U.S. Immigration and Customs Enforcement is restricting access to lawyers for immigrants at its detention centers, leaving them more vulnerable to longer detainment and even deportation, according to an exclusive American Civil Liberties Union report obtained by USA TODAY.
Immigrants detained in civil cases face “monumental barriers in finding and communicating with attorneys,” which renders their right to legal representation “essentially meaningless,” according to the report released Thursday.
The ACLU study, “No Fighting Chance: ICE’s Denial of Access to Counsel in U.S. Immigration Detention Centers,” found hurdles to effective legal representation. They include: inadequate access to phone and video conference lines; lack of email and other electronic messaging; barriers to in-person attorney visits; and delayed mail.
The cost of impeding contact between lawyers and immigrants, who have the right to representation in civil immigration proceedings, is steep, said Aditi Shah, who wrote the report with ACLU colleague Eunice Cho.
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“Barriers to access to counsel increase the likelihood of prolonged detention and deportation, which not only is in violation of detained immigrants’ rights but it heightens the risk that they will face serious, avoidable injuries or even death while they’re detained or after deportation,” Shah said.
People have the right to legal representation in civil immigration proceedings, but they must pay for it or find a lawyer who will perform the service without charge since it is not paid for by the government. Nearly four out of five detained immigrants don’t have counsel, the report says.
Legal representation makes a tremendous difference since immigrants who have lawyers are 10 times more likely to win their civil cases, according to a study cited in the report.
Belor Mbema Mapudi Ngoma, who is at the Krome North Service Processing Center in Florida and has been in civil immigrant detention since July 2020, is trying to reopen a case in which he was ordered deported in October, but said he was finding it difficult to reach legal organizations willing to provide free services.
Mapudi Ngoma relies on a list of phone numbers of legal services posted at the detention center but said some numbers aren’t working and he can’t leave messages with some organizations because they require push-button access to voicemail or other services that he said aren’t available via the detention center phone.
As with many of those detained, the Democratic Republic of Congo native, who is representing himself in his immigration case, cannot afford to pay a lawyer and tries to call daily to find one that offers pro bono services from the options listed at the center.
“I think ICE should do a better job of getting us access to a lawyer,” Mapudi Ngoma said in a recorded and monitored call Wednesday. He said he feels “anxious, stressed, depressed” and misses his two American-born children, whose mother died in 2017.
The ACLU report, which the civil liberties organization says is the first comprehensive review of legal access for immigrants in detention, was researched in late 2021 and examines legal access at 173 out of 192 ICE facilities around the country. It also includes survey responses from 89 immigration lawyers and legal representatives on their experiences representing clients at 58 detention centers.
ICE and the Department of Homeland Security, which oversees the agency, did not immediately respond this week to USA TODAY’s request for comment.
Lack of privacy and confidentiality for attorney-client phone conversations is a problem, said Naveen Flores-Dixit, a lawyer with American Gateways, a non-profit that provides legal services to the low-income immigrant community in Texas. He cited the case of a client whose immigration case included the claim that he would be endangered by MS-13, an international gang, in his home country.
“I’ve had one client tell me, ‘I was going to call you at (a scheduled) time, but I thought an MS-13 member was using the (next) phone, so I didn’t feel comfortable talking to you about my case,'” Flores-Dixit said, recalling the client’s predicament.
Similarly, LGBTQ clients who feel endangered in their home countries due to their sexual orientation or gender identity are reluctant to discuss details that may be pertinent to a legal case without privacy.
“If they’re doing this on a phone with all of their dorm mates around, it can make them feel very uncomfortable, especially if there are sensitive issues,” Flores-Dixit said.
A more technical problem is that “a lot of times, the phones are of very poor quality. You can’t hear the client,” he said.
If a miscommunication requires an in-person visit, it can eat up half a work day and take time away from representing other needy clients, he said.
Delayed mail and lack of access to electronic communications for document signing can cause difficulties meeting court deadlines, said Lisa Chun, senior attorney with the National Immigrant Justice Center’s detention team.
Chun said she and her colleagues have been fortunate in their dealings with immigration judges who understand such challenges, but “it’s up to the discretion of the judge. The judge could easily say, ‘Too bad. A deadline is a deadline.'”
Even if the judge grants an extension, the delay means a person’s detention time increases, she said. “That’s a problem.”
The top recommendation in the report, seconded by the lawyers interviewed, calls for immigrants awaiting adjudication of asylum claims, deportation efforts and other civil proceedings to be placed under the supervision of community-based social service programs and not in detention centers, which would also make it easier for them to obtain effective legal representation.
An American Immigration Council analysis of government data from 2008 to 2018 found that 83% of non-detained immigrants – and 96% of those who had lawyers – attended all of their court hearings.
The ACLU also demanded that DHS and Congress make sure access to counsel is available at all ICE detention facilities; provide confidential, unmonitored phone and video conference lines; permit legal calls with attorneys at pre-arranged times; and ensure timely, confidential and free access to legal documents and paperwork.
Shah said ICE has shown a lack of transparency and oversight on the issue of legal access and that the wide-ranging infringements to effective counsel show the severity of the problem. Protocols can vary by detention center and some have practices that go against ICE’s own standards, she said.
“It’s really not so much about assessing what each individual barrier looks like, whether it’s phone calls or in-person visits or legal mail, but rather the big-picture fact that at a lot of facilities it’s not just one of these methods that are severely broken, but rather many,” she said.