3 Cases That Could Boost Immigrants' Access To Counsel

By Nicole Narea | February 10, 2019, 8:02 PM EST

Immigrants facing deportation are much more likely to succeed in their cases with access to counsel, but there remains a profound crisis of representation in the nation's immigration courts, attorneys said.

According to data from Second Circuit Chief Judge Robert Katzmann's Study Group on Immigrant Representation, 63 percent of immigrants do not have counsel in immigration court proceedings. Only 13 percent of asylum-seeking immigrants prevail in their cases without a lawyer, while 74 percent of those with a lawyer see success.

Courts have so far rejected the idea that immigrants have a right to counsel under the Constitution's Sixth Amendment. But some organizations are trying to change that for immigrant minors who are not capable of representing themselves and at least eliminate barriers to access to counsel.

Here, Law360 examines their suits.

Conditions in Rural Detention Centers

Lisa Graybill, deputy legal director of the Southern Poverty Law Center, said the organization, which is focused on "impact litigation," has not traditionally represented individual immigrants directly. But under the Trump administration's immigration enforcement policies, there has been a desperate need for immigrant representation in regions the organization serves, particularly in Georgia and Louisiana.

Detention centers in those states have some of the lowest representation rates in the country, which may be because many of them are remote, she said. Pro bono attorneys may not be able to drive several hours outside of city centers to meet with clients, and to hire an attorney could be prohibitively expensive for detainees.

Graybill said the SPLC consequently opened offices near some of the most remote immigration detention centers and staffed them with immigration attorneys. It was then that they discovered even more complications in visiting clients — for example, the LaSalle Detention Facility in Jena, Louisiana, only had one attorney visitation room for a detainee population of about 1,200, she said.

"Our goal was to provide representation to as many immigrants as we could," she said. "The barriers to access in counsel made it hard for us to effectuate our mission."

The SPLC filed suit in D.C. federal court challenging the conditions in LaSalle as well as Irwin County Detention Center in Ocilla, Georgia, and Stewart Detention Center in Lumpkin, Georgia, alleging violations of the detainees' Fifth Amendment due process rights, the Administrative Procedure Act and the organization's First Amendment right to represent detainees.

The suit seeks to improve conditions in the detention centers that inhibit access to counsel. Critically, it requests access to remote interpretation services in attorney-client meeting spaces so that counsel can communicate with migrants who speak any language, rather than relying on locally based interpreters.

"We don't have access to languages other than English, Spanish or French because we can't bring in our own language lines with access to interpreters for which we pay," Graybill said. "It's relatively limiting considering that asylum seekers come from literally all over the world. But there is very little we can do."

Among other requests, the suit also asks the court to order the detention centers to provide sufficient space for attorney-client meetings and confidential attorney-client teleconferencing in a timely manner.

SPLC is currently waiting for a decision as to whether the cases will be severed and transferred to courts in the south, which would triple the volume of litigation. Graybill said the organization decided to file in D.C. because access to counsel "should be uniform" across the jurisdictions.

The Department of Justice and Department of Homeland Security did not immediately respond to requests for comment on the suit.

Barriers to Communication

As the SPLC's suit moved forward, a different case brought by the Immigrants' Rights Clinic at Stanford Law School and other organizations is also challenging barriers to communicating with counsel but focuses specifically on insufficient telephone access at facilities in southern California, including the Adelanto ICE Processing Center in Adelanto, California, and two Orange County, California, jails.

The complaint alleges that, by unlawfully restricted detainees' telephone access, the facilities have hampered their ability to secure counsel and discuss their cases. Moreover, the facilities do not provide enough visitation rooms to facilitate confidential conversations and do not provide detainees prompt mail service due to weekslong screening delays or internet access, according to the complaint.

The three-named plaintiffs in the suit — Ernesto Torres, Desmond Tenghe and Jason Nsinano — seek to represent a class of all current and future detainees in southern California facilities operated by the Orange County Sheriffs Department or the private prison company GEO Group Inc.

According to Annie Shi, a law student working in the clinic, counsel cannot call clients in detention, and clients face obstacles in calling counsel during business hours given that they are not permitted to leave messages and cannot access machine answering systems that require the caller to dial an extension, she said.

Under U.S. Immigration and Customs Enforcement detention standards, detainees must be permitted "reasonable and adequate" access to telephones and to "meet privately with their current or prospective legal representatives and legal assistants." But problematically, the detention standards are non-binding, giving ICE and the private prison contractors it hires to operate detention facilities free reign.

The ability to communicate privately with attorneys is a due process right that's crucial in the immigration context, according to Shi, who said asylum seekers may need privacy to discuss sensitive topics with their attorneys, such as traumatic experiences or personal traits such as their HIV status or sexuality. Additionally, if an immigrant is eligible for an E visa, they may have been witness to a crime and helped the government prosecute that crime, she said.

"Those things can be difficult to tell people, let alone guards or other detainees," she said. "But they are so important to some of their claims. Without this ability to communicate, attorneys can't present an effective case for why this immigrant should stay and be granted asylum."

Shi said the clinic is following in the footsteps of another California case, Lyon v. ICE. In that suit, the ACLU reached a settlement with the government giving detainees at four Northern California detention centers private rooms for free and direct calls and access to voice messages, as well as eliminating short limits on call duration.

The DOJ and DHS did not immediately respond to requests for comment on the present case.

Appointing Counsel for Immigrant Minors

Identified in court filings as "C.J.L.G.," the Honduran boy whose case tests whether immigrant children have a right to counsel has been called a "sympathetic petitioner" by the Ninth Circuit.

In 2014, the then-13-year-old had fled Honduras with his mother after resisting recruitment to the international criminal gang MS-13, whose members put a gun to his head and threatened to kill his family if he did not join. Immigration authorities apprehended them shortly after their arrival in the U.S. and initiated removal proceedings against them.

In spite of the fact that neither of them speak English, his mother represented C.J. at immigration court proceedings in Los Angeles, California, because she could not afford to hire an attorney. On his asylum application, she provided only "threadbare statements," much of which were "borderline inscrutable and non-responsive," according to court filings.

The immigration judge consequently denied C.J.'s application. It was then that American Civil Liberties Union counsel Ahilan Thevanesan Arulanantham found him after digging through government records of unrepresented children in immigration courts.

The organization took up C.J.'s case, recognizing it was an ideal vehicle to bring the issue of whether immigrant children have a right to appointed counsel before the Ninth Circuit. The case is the first of its kind, which is not surprising given that unrepresented children do not typically have the resources to advocate for their own rights, Arulanantham said.

"Unrepresented children are not in a position to make constitutional arguments ... and that's the unfortunate reality of the system that, in the courts' view, is what Congress required," he said.

In January 2018, a three-judge Ninth Circuit panel found that neither the Constitution's due process clause nor the Immigration and Nationality Act specify immigrant children's right to public court-appointed counsel. But the full court agreed to take another look at the case, holding oral arguments in December.

There did not seem to emerge a clear consensus among the judges, who asked tough questions of both the government and Arulanantham, he said.

Even if the outcome is in C.J.L.G.'s favor, the judges could issue a narrow ruling, finding, for example, that the immigration judge in his case had made an error rather than creating a broad mandate that all individuals under 18 are entitled to court-appointed counsel. Moreover, such a mandate would only apply in the Ninth Circuit.

"This is one case," Arulanantham said. "But there are thousands of children who are unrepresented in front of our immigration courts every day all around the country. It's a massive, massive human rights problem."

The DOJ and DHS did not immediately respond to requests for comment on the suit.

Have a story idea for Access to Justice? Reach us at accesstojustice@law360.com.

--Editing by Kelly Duncan.

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