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ICE claims ‘unabated’ legal access in detention during pandemic

Legal groups dispute ICE's report to Congress, outline ongoing concerns

The Metropolitan Detention Center in Los Angeles in 2019.
The Metropolitan Detention Center in Los Angeles in 2019. (David McNew/Getty Images)

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.”

Still, the report claimed ICE inspections in fiscal 2020 “did not identify any legal representatives being denied access to their clients.”

ICE also reported that, of the 77 detention facility inspections conducted in fiscal 2020, the agency turned up just 12 instances where immigrants had their access to counsel hindered. They included times when immigrants had delayed access to free, legal phone calls or when attorneys were not promptly notified their clients were transferred to different detention centers.

The agency said it “reviewed the corrective action taken by each detention facility to ensure that the identified issues were addressed and corrected.”

The COVID-19 pandemic “has posed challenges to ensuring noncitizen access to counsel,” the agency said in its report, signed by ICE’s acting director, Tae Johnson. “However, noncitizen access to legal representatives remains a paramount requirement throughout the pandemic and has continued unabated, even while ICE takes important steps to safeguard the health and safety of those in its custody and to detect and mitigate the spread of COVID-19.”

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.

Referencing ICE’s claim of “unabated” attorney access in 2020, Heidi Altman, policy director at the National Immigrant Justice Center, called the transition to virtual attorney access during the pandemic “a complete disaster.”

It’s “frankly offensive,” Altman said, “to see ICE respond in such a cavalier way to a critically important oversight request on an issue that’s really life and death to the people it impacts.”

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 representative for ICE didn’t return requests for comment on the report.

On Tuesday, advocates 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. For example, ICE claimed that in April 2020, it began providing 520 free phone minutes in some facilities for detained immigrants to call lawyers and family members.

However, advocates noted in their response that these minutes were typically available only in 10- or 15-minute increments and generally on phones in public areas, which can make it difficult for immigrants to speak privately with their lawyers.

“That really hampers a robust exchange of information between attorney and client, and that could impact somebody’s case,” said Sarah Rich, senior supervising attorney for the SPLC’s immigrant justice project.

ICE additionally claimed to have designated “Legal Access Points of Contact” in field offices nationwide. The legal service providers who signed onto the memo, however, said it was the first they had heard of that position.

The advocates also highlighted several federal court rulings in cases challenging legal access during the pandemic that further contradict ICE’s account.

In April 2020, U.S. District Judge Jesus Bernal of the Central District of California concluded attorney-access policies adopted during the pandemic at detention centers in California likely violated detained immigrants’ constitutional right to access counsel.

Just two months later, following a SPLC lawsuit regarding legal access in detention facilities in the South, U.S. District Judge Colleen Constance Kollar-Kotelly of the District of Columbia came to a similar finding. She called ICE’s efforts to increase virtual attorney access in light of pandemic-era in-person limits “inadequate and insufficient” and “more restrictive than standards promulgated for criminal detainees.

Congressional oversight

While the ICE report focused on conditions in fiscal 2020, advocates say policies hindering access to counsel in detention remain prevalent. Meanwhile, the government’s use of immigration detention has increased under the Biden administration.

In each month between October and February, the average daily population in immigration detention ranged from 19,700 to more than 23,000, according to ICE data. In January 2021, when President Joe Biden took office, the average daily detained population was roughly 15,000.

Advocates said they want Congress to provide more agency oversight and to stop funding high levels of immigration detention, while providing fewer dollars toward pro bono lawyers for people in detention.

“Congress is doing its job and engaging in oversight, but failing to take the next step to use its power of the purse to effectively respond to what it is seeing,” said Altman.

The advocates also questioned ICE’s commitment to its oversight obligations. Congress maintained the legal access reporting provision in its fiscal 2022 spending bill that passed earlier this month.

“We’d like to see overseers and appropriators pay attention to what the actual facts are and challenge ICE’s accounting of them,” said Eva Bitrán, a staff attorney for the ACLU of Southern California. “We’re hopeful that Congress won’t just take ICE’s word for it, on this issue or on any other.”

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