A survey of U.S. immigration detention facilities by Heartland Alliance's National Immigrant Justice Center (NIJC) shows that as the Obama administration detains more immigrants than ever before, many lack access to affordable legal services because they are held in remote locations and non-governmental organizations (NGOs) are unable to meet the staggering demand for legal assistance. The report, Isolated in Detention: Limited Access to Counsel in Immigration Detention Facilities Jeopardizes a Fair Day in Court, also finds that policies which restrict detainees from contacting lawyers by phone further isolate many of the estimated 32,000 women and men detained every night by the Department of Homeland Security (DHS).
Access to legal representation has a significant effect on the outcome of immigration cases. A 2005 Migration Policy Institute study found that 41 percent of detained individuals applying to become lawful permanent residents who had legal counsel won their cases, compared to 21 percent of those without representation. In asylum cases, 18 percent of detainees with legal representation were granted asylum, compared to only three percent without legal representation. Under U.S. law, individuals in immigration proceedings are not granted court-appointed counsel, so detained immigrants must find a way to locate and pay for attorneys from detention.
"Our survey found that the government is detaining thousands of men and women in remote facilities where they have extremely limited access to counsel." said Mary Meg McCarthy, executive director, National Immigrant Justice Center. "In some facilities, it is impossible for detained immigrants to find attorneys. As long as the government chooses to engage in the unnecessary, expensive and inhumane detention of men, women, and children who are not dangers to our communities, significant barriers will prevent a fair day in court for detainees."
NIJC surveyed 150 immigration detention facilities nationwide (representing approximately 97 percent of the detention beds) and 148 NGOs providing legal services to detained immigrants. Because phone communication often is the only way people in isolated facilities can access legal counsel, NIJC conducted a separate survey of 67 facilities, accounting for 81 percent of the detention beds, to determine detention facilities' policies regarding detainees' phone access to attorneys.
Among the survey's key findings:
- While the U.S. government spent $5.9 billion to detain immigrants in fiscal year 2009, it spent less than 0.07% of that amount to provide detainees with legal rights information. Ensuring due process for the 400,000 detained immigrants was largely the job of 102 under-resourced NGOs.
- None of the NGOs had the resources required to meet the demand for legal services, particularly at detention facilities located far from major cities. Specifically, more than a quarter of the detention population included in the survey was in facilities with 500 or more detainees per NGO attorney. Eighty percent of detainees were in facilities with more than 100 people for every NGO attorney. A full 10 percent of detainees were held in facilities that had no access to legal counsel at all.
- More than half of detention facilities, holding about a quarter of the detained immigrant population, did not offer detainees any informational presentations about their rights in the immigration system.
- Barriers to legal services for geographically isolated detainees are compounded by policies blocking detainees' ability to call attorneys. Seventy-eight percent of the detention population included in the phone survey were housed in facilities prohibiting lawyers from having private calls with clients.
Recommendations to Improve Access to Counsel for Detained Immigrants
The over-use of detention has far-reaching negative effects. NIJC calls on the Obama administration to end the unnecessary detention of women and men who pose no threat to society and to request appropriations from Congress to expand alternatives to detention programs where appropriate. NIJC recommends that DHS locate detention facilities only near cities which have established pro bono attorney networks willing to represent immigrant detainees. Furthermore, the immigration agency should ensure that detained immigrants can contact their attorneys by phone, allow legal service providers to arrange private phone calls with detainees, and allow detained immigrants to make free calls to legal aid organizations.
The U.S. Department of Justice (DOJ) also must help protect access to legal counsel for detained immigrants. NIJC calls on the DOJ to make the federal Legal Orientation Program, which provides basic legal information to detained immigrants, available in all immigrant detention facilities. The DOJ should also allow immigration judges to appoint legal counsel for particularly vulnerable individuals, such as children or people with disabilities. Finally, the DOJ should work with Congress 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.
Access to Legal Counsel for Detained Immigrants Makes Economic Sense
The Isolated in Detention report highlights federal detention cost estimates which show that ensuring detained immigrants have access to counsel through expanded legal orientation programs and alternatives to detention would save taxpayers hundreds of thousands of dollars per year. Effective alternatives to detention, which have already been piloted and would allow immigrants better access to attorneys, cost an average of $12 per detainee per day compared to the $122 it currently costs to detain someone.
"Without fundamental change in the U.S. government's approach to immigration enforcement, Americans will continue to pay a high price for an unsustainable system that erodes American ideals of justice and human rights." McCarthy said.
The report is available at www.immigrantjustice.org/isolatedindetention
Heartland Alliance's National Immigrant Justice Center is a Chicago-based nongovernmental organization dedicated to ensuring human rights protections and access to justice for all immigrants, refugees and asylum seekers through a unique combination of direct services, policy reform, impact litigation and public education. For more information visit www.immigrantjustice.org