WASHINGTON – Today, Rep. Raúl M. Grijalva (AZ-03) and 27 members of Congress wrote to the Department of Homeland Security (DHS) Secretary Alejandro Mayorkas and Acting Director of Immigration and Customs Enforcement (ICE) Tae Johnson regarding ​their failure to ensure that immigrants can access legal representation in detention.

The Members argue that all immigrants detained ICE custody have a constitution right to due process, including the ability to find and communicate​ with attorneys. A recent lawsuit filed by attorneys representing immigrants detained by ICE, as reported by the Arizona Republic “accused ICE of limiting access to their clients in four facilities, including one in Arizona, arguing the development jeopardizes migrants’ rights to full and fair proceedings in immigration courts.”

The Members’ letter details how ICE detention facilities nationwide have impeded even the most basic modes of access to counsel, including telephone calls, video-teleconferencing (VTC), legal mail, and in-person legal visits, including the lack of language resources.

“As advocates have reported nationwide, detained immigrants are significantly restricted from making free, confidential, and private phone calls to counsel. Instead, phone calls are often cost prohibitive, and telephones for detained people are almost always located in public areas, and are often in disrepair,” wrote the Members. “At least 58 ICE detention facilities do not allow attorneys to schedule phone calls with detained clients in advance, raising even greater challenges to access interpretation or mental health evaluators… Attorneys nationwide report delays in legal mail at detention facilities, hampering their ability to timely meet court deadlines, particularly because most detention facilities lack ways to exchange documents by email or fax. ICE has also undermined attorney-client access by failing to provide confidential, private meeting rooms at detention centers, by providing too few visitation rooms, prohibiting the use of laptops, cell phones, and printers in legal visits, and by enacting unreasonable and arbitrary restrictions on attorney visits, including time, date, and attire restrictions.”

“Access to counsel can be a matter of life or death for immigrants detained by ICE,” said Eunice Cho, senior staff attorney at the ACLU’s National Prison Project.  “When people can’t communicate with their attorneys, it increases the chance they will lose their case – an outcome that ultimately affects whether or not they will be permanently separated from their loved ones or sent back to dangerous conditions from which they fled. It’s past time ICE followed the law and their own policies.”

As a result of these deficiencies, the Members urge Secretary Mayorkas and Acting Secretary Johnson to consider the following recommendations:

1. Ensure all ICE detention facilities provide free, private, confidential, and unmonitored legal phone calls without limits on duration to detained immigrants to contact and communicate with counsel and that there are no limits on the ability to have interpreters on the line during those attorney calls. ICE should also ensure all ICE detention facilities enable attorneys to schedule free, private, confidential legal telephone calls and video teleconferencing calls with detained immigrants in advance.
2. Ensure all ICE detention facilities provide a mechanism for detained immigrants to exchange legal documents electronically in a timely, confidential, and free manner with counsel, including by email and fax.
3. Ensure all ICE detention facilities provide adequate spaces for private, confidential, in-person legal visits, without unreasonable and arbitrary restriction and delay, and that attorneys and staff may bring in laptops, printers, and cell phones to visits.
4. Ensure information regarding attorney communication is clear, up-to-date, and publicly available to attorneys and detained immigrants alike.
5. Ensure ICE exercises adequate oversight and collects meaningful data on immigrants’ access to counsel in detention.
6. Ensure all ICE detention facilities provide timely and free interpretation and translation services for detained immigrants with limited English proficiency in accessing detention services and programs.

The letter was cosigned by Reps. James P. McGovern, Rashida Tlaib, Sheila Jackson Lee, Ann Kirkpatrick, Bonnie Watson Coleman, Eleanor Holmes Norton, Juan Vargas, Sylvia R. Garica, Nannette Diaz Barrágan, Gwen S. Moore, Joaquin Castro, Mike Quigley, Jan Schakowsky, Barbara Lee, Alexandra Ocasio-Cortez, Sara Jacobs, Adam Smith, Adriano Espaillat, Ayanna Pressley, Lloyd Doggett, Judy Chu, Jesús G. “Chuy” García, Tony Cárdenas, Dwight Evans, Frederica S. Wilson, Henry C. “Hank” Johnson, Jr., and Jason Crow.

The full letter can be found here.