Andy Gene Strickland – Right to an Attorney
The US Constitution and the Immigration and Nationality Act clearly provide the right for a non-citizen who is detained the right to counsel without expense to the government.
Recently a study was conducted that found:
At over 40, or 20 percent, of the detention facilities called by our researchers in our study, no one ever picked up the phone or operators refused to answer basic questions about attorney access. This took place even after multiple calls during regular business hours to the facility phone number made publicly available by ICE or the facility itself.
At least 58 ICE detention facilities do not allow attorneys to schedule phone calls with a detained client at a certain date and time when the facility will make the detained client available for the call, preventing both routine and time sensitive communications necessary to representation.
Moreover, the ability to schedule an attorney-client call in detention does not guarantee that it will take place: At ICE detention facilities where attorneys reported they can schedule calls with detained clients, survey respondents reported that scheduled calls were not consistently honored at almost half (approximately 46 percent) of the identified facilities.
•Failure to Ensure Access to Legal Telephone Calls. Our study found pervasive issues with access to legal telephone calls in ICE detention:
• Legal calls are prohibitively expensive for detained immigrants. With only limited exceptions, detained immigrants must pay to make outgoing phone calls to counsel at the majority—approximately 85 percent—of the detention facilities for which we received responses.
At some facilities, detained immigrants are charged $0.21 per minute, and sometimes up to $0.40 per minute. These rates are especially burdensome given that many detained immigrants are indigent and the only opportunity to earn money is the “Voluntary Work Program,” where detained people earn $1 per day performing work to maintain the detention facility.
• Attorney calls with detained clients are plagued by poor-quality audio. Attorney surveys for over half of the 58 facilities for which we received responses reported experiencing poor audio quality on legal
calls with detained clients.
•Failure to Provide Access to Legal Video Teleconferencing. It is unclear how many ICE detention facilities actually provide legal video teleconferencing (such as by Zoom or Skype). Of the 68 detention facilities that reported availability of legal videoconferencing, only 12 of these facilities had information available on ICE’s website. Moreover, of those 68 facilities, we were unable to verify the existence of legal videoconferencing at 23 of those facilities, and ICE’s website had no information at all about 33 of those facilities.
Notably, four of the facilities that ICE has designated as having Virtual Attorney Visitation programs were unaware of the existence of the program upon inquiry by phone. Immigrants must pay to make outgoing phone calls to counsel at approximately 85 percent of surveyed detention facilities
•Unreasonable Barriers to Establishing Contact with Clients. Approximately 68 percent (38 of 56) of the facilities for which we received a response for this question have required attorneys at some point to provide an alien number (A-Number) to communicate with detained immigrants, even though ICE’s detention standards clearly state that detention facilities may not require legal service providers to submit a detainee’s A-Number as a condition of visitation.
This condition is problematic because attorneys who contact a client or potential client for the first time are not likely to know the individual’s A-Number.
•Delays in Legal Mail. Attorneys reported that at 11 facilities delayed deliveries of legal mail had caused them to continuously request extensions for deadlines from the court, to miss key filing deadlines, or that they had observed pro se detained immigrants missing deadlines because of difficulties with the mail system.
• No Email or Electronic Messaging Available. Very few ICE detention facilities provide any sort of electronic mail or messaging access to detained people. Of the 173 facilities for which we
have information,19 fewer than one in four (24.3 percent) facilities provided some sort of electronic
mail or messaging access to detained people.
Where electronic mail or messaging is available, it is run by private prison corporations, may be prohibitively expensive, and is not confidential.
• No In-Person Legal Visits. Eleven ICE detention facilities reported that they do not allow any in-person legal visits at all, despite ICE’s claim that “in-person contact visits remain available at the
request of the legal representative” in light of the COVID-19 pandemic.
Although nine facilities reported suspending in-person legal visits because of the pandemic, two did not and merely stated that in-person visits were not allowed or had been “suspended indefinitely.”
•Arbitrary Delays or Denials for In-Person Legal Visits. Attorneys at nearly half (20 out of
42) of facilities for which we received attorney survey responses on this question reported
arbitrary delays or denial of access to their clients at the facility.
In-person client visits were denied or delayed because of failures by facility employees to accurately keep track of detain clients, inadequate staffing, or arbitrary and shifting attorney dress codes. Moreover, at several facilities, pandemic-related quarantine procedures prevented attorneys from being able to visit their clients.
•Lack of Contact Visits. Over a third of facilities do not allow for “contact” visits or have any in-person visits between attorneys and detained clients. Contact visits are important to ensure
clear communication, to support language interpretation, and are the preferred method of in person legal visitation.
•Lack of Confidential Settings for In-Person Legal Visits. Attorney respondents at several facilities reported that in-person visits do not take place in confidential settings, impeding clients’ ability to share sensitive details important to their cases and destroying the attorney-client privilege.
•Prohibitions on Computers and Phones for Legal Visits. About half (56 percent) of ICE detention facilities for which we could gather information allow attorneys to bring laptops for legal visits; only 21 percent of ICE detention facilities for which we have information allow attorneys to bring cellphones into legal visits.
Andy Gene Strickland agrees that these are problems that can be corrected with aggressive lawyering. Get help now!
Contact: St. Petersburg Immigration Lawyer