Illegal Border Crossings Today:

No Unfettered Right to Counsel

ice arrests

According to NBC News, the Refugee and Immigrant Center for Education and Legal Services (RAICES) has filed a complaint with U.S. Immigration and Customs Enforcement (ICE) alleging that ICE is “blocking detained immigrants from free legal services.”

RAICES claims that, ““ICE drastically changed its policies recently in a way that significantly limits the ability of pro bono attorneys to work with detained persons” detained at the Karnes detention facility in Texas.

So, what exactly did ICE do to prompt the complaint?

  • ICE has limited group legal meetings.
  • ICE has required that there be, “one prospectiveclient or current client for every volunteer legal team member in the room.”
  • ICE stopped, “allowing people to sign up forlegal help through a ‘walk-in’ signup list.”

None of those measures should be the least bit shocking toanyone with any familiarity with prisons, jails or detention centers. Incontrolled custody settings, the safety, security and good order of thedetention facility take precedence over all other concerns. While detaineeshave a right to communicate with their legal counsel, they aren’t free to do soat any time and in any manner they choose.

In fact, ICE’s procedures are downright permissive compared to those in place at many other detention facilities. Take for example the New York State Department of Corrections and Community Supervision policies for inmate legal visits. It requires a minimum of 24 hours notice prior to any legal visit. It limits legal visitors to attorneys, law students, and paralegals. Visits may only be conducted Monday through Friday during ordinary visiting hours. And the Superintendent of any institution may deny legal visits, “if such action is necessary to maintain the safety, security, and/or good order of the facility.”

ICE, on the other hand, allows “provides 12 hours of legalvisitation daily, even though the standards call for eight on weekdays and fouron Saturdays and Sundays,” and, “attorneys to meet with multiple clients andpotential clients daily, and includes the opportunity for ‘walk-in’appointments and daily private group meetings.”

RAICES’ complaint is part of an overall pattern where organizations that advocate on behalf of immigration violators brazenly demand privileges for detained foreign nationals that simply that aren’t available to U.S. citizens in similar circumstances. Unfortunately, ICE has a history of giving in to such unreasonable demands. The absurd Flores Settlement Agreement is a perfect example. Will ICE cave this time? That remains to be seen.

As a matter of constitutional law, due process in criminalproceedings requires that litigants retain their own counsel, waive their rightto an attorney, or proceed with court appointed counsel if they are indigent.In civil matters, however, litigants have a limited right to counsel at theirown expense, but may be forced to continue without an attorney if they cannotor do not find one. Deportation is a civil matter.

ICE is not “blocking” anyone’s access to free legal help by imposing reasonable procedures on attorney legal visits to detention centers. On the other hand, RAICES, and organizations, like it are stretching the concepts of due process and the right to counsel well beyond their intended bounds. ICE should firmly stand its ground and preserve its ability to ensure the safety of everyone who must enter its detention facilities.