Access to legal counsel is one of the fundamental tenets of American jurisprudence. But in instances when access is of critical importance, most notably by immigrants held in detention, more often than not access is denied or near impossible to attain. Under U.S. law, individuals in immigration proceedings are not guaranteed court-appointed counsel, so legal services provided by non-profit agencies and NGOs are ultimately the only safety net to protect their due process rights.
In a report released earlier today, the National Immigrant Justice Center (NIJC) found that the availability of affordable legal services for immigrant detainees is grossly inadequate. The geographic isolation of detention facilities, compounded by internal policies governing external communication by detained immigrants, result in heightened isolation of men, women and children. Highlights of the report are outlined below.
Significant Lack of Access to Counsel
- Most of the immigrants detained in the surveyed facilities have insufficient access to legal counsel because the facilities are isolated and legal aid organizations do not have the resources to serve them. More than a quarter of the surveyed facilities had no access to legal aid outreach from non-governmental organizations (NGOs), including direct representation and legal orientation programs.
- 80 percent of detainees were held in facilities which were severely underserved by legal aid organizations, with more than 100 detainees for every full-time NGO attorney providing legal services. More than a quarter of detainees were in facilities which were even more grossly underserved, where the ratio was 500 or more detainees per NGO attorney. A full 10 percent of detainees were held in facilities in which they had no access to NGO attorneys whatsoever.
Limited Access to Legal Orientation Program
- Lack of funding and staff resources prevent NGOs from providing legal orientation to detainees, particularly when detention facilities are located far from major cities.
- 55 percent of detention facilities, holding about a quarter of detainees, offered no program to provide detainees with information about their rights. In 17 percent of facilities, the government-funded Legal Orientation Program (LOP) allows NGOs to present legal information sessions. In 28 percent of facilities, NGOs offered "Know Your Rights" presentations (KYRs) without any government funding; such presentations occurred much less frequently than LOP presentations.
Restrictive Phone Policies
- Barriers to access to legal services for geographically isolated detainees is compounded by policies which block detainees' ability to communicate with attorneys by phone. Of the 25,489 detainees in the 67 detention facilities surveyed regarding detainee phone access, 78 percent were in facilities where lawyers were prohibited from scheduling private calls with clients.
- None of the facilities in the phone survey allowed detainees to make collect calls to attorneys unless the attorneys had pre-registered with the facility's contracted phone company.
Recommendations to Improve Access to Legal Counsel for Detained Immigrants
The Department of Homeland Security must:
- Reform enforcement policies to reduce the number of detainees and adopt alternatives to detention (ATD) programs that would improve access to counsel and reduce costs.
- Demonstrate to Congress the financial and operational effectiveness of ATD programs and request sufficient appropriations to expand them.
- Locate detention facilities near legal counsel by 1) requiring a Legal Orientation Program to be operational before contracting with or opening a new facility, and 2) phasing out, within two years, its use of facilities where detainees lack access to counsel.
- Require all facilities to adhere to standard policies which permit phone, electronic, and written communication with legal aid providers, and provide training, guidance, and compliance monitoring to all facility administrators.
- Allow legal service providers to arrange private calls with immigrant detainees, and require phone service contractors to have transparent registration processes.
- Require calling services to be affordable and accessible to immigrant detainees, and improve and expand the current "pro bono platform" to allow free phone calls to legal counsel.
The Department of Justice must:
- Allow immigration judges to appoint legal counsel for particularly vulnerable individuals, such as children or individuals with disabilities, to satisfy constitutional requirements of fundamental fairness.
- Work with Congress and DHS to make the Legal Orientation Program available nationwide and to permit use of funds for direct representation when an immigration judge appoints an NGO to represent a detainee.
Arlene M. Roberts is the author of The Faces of Detention and Deportation: A Report on the Forced Repatriation of Immigrants from the English-speaking Caribbean.