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In its 2021 spending bill for the Department of Homeland Security, Congress required Immigration and Customs Enforcement (ICE) to report on the state of legal access in ICE detention facilities. Last month ICE submitted its report, claiming generally that “noncitizen access to legal representatives remains a paramount requirement” for the agency. Over the course of a seven page, cursory memo, the agency outlined steps it claims to have taken to enhance the ability of people in its jails to communicate with their legal teams, especially using remote methods due to the pandemic.

The problem? ICE’s Legal Access Memo bears little resemblance to the day-to-day reality experienced by people in ICE custody and their attorneys, who regularly go weeks without being able to communicate because of obstacles imposed by ICE and its contractors.

Today, the National Immigrant Justice Center along with colleagues at the Southern Poverty Law Center, American Immigration Council, and the American Civil Liberties Union of Southern California submitted our own memo to congressional appropriators, rebutting the claims made by ICE in its legal access memo. CQ Roll Call covered our analysis and the discrepancy between ICE’s memo and the reality experienced by people in detention and their attorneys, further reporting that congressional aides also were surprised by the ICE report which they said “fell short of expectations.” One congressional staffer noted that ICE’s report, “‘feels very disingenuous at this current moment,’ expressing a need for further follow-up with ICE to ‘understand exactly how this report got through.’”

Our memo addresses the points made by ICE in its report to Congress, describing point-by-point ICE’s crucial omissions and misrepresentations. A few examples:

  • ICE’s report boasts that access to legal representatives for those in ICE custody has “continued unabated” throughout the pandemic through enhanced access to remote communication. Yet ICE has so severely restricted access to remote communications during the course of the pandemic that it faces two active federal lawsuits brought on behalf of individuals alleging obstacles to counsel so grave as to violate their constitutional rights. In one of these cases, the court found ICE’s remote legal visitation and communication practices to be “inadequate and insufficient,” issuing a Temporary Restraining Order requiring ICE to ensure basic attorney-client access measures. In another, the court noted that ICE could provide no explanation for its common practice of requiring individuals in detention to pay exorbitant phone rates for what should be free legal calls.
  • ICE states in its report that through its own inspections it did not identify any legal representatives being denied access to their clients. Yet ICE routinely denies NIJC and other legal service providers access to our clients in ICE custody. In many facilities, ICE or the contracting jail requires people to be quarantined for a period of 10 or 14 days upon arrival for COVID precautions, and denies all access to confidential legal phone calls during this period. Our attorneys are regularly unable to speak with their clients for days or weeks on end because of these policies, even when preparing for an imminent court hearing.
  • ICE’s report describes its initiative to provide approximately 500 free phone minutes to individuals in ICE custody as a major improvement in legal access. However, it is our experience that these minutes are rarely if ever available for use on a confidential phone line, rendering them largely useless for attorney-client communications.

Meaningful and prompt access to confidential communication with counsel is literally a life and death matter for individuals who are in ICE detention. Barriers to communication can prevent an individual from being fully prepared for a court hearing that will determine whether they are permanently separated from their loved ones. A lack of confidential space for attorney-client communications can mean that an LGBTQI person may never feel safe to disclose their sexual orientation or gender identity, compromising both their own safety and their ability to present their full claim to asylum or other protection.

We are dismayed by ICE’s cavalier and disingenuous approach to this gravely serious topic. ICE must begin addressing the severe obstacles to legal access that individuals in detention face routinely throughout the nation, and members of Congress must hold the agency accountable for its failings.