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Immigration Law

Access to Counsel: Did ICE Lie to Congress?

Suzanne Monyak, Roll Call, Mar. 22, 2022

"U.S. Immigration and Customs Enforcement claimed in a new report to congressional appropriators about detention that immigrants had “unabated” access to lawyers during the pandemic — though the agency admitted it does not track legal visits or access violations at its facilities. The report, submitted to the House and Senate Homeland Security appropriations subcommittees and obtained by CQ Roll Call, was compiled following a mandate in the fiscal 2021 spending package for the Department of Homeland Security. The order requires ICE to submit a report to the appropriations panels “on overall access for attorneys and detainee representatives to ICE facilities.” Congress in the fiscal 2021 law instructed the agency to include the number of legal visits “denied or not facilitated” as well as how many detention centers do not meet the agency’s standards of communications between immigrants and their lawyers. However, in the report ICE submitted last month to House and Senate appropriators, which covers fiscal 2020, the agency said it “does not track the number of legal visits that were denied or not facilitated and/or the number of facilities that do not meet ICE standards for attorney/client communications.” ... Immigrant advocates and pro bono immigration lawyers expressed shock over ICE’s accounting of how it handled counsel access during the height of the pandemic in 2020. “I know that the agency wants to defend its practices, but I really was surprised at how distorted it is from what I have seen to be the reality of access to counsel,” said Emma Winger, a senior attorney at the American Immigration Council. ... A legislative staffer familiar with the issue, who wasn't authorized to speak publicly, said the ICE report — which arrived about a year past due — also surprised congressional aides and fell short of expectations. The report “feels very disingenuous at this current moment” and further follow-up with ICE is needed to “understand exactly how this report got through,” the staffer said. ... [A]dvocates with the National Immigrant Justice Center, American Immigration Council, Southern Poverty Law Center and American Civil Liberties Union of Southern California sent a rebuttal memo of ICE’s report to congressional appropriators, claiming the agency “omits key facts and blatantly misstates others.” In contrast to ICE’s claims of uninterrupted legal access, the organizations described limited spaces for immigrants to discuss their cases privately and confidentially with their lawyers, unreliable access to video conferencing technology, and difficulty reaching clients who were quarantined or “cohorted” — ICE’s term for segregating populations due to COVID-19 exposure. The organizations claimed lawyers are “routinely” denied requests to visit with their clients. The SPLC documented two dozen examples where legal visits were either denied or not facilitated in fiscal 2020, including four in-person visits and 22 phone and video calls in Georgia and Louisiana centers. Other facilities impose such “cumbersome” requirements for legal visits that they effectively “constitute a blanket denial,” the advocates said in their memo. It notes in some Louisiana detention centers, visits must be scheduled before 3 p.m. the day before, making it impossible for lawyers to schedule last-minute visits on time-sensitive matters. The organizations also disputed the efforts ICE touted to increase remote access for detained immigrants during the pandemic."