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Feds accused of cutting off migrant access to attorneys

In a major case filed in the nation’s capital, civil rights groups say they've struggled to stay connected with clients in immigration lockup.

(CN) — As a legal director at the immigrant rights group RAICES, Javier Hidalgo used to help provide free legal aid to migrants at the Laredo Processing Center in Texas.

RAICES – short for the Refugee and Immigrant Center for Education and Legal Services - stopped doing so in April, after Hidalgo said detention center policies made it too hard for the group to work there.

Even though the center is hours away from the RAICES offices in San Antonio, it doesn’t offer migrants a reliable or secure way to meet with attorneys remotely. Detainees had to call from public pay phones. When lawyers sent legal mail to clients, guards allegedly opened and screened the letters when they were clearly marked confidential.

Even when attorneys did make it to Laredo, they still faced other obstacles. Lawyers couldn’t bring computers or printers into the center and instead had to use pens and paper. They often had to meet with clients in a public area, allowing nearby guards to hear what were supposed to be private legal consultations.

Interpreters also had to be approved by the detention center — a process that could take up to a year.

“We haven’t taken cases there in several months now because of these access issues,” Hidalgo said in an interview. “If these issues clear up, we’d start providing services there again.” Besides the many difficulties in contacting clients, he said, the hours of driving between San Antonio and Laredo had “really started eating into the services we could provide elsewhere."

Concerns like these are the basis of a major new lawsuit over the ability of migrants to access lawyers. Filed in October in a federal court in Washington, D.C., it counts a variety of immigration and civil rights groups, including RAICES, as plaintiffs.

Detained migrants are legally entitled to speak with attorneys — and yet the U.S. immigration system regularly impedes on “basic modes of communication” between migrants and their lawyers, the lawsuit alleges. In the process, the suit accuses U.S. Immigration and Customs Enforcement of violating not just federal law and the U.S. Constitution but also its own policies, including requirements outlined in the agency’s national detention standards.

ICE did not respond to requests for comment. On Friday, lawyers for the agency asked a judge for more time to file a response in court.

At the Laredo Processing Center, run by the private-prison company CoreCivic, the warden did not immediately respond to a request for comment.

In court, attorneys for the migrant rights groups have filed hundreds of pages describing alleged problems with the detention centers. Among them are internal reviews of the centers conducted by ICE, showing the agency was aware of noted “deficiencies."

They also submitted a memo from ICE to Congress this year outlining the agency's responsibility to protect due process. According to that memo, "all noncitizens have the right to be represented by an attorney," and "ICE actively supports access to legal representation."

Emma Winger, an attorney with the nonprofit American Immigration Council, is representing migrants and rights groups in the suit. In an interview, she said officials at ICE and its parent agency, the U.S. Department of Homeland Security, aren’t doing enough to maintain consistent standards.

While ICE protects legal access for migrants “in a piecemeal fashion,” it doesn’t “ensure uniform policies that provide meaningful access to counsel” across all detention centers, Winger said. As a result, lawyers allegedly run into wildly different rules and regulations depending on where their client is detained.

The lawsuit names four facilities, including the Laredo Processing Center. All four erect slightly different barriers for migrants and their lawyers, according to the suit.

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At Laredo, for example, officials allegedly do not provide migrants with reliable telephone access and often offer no way for attorneys to have private in-person meetings with clients. Meanwhile, at the River Correctional Center in north Louisiana, plexiglass barriers in private meeting rooms make it “nearly impossible” for lawyers to “review and/or exchange documents” with clients, the complaint states.

Winger and others stress these problems are hardly unique to the named detention centers. They point to studies like one released this year by the American Civil Liberties Union that found wide-ranging access issues at detention centers across the country.

That review, which looked at most of the 199 publicly disclosed migrant detention centers, found that staff at around 20% of the centers did not answer phone calls during regular business hours or otherwise “refused to answer basic questions about attorney access.” Around 30% of the surveyed centers did not allow for telephone calls between clients and attorneys. The report called on regulators, including the DHS Office of the Inspector General, to investigate facility conditions.

In theory, the ICE detention standards are meant to protect migrant safety and civil rights at detention centers, including those run by companies like CoreCivic. Last updated in 2019, they set minimum standards on everything from security to access to legal materials.

In practice, a 2015 report by the National Immigration Justice Center and the Detention Watch Network accused ICE of running ineffective reviews, breezing through inspections and giving facilities passing marks even when failed mandatory standards.

Federal immigration officials were “complicit in immigration detention abuse," the study noted.

In some cases, according to the suit, lawyers did not even have a reliable way to contact clients. They instead had to ask staff to pass along oral messages to clients. The system was unreliable, and messages didn’t always arrive.

In both interviews and in the lawsuit itself, migrant lawyers compared the conditions in detention centers to those in actual jails or prisons.

In jails and prisons, legal precedents and federal standards protect the legal rights of inmates. Those in immigration lockup “don’t get the same level of protections,” Homero López Jr., legal director with the New Orleans-based migrant rights group ISLA, said in an interview.

Since immigration is technically a civil matter, migrants aren't entitled to free legal representation. They can use lawyers if they can find and afford one — and it can make a big difference for their cases. Migrants with lawyers are more than 10 times more likely than those without to win their immigration cases and almost seven more likely to be released, according to studies cited in the lawsuit.

Still, improving communications with migrants in detention is about more than legal outcomes. The complaint references two detainees — a lesbian couple held at Laredo — who faced “harassment and threats of violence” due their sexual orientation and were not able to quickly flag the problem for their lawyers due to a lack of privacy.

This lawsuit isn’t the first time lawyers have raised alarms about communication difficulties in immigration lockup. In a letter last year to U.S. Secretary of Homeland Security Alejandro Mayorkas, more than 80 legal groups raised concerns about ICE’s “refusal to schedule legal calls with clients” and its “hostile treatment of attorneys at detention centers."

“The immigration system is inherently flawed, unjust and unnecessary,” the letter argued. “The only way to eliminate the barriers to access to justice for people in detention is to release them.”

RAICES was one of the groups that co-signed the letter — and Hidalgo, the RAICES lawyer, agrees with it. Like other lawyers who work with immigration cases, he's come to see the detention system as fundamentally unfair.

Even though immigration is a civil matter, the trappings of the immigration system — from the far-flung locations of detention centers to the lack of legal access — seemed to him intentionally cruel and arbitrary.

“It still kind boggles my mind that this [system] exists in this country and is allowed to exist,” he said.

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