Being a haven for immigrants fleeing persecution and injustice shall be a proud hallmark of our country. Yet immigrants are forced to run the gauntlet of our obscure immigration law system to defend their right to stay.
Even asylum seekers, whose rights are enshrined in both international and US law, face an uphill battle. The immigrant is consistently burdened with the burden of navigating a legal system with which he is unfamiliar, in a language he may not yet speak. During this process, many immigrants are taken to immigration detention centers where they are all but cut off from the world, including their lawyers.
Fighting deportation is a Herculean task by any means, but as our new lawsuit demonstrates, the plight of immigrants in detention is Kafkaesque, especially for those who don’t have access to their lawyer. For thousands of immigrants, this life-or-death decision, whether to be returned to a country where they fear persecution or to be separated from their family and community, depends each year on whether they have a lawyer to represent them represents. Migrants in detention centers are more than 10.5 times more likely to succeed in their cases if they can find a lawyer to represent them.
But our government has made it almost impossible for immigrants in detention to communicate with their lawyer, if they manage to get one at all. We almost uniformly place our detention centers in rural areas, far from lawyers, family members, translators, social workers or anyone else who might offer assistance. Unlike in criminal proceedings, immigrants are not provided with a lawyer – they must hire and pay one or find a pro bono lawyer or organization to represent them. For detained immigrants, they must do so from a detention facility. As our new lawsuit details, in many facilities we have made it virtually impossible for immigrants to seek representation or for attorneys to gain adequate access to their clients to provide competent counsel.
Despite the requirements of the US Constitution and the immigration and customs enforcement agencies’ own standards, some immigration detention centers lack private meeting rooms where attorneys can meet with their clients. When lawyers can visit their clients, they often have to do so in public areas in front of guards and other inmates. Attorneys cannot use their laptops to take notes or create or edit client statements.
No interpreters are provided and in some cases entry restrictions are so cumbersome that lawyers cannot realistically bring their own interpreter into detention facilities. Mobile phones are not allowed, so lawyers cannot call an interpreter either to facilitate this.
Video conferencing, which has become ubiquitous to all of us during the COVID-19 pandemic, is either completely or virtually unavailable in immigration detention centers.
Telephone access is so restricted that in many establishments it is almost impossible for an immigrant to communicate with his lawyer. In at least 58 immigrant detention centers, lawyers have no way of arranging meetings with their clients, so they have to leave a message and wait for a supervised callback at the immigrants’ expense. Telephone calls that require an interpreter to be on the line are particularly difficult to coordinate in detention pending deportation, despite the three-way conference functionality on every smartphone.
Some facilities limit calls with lawyers to just 10 minutes, and the only phones available are often right next to the guard’s desk in a noisy public area with no possibility of confidentiality. The consequences are real – migrants, forced to share the details of the persecution they endured before coming to the United States, are reluctant to share those personal and traumatic details publicly.
The US Constitution protects the right of persons in immigration detention to retain, consult with, and have access to legal counsel. The Department of Homeland Security has minimal oversight of these facilities and recently admitted that it does not track how many facilities fail to meet its own low standards for attorney-client communication, let alone the enhanced requirements of the Constitution.
These failures cost lives and divide families as people with legitimate claims are denied compensation. Many of these people are fleeing some of the world’s worst acts of violence and are being sent back into life-threatening situations. The Biden administration has the ability, the obligation and the opportunity to remedy.
Kate Melloy Goettel is the Legal Director and Alexandra Miller is the Director of the Immigrant Justice Campaign at the American Immigration Council. You wrote this column for the Dallas Morning News.
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