants facing the risks of being trapped inside prisons that are now COVID-19 hotspots are desperate to speak with attorneys about their cases, the need to litigate to improve conditions inside and the possibility of release through habeas proceedings or other means. According to a 2016 SPLC report, detained immigrants with access to lawyers were 10.5 times more likely to win their cases, compared to those without a lawyer. Meanwhile, individuals with lawyers were almost seven times more likely to be released from detention centers than those who did not have the help of a lawyer. 

The lawsuit was first filed in 2018 after SPLC attorneys found that DHS violated the Constitution by blocking immigrants in isolated civil immigration prisons from accessing lawyers. The federal lawsuit highlights the agency’s decades-long, widespread violations of detained immigrants’ rightful access to counsel in multiple ICE prisons throughout the Southeast. 

According to the lawsuit, ICE detention centers have maintained policies and practices that prevent detained individuals from meaningfully accessing and communicating with legal counsel, preventing the SPLC from effectively representing them. It also outlines how the defendants’ conduct violated the SPLC’s First Amendment right to represent civilly detained individuals. 

The suit describes the hostile and obstructive conduct toward legal representation at detention centers. Before the pandemic, SPLC attorneys and volunteers were frequently forced to wait often as long as two or three hours to see a single client and were sometimes blocked from seeing their clients altogether. 

Now, pre-existing barriers to vital access to VTC – the more effective means of attorney-client communication compared to telephone – have worsened as the pandemic has progressed. Over the past month, SIFI has experienced scheduling delays at every step of the process: delays in receiving a response to a VTC request, delays between the date requested and the date made available and delays on the day of the appointment. 

SPLC attorneys believe they are likely to succeed on the merits of their claims that DHS is violating its clients’ Fifth Amendment rights to access counsel and to substantive due process. These constitutional violations, the attorneys argue, constitute irreparable harm, particularly now as clients without access to counsel can neither adequately fight their removal cases from detention nor seek release from detention to avoid COVID-19 infection. 

The memo in support of the TRO can be read in full here and more information and filings from the suit can be found here.