Judge needles feds over indiscriminate immigration pickups

(CN) — A pair of nonprofits on Friday asked a federal judge to issue a temporary restraining order forcing immigration officials to make sure Oregon detainees have access to attorneys before being transferred to another facility.

U.S. District Judge Ann Aiken did not issue a ruling. But she did suggest that the government, in its zeal to quickly ramp up its deportation machine, had ignored the constitution.

“When you go from picking up a handful of people to picking up thousands of people, the system can’t be left in the same posture,” the Bill Clinton appointee said. “When you’re rapidly collecting non-English speaking people away from their homes and taking them to out of state facilities … how do you avoid violating their right to counsel?”

Clear Clinic, a Portland, Oregon-based pro bono law firm, sued the Department of Homeland Security earlier this month, accusing immigration and customs enforcement agents of blocking detainees from having access to lawyers. They were joined by Pineros y Campesinos Unidos del Noroeste, a nonprofit representing Latino farmworkers and working families.

“Federal agencies have adopted officially sanctioned policies, patterns, and practices designed to achieve quota deportations at all costs — even if that means violating the right to access counsel that is enshrined in the Fifth Amendment to the U.S. Constitution,” the groups wrote in their complaint. “In recent months, Oregonians have been repeatedly denied access to counsel following their immigration arrests. Rapid transfers outside of Oregon, including deportations, have occurred before detained individuals have had any opportunity to obtain or communicate with counsel.”

From Oregon, most detainees are initially sent north to Tacoma, Washington. But they are often quickly transferred again to another state or even another country — maybe even a country the detainee has never been to before.

During a remote hearing on Friday, a Clear Clinic attorney said seeing an attorney in that first day is critical for detainees’ ability to understand their rights, as well as to help authorities make a determination if the detainee is a flight risk or a danger to the community. And yet she said detainees are often moved so quickly that attorneys don’t even have a chance to make contact with the person being held.

“Even at this early stage,” said plaintiff attorney Tess Hellgren, “individuals are pressured into signing things they don’t understand. In some cases, they’re offered financial incentives to accept self-deportation.”

Initially, the plaintiffs had filed a motion for a temporary restraining order, asking the judge to order that detainees in Oregon be held for at least three days.

Attorneys for the Department of Justice argued that was impractical for a number of reasons. In a court filing, they said a land-use agreement for a Portland facility only allows them to detain people for 12 hours. (Nonetheless, in separate lawsuit, Portland says ICE is violating that limit.)

“Because ICE does not have facilities in Oregon to hold detainees for 72 hours or longer and Oregon’s sanctuary laws have prevented ICE from establishing facilities in the state, if Plaintiffs’ injunction is granted, ICE may be forced to immediately release all individuals it apprehends statewide,” the government wrote in its brief. “That poses an intolerable threat.”

Hearing that objection, the plaintiffs revised their request.

They accepted that detainees can be transferred after 12 hours but demanded they be allowed to see a lawyer for at least an hour. On Friday, Department of Justice Attorney Michael Velchik said the request was still highly impractical. Most detention facilities, he said, only have one room suitable for private meetings.

Velchik said detainees don’t have a right to meet with attorneys they haven’t hired. He also wondered aloud if this situation really was an emergency.

“I don’t see the real urgency for emergency relief at this juncture, going into a weekend,” Velchik said.

“There is extreme urgency,” Hellgren retorted later in the hearing. “Every day that goes by, more individuals are being detained, passing through these detention facilities. We are asking for this emergency remedy to be entered as soon as possible.”

Judge Aiken praised the plaintiffs for their willingness “to look for a pragmatic solution.”

“When you pick up people in Eugene, nobody knows they’ve been picked up,” she said to Velchik. “They are moved around and end up in Tacoma. Do you understand how this cumulative effect is a concern to this court?”

“Yes,” Velchik admitted. “At a high level, everyone agrees.” He acknowledged the system could use “tweaks” but added, “If there are concerns with access to counsel, maybe the focus should be on Tacoma,” where detainees can be held for a longer time.

Taking the matter under submission, Aiken said she would issue a ruling by the end of the day Monday.

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