ICE Sued for Denying Access to Counsel in Detention Centers

Last Thursday, five non-profit organizations, represented by the ACLU, sued Immigration & Customs Enforcement (ICE), accusing the agency of "making it difficult for lawyers to meet with detainees." Specifically, the lawsuit accuses ICE of preventing regular contact with detainees by not providing sufficient meeting spaces, preventing lawyers from scheduling calls and leaving messages for clients, and denying access to videoconferencing technology. The lawsuit focuses on detention centers in Arizona, Texas, Louisiana, and Florida.

I do not have extensive personal experience with detention centers in Texas, Arizona, or Florida. I have represented detained individuals in all three states, but not with the frequency necessary to make me feel comfortable with corroborating the experiences outlined in the lawsuit (although I do believe them to be true based on my limited experience there).

Louisiana is a different story. Most immigrants detained in Arkansas are transferred to ICE custody in the Pelican State - usually facilities in Jena or the Winn Correctional Center. I have represented a not insubstantial number of people detained in those facilities over the years. In my personal opinion, this lawsuit is long overdue.

The Winn Correctional Center, Winnfield, LA (circa 2020)

Representing detained clients is difficult. There are numerous hurdles to putting together a strong case for detainees. Communication, or lack thereof, has been the most consistently frustrating aspect of the work. This includes communication with my clients, but it extends to communication with the deportation officers, ICE trial attorneys, and the facilities and their employees (usually run by contractors - not the government). Phone calls go un-answered and voicemails are almost always full.

In all fairness to at least one of these facilities, I can arrange for a client phone call with Winn Correctional. To do so, I have to e-mail a specific individual and present a range of potential times I am free. That individual will then arrange something. If the identity of that individual were to change, I would never know, much less have the new individual's contact information. For someone who does not regularly represent detainees in Winn, there would be no reason to have that contact info. It is not posted on a website or made generally available.

For now, I know who that individual is, and they have an established history of coming through when I need them. Despite that, scheduled phone calls are limited in terms of time and effectiveness. I cannot review documents with my client. I cannot do a full trial prep. The connection is often poor. I get the impression my clients are not truly left alone because few of them seem willing to open up on the phone calls.

Law is a tricky profession. Despite flashy courtroom dramas, the practice is not as easy as my showing up to court and dazzling with my oratory skills or high IQ questions on direct and cross examination. If my client is unable to provide me with the information that I need to present their case, I am not going to be able to effectively present that case. I do not live inside the minds of my clients. I do not have access to their memories, their feelings, or their fears. If they cannot communicate those things to me, I am stranded and forced to cobble together the best possible presentation based on limited information. All too often, those presentations are lacking because my communication with my clients is lacking.

But maybe that's the point. I might be cynical, but after more than a decade of representing individuals detained in those hell holes, I find myself wondering whether ICE, the U.S. Department of Justice, and their contractors are being intentional in their actions. Maybe there's a reason these detention facilities are located in the middle of nowhere four hours from the nearest metropolitan area. Maybe there's a reason beyond logistical issues that communication is limited. Poor communication is paired with a lack of wifi, an inability of counsel to bring certain items into the facility (including water when they may be required to remain in the facility for a 3-5 hour-long hearing), and other restrictions done in the name of security that make that make our job harder. 

This lawsuit probably should have been brought fifteen years ago. It will be interesting to see how it proceeds and what we learn from the information that comes out as it progresses (if it progresses). Maybe the complaint will prompt some changes. I will not be holding my breath though.


Nathan R. Bogart is one of the founding partners of Bogart, Small + Associates. He leads the firm's immigration practice group and focuses his practice on immigration-related litigation, including removal defense before the immigration courts, appeals to the Board of Immigration Appeals and U.S. Circuit Courts of Appeal, and federal lawsuits against the agencies tasked with implementing or enforcing U.S. immigration laws.

Bogart Small, + Associates is an award-winning Northwest Arkansas-based law firm focused on representing individuals, families, and small businesses in all immigration matters, as well as criminal defense, family law, and compliance matters. 

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