Legal service groups that represent detained migrants have sued U.S. Immigration and Customs Enforcement, alleging the agency prevents lawyers and their clients in four detention facilities from speaking regularly and confidentially.
“Defendants have systematically failed to ensure compliance with constitutional requirements, federal law, and ICE’s own policies regarding access to counsel,” according to the lawsuit filed in mid-October.
Five legal groups accused ICE and the Department of Homeland Security of harming detainees’ immigration cases by not offering regular and reliable avenues of communication between detainees and lawyers. The lawsuit also names Homeland Security Secretary Alejandro Mayorkas and ICE Acting Director Tae D. Johnson as defendants.
The groups allege in the suit that ICE and DHS don’t give enough access to confidential video calls and private in-person communication. They also contend the agencies restrict phone call access and the exchange of legal documents, and that detainees with disabilities are not offered reasonable access to counsel accommodations.
ICE told the Miami Herald that it “will not comment on ongoing or pending litigation,” which involves the Krome Detention Center in Florida, the Florence Correctional Center in Arizona, the Laredo Processing Center in Texas and the River Correctional Center in Louisiana. The case, filed in Washington federal court, has been assigned to a judge.
Andrea Jacoski, director of the detention program at the Miami-based Americans for Immigrant Justice, one of the legal groups filing the lawsuit, said the legal service providers are asking for “simple” things like being able to hold confidential video calls, schedule phone calls with clients and to bring their laptops into the facilities when meeting clients.
“It’s pretty clear in my day-to-day practice that when we can’t talk to our clients regularly, it’s harmful,” she said, “Regular contact with clients is critical. Not only for their cases, but for developing relationships and rapport with clients and being able to build trust so we can really represent them in their immigration cases.”
Lawyers say detainees already face several hurdles to access representation, including often being in isolated rural areas that are far away from support systems. Krome is on the edge of the Everglades.
“A lot of lawyers feel discouraged from taking these cases because they are a lot of work. ... These cases run so fast, there could be two weeks between master calendar hearings. It’s very difficult to reliably communicate with clients. So, people oftentimes feel they have to go visit the client, which can be a whole-day ordeal,” she said.
And when the coronavirus pandemic began in March 2020, lawyers reported that visiting detained clients became more challenging. A February 2022 Homeland Security report recognized that COVID-19 “posed challenges to ensuring noncitizens access to counsel.” However, it described detainee access to lawyers in the age of coronavirus as “unabated.”
The agency’s COVID-19 pandemic response requirements say that “legal visitation will be permitted unless and until it is determined to pose a risk to the safety and security of the facility.” The COVID requirements also mandate that the agency “will continue to ensure that remote communication with legal representatives continues unimpeded via access” to phones, teleconference, and video calls.
The Virtual Attorney Visitation program, which allows for private and confidential video calls between detainees and their lawyers, is available in some facilities, including the Broward Transitional Center in Pompano Beach, Florida.
However, the ICE list of facilities where the Virtual Attorney Visitation program is available does not include the Krome Detention Center. Detainees there use a video call and messaging platform called Gettingout, but its terms of use acknowledges that only preapproved attorney-client video and phone calls are privileged, and that all other communications can be recorded and accessed.
“We’ve seen at other facilities, ICE is able to set up private video communication,” said Jacoski. “It’s not outside the realm of possibility.”
Detainees also have access to law libraries where they can research their cases and free hot lines to call legal service organizations and receive orientation.
At Krome, the lawsuit said there are not enough visitation rooms and no confidential video calls or mechanisms for lawyers to set up client calls. The paid phone lines can be recorded and costly, while the government’s free hot line to call lawyers is difficult to use, the plaintiffs said.
Jacoski said other detainees and staff can easily overhear calls at Krome, and there aren’t always enough phones to meet demand. She told the Herald that sometimes detainees will agree to speak with lawyers at a certain time but won’t be able to until hours later or the next day.
“If what we are asking for actually becomes true, it will make our ability to represent people so much stronger,” she said. “It will fundamentally change how we practice.”
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