December 2, 2009

VII. Deprivation of Access to a Lawyer

The Importance of an Immigration Attorney

For any detained non-citizen facing deportation from the United States, the importance of legal counsel cannot be overstated. As early as 1931, a national commission charged with studying US immigration policy recognized that in “many cases” a detainee with counsel would be able to prevent a deportation “which would have been an injustice but which the alien herself would have been powerless to stop.”[68] Since 1931, immigration law has become only more complex and its procedures more difficult for immigrants to navigate without the aid of legal counsel.[69] Nevertheless, as immigration proceedings are civil and not criminal in nature, non-citizens have no right to court-appointed attorneys and must secure legal counsel at their own expense.

Often, it is only an immigration attorney who can tackle the complex legal questions relevant to whether a particular immigrant will be deported from the United States. These questions include, for example, whether an individual’s criminal conviction fits the definitions of deportable offenses in immigration law, whether an immigrant is dangerous or a flight risk, whether the individual has fled persecution in his or her home country, whether a particular non-citizen can marshal enough evidence to prove his “good moral character,” or whether the law on any of these issues applies retroactively. These are just a sampling of the numerous issues that immigration attorneys must address when representing clients facing deportation.

In fact, “immigration laws have been termed second only to the Internal Revenue Code [tax law] in complexity ... [a] lawyer is often the only person who could thread the labyrinth.”[70] Add to this the confusion arising from linguistic and cultural differences, as well as the fear and psychological strain caused by the experience of being arrested and detained, and the importance of an attorney becomes even more apparent.

For its part, the United States government appears at every deportation hearing represented by a Department of Homeland Security attorney. In the face of such opposition, an immigrant may be unable to adroitly argue her side of the story without the assistance of legal counsel. The importance of counsel to a non-citizen’s case has been demonstrated forcefully in the context of refugees seeking asylum in the United States:

[W]hether an asylum seeker is represented in court is the single most important factor affecting the outcome of her case. Represented asylum seekers were granted asylum at a rate of 45.6%, almost three times as high as the 16.3% grant rate for those without legal counsel.[71]

The essential relationship between an attorney and an immigrant facing deportation is also protected under human rights law. The International Covenant on Civil and Political Rights (ICCPR), a treaty to which the United States is party, provides in Article 13 for a non-citizen’s right to defend against deportation and to “be represented for the purpose before the competent authority or a person or persons especially designated by the competent authority.”[72]

US law also provides that immigrants may choose and pay for their own attorneys:

Right to Counsel—In any removal proceedings before an immigration judge and in any appeal proceedings ... the person concerned shall have the privilege of being represented (at no expense to the Government) by such counsel, authorized to practice in such proceedings, as he shall choose.[73]

Federal regulations make clear that this right to counsel applies to any proceeding in which an examination of the immigrant’s case occurs, including a bond hearing, master calendar hearing, merits hearing, and any appeals.[74]

Despite the widespread recognition of the importance of legal counsel during deportation proceedings, as Table 14 illustrates, the majority of immigrants (60 percent in 2008) go through the entire process without an attorney.

Table 14: Non-Citizens Appearing in Immigration Court without Counsel

Fiscal Year

Percent of Non-Citizens Appearing in Immigration Court without Counsel

2008

60%

2007

58%

2006

65%

2005

65%

2004

55%

2003

52%

2002

55%

2001

59% (approximate)

2000

58% (approximate)

Source: US Department of Justice, Executive Office for Immigration Review, “Fiscal Year 2008 Statistical Year Book,” Office of Planning, Analysis, and Technology, March 2009, p. 5; US Department of Justice, Executive Office for Immigration Review, “Fiscal Year 2007 Statistical Year Book,” Office of Planning, Analysis, and Technology, April 2008, p. 5; US Department of Justice, Executive Office for Immigration Review, “Fiscal Year 2006 Statistical Year Book,” Office of Planning, Analysis, and Technology, February 2007, p. 6; US Department of Justice, Executive Office for Immigration Review, “Fiscal Year 2005 Statistical Year Book,” Office of Planning, Analysis, and Technology, February 2006, p. 6; US Department of Justice, Executive Office for Immigration Review, “Fiscal Year 2004 Statistical Year Book,” Office of Planning and Analysis, March 2005, p. 7; US Department of Justice, Executive Office for Immigration Review, “Fiscal Year 2003 Statistical Year Book,” Office of Planning and Analysis, April 2004, p. 7; US Department of Justice, Executive Office for Immigration Review, “Fiscal Year 2002 Statistical Year Book,” Office of Planning and Analysis, April 2003, p. 7; US Department of Justice, Executive Office for Immigration Review, “Fiscal Year 2001 Statistical Year Book,” Office of Planning and Analysis, March 2002, p. 24 (fiscal years 2001 and 2000).

Transfers Obstruct Established Attorney-Client Relationships

It’s hugely difficult for the attorney-client relationship. You go from a situation where you are able to meet with your client to a situation where he is thousands of miles away. We looked into sending one of our lawyers to Texas, just to drop in because he was in the middle of nowhere. But we never did. It’s difficult to get to.[75]

Inherent in the right to representation by counsel is the practical requirement that ICE keep attorneys informed of the whereabouts of their detained clients. Despite the requirement in the detention standards that attorneys “shall be” notified of detainee transfers, the standards are not laws; therefore ICE can violate its own standards with relative impunity. The non-binding nature of the standards is illustrated by the many instances Human Rights Watch documented in which such notifications were either not made at all, or not made until several days or weeks after a detainee was “en route to” or “ha[d] arrived at” the new detention location.

In nearly every case documented by Human Rights Watch, attorneys learned of the transfers not from ICE, but rather from the detainee or his family. A March 2009 investigation of ICE’s transfer policies conducted by the Department of Homeland Security’s Office of Inspector General (OIG) confirmed this finding when it stated, “ICE staff interviewed at the sites visited said they did not notify the detainee’s legal representative because they considered the notifications to be the detainee’s responsibility.”[76] This belief on the part of ICE staff persisted despite the fact that, as the OIG noted, “ICE is required to notify the representative of record that the detainee is being transferred.”[77] The 2009 Schriro Detention Report stated that attorneys: “Report that their clients are transferred to locations prohibitively far away, and that they are not notified when their clients are moved.”[78]

While some detainees do eventually manage to get in contact with their attorneys after transfer, some are unable to tell their attorneys where they are. An attorney in Louisiana told Human Rights Watch that her client had been transferred “four or five times. When he called me, he didn’t even know where he was. Turned out he is in New Mexico.”[79] Still others cannot afford to purchase phone cards to let their family or attorneys know of their new location.[80]

Another immigration attorney in northern California told Human Rights Watch:

I have never represented someone who has not been in more than three detention facilities. Could be El Paso, Texas, a facility in Arizona, or they send people to Hawaii. Even after the NTA is filed, the transfers occur. Some can just do a merry-go-round throughout the time they are in immigration facilities.... I have been practicing immigration law for more than a decade. Never once have I been notified of transfer. Never.[81]

In all cases documented by Human Rights Watch in which detainees’ attorneys were not timely notified of transfers, the attorney had already filed a notice of representation with ICE (this notice is called a “G-28”) prior to the transfer of his or her client. Therefore, these transfers are also inconsistent with ICE’s stated preference: “we prefer not to transfer anyone with a G-28 on file. But, there is still a need in some cases.”[82]

For example, Natalie S., an immigration attorney in Pennsylvania, had a G-28 on file for a client who was transferred to Willacy Detention Center in Raymondville, Texas, on March 18, 2008. Two days after the transfer, the client’s wife called Natalie S. to inform her of the transfer. At the time of the call, ICE had not yet informed Natalie that her client had been transferred.[83]

In another case Lamar P., an immigration attorney in San Francisco, had a G-28 on file for seven months when his client was moved from detention in California to Seattle, Washington. His client was transferred on July 13, 1998, and counsel was not notified of the transfer until seven days later on July 20, 1998.[84]

After their clients were transferred, many attorneys reported to Human Rights Watch that they had to resort to calling detention centers around the country to try to find their clients.[85] One attorney in Chicago explained that she often calls for a regular telephone meeting with one of her detained clients (for whom she always files G-28 forms), only to have to cancel the call when her client cannot be found, at which point she begins “calling around to find them.”[86]

It is hardly surprising that attorneys are not informed of transfers given that ICE itself does not always keep track of where it has transferred detainees, and detainees remain “lost” for weeks or months at a time. A 2006 report issued by the Department of Homeland Security’s Office of the Inspector General described a transferred detainee whose new location was not updated for five months: “A detainee from CCA [Corrections Corporation of America detention facility in Florence, Arizona][87] was transferred to a Florida detention facility in November 2005. He remained listed in DACS [ICE’s computer system] for CCA until April 2006.”[88] Although a more recent DHS OIG investigation noted an improvement in ICE’s tracking of detainees, with the agency accurately recording the location of 94 percent of detainees in 2009, up from 90 percent in 2006, those who were inaccurately recorded remained “lost” for 3.7 days on average.[89]

Although a delay of several days may seem minor, when an attorney is not notified of a transfer it can have a serious impact on a detainee’s case. Crucial time in which an attorney and client can work together in person on preparing evidence or witness lists is lost, and sometimes filing deadlines are missed. Attorneys have no choice but to resign themselves to the fact that their clients have been transferred and begin to grapple with the challenges inherent in long-distance representation.

The logistics involved in representing a transferred detainee are significant impediments to effective lawyering. Most immigrants in deportation hearings are represented by pro bono attorneys who cannot afford to travel, and telephone communication is simply not adequate for proper representation. One commentator explained:

Most pro bono attorneys cannot afford to travel to remote detention facilities to appear at hearings or to meet with clients. Telephone conversations may also be impossible, because most detention centers have few, if any, telephones, few aliens can afford long distance telephone calls, and aliens and their attorneys often do not speak the same language. Thus, in most cases, transfer prevents even minimal communication between attorney and client and effectively prohibits adequate representation.[90]
 

 

The Logistical Challenges of Representing a Transferred Client

 

A pro bono immigration attorney interviewed by Human Rights Watch described the challenges she faced in representing her client, a young man seeking asylum who was first detained by ICE in a facility for children when he was 17 years old. After reaching adulthood, he was transferred to a relatively convenient adult facility located an hour’s drive away from his attorney’s office in Chicago. He was then transferred from that facility to a detention facility 360 miles away in Kentucky. The attorney explained:

 

I had a G-28 on file for him as of March 2007. He was ordered removed on December 1, 2008, and was detained at McHenry [a county jail in Woodstock, Illinois]. Then he was transferred on December 14, 2008. I didn’t find out where he had been moved until December 23. I tried to call him at McHenry on December 14, but my conference call was cancelled because he wasn’t there. Then I called the four other [ICE] facilities [in Illinois] and found out he wasn’t at any of those facilities. Finally, I emailed ICE headquarters to ask where he was, and in the reply email they said he was at Boone County, Kentucky! Now that he’s in Kentucky, the main problem is that the detainees cannot call out. Without calling cards, they have trouble getting through on the 1-800 number, and they cannot make collect calls. They can’t fax us from there.... We needed him to sign some documents, it took about three weeks for us to get them signed ... I haven’t gone to Kentucky to see him in person, because given the volume of clients and the distance, there isn’t even the possibility of being able to drive.[91]

 

An immigration attorney in northern California described what it was like representing her mentally ill client who had been transferred 840 miles away to Arizona. Due to ICE’s failure to follow up on his medical care, he was not on his prescribed medications and was “talking to himself, urinating on himself ... and they put him in solitary confinement.” Once in solitary confinement, all visits were limited to 30 minutes. She explained:

His family left California on a Thursday and spent 500 bucks to get there, only to have only 30 minutes with him on the Friday.... [For his case] we needed his signature, but given his condition, we couldn’t just send him a letter and ask him to sign it. It was a two-day trip [for our attorneys] just to get his signature.[92]

Another immigration attorney in Chicago explained what happened when her client was transferred to Texas:

I had a G-28 on file. I was not notified that my client was being transferred, and that routinely happens. He was transferred without giving me any notice. I had already established contact with [my client’s] deportation officer in October 2007. Then I got a call on November 15 from my client—he called to let me know they were sending him somewhere. I called the deportation officer. He didn’t know where he was going so I got in touch with his supervisor, who told me [my client] was already gone, and they couldn’t tell me where he was going. I ended up finding him by process of elimination. I called places all around the county. I wasn’t told of his whereabouts from ICE. I finally spoke to my client on November 20, 2007. He had been sent from Chicago to Texas.[93]

As these cases indicate, some immigration attorneys struggle to represent their clients after transfer. However, even this limited form of representation can continue only if immigration judges allow attorneys to appear for hearings over the telephone or through video conferencing. One immigration attorney acknowledges that the ability to “appear” through such alternative means is a privilege that can be abused by unscrupulous attorneys who prefer not to travel to the immigration courts and who “will, you know, call in for a hearing from a ball game.”[94] Nevertheless, if the right to counsel is to be respected in immigration proceedings, video and telephone accommodations must be made by immigration judges. This is true despite the fact that in some cases, appearance over telephone or video is problematic because it is a less effective means of advocacy.[95]

Human Rights Watch interviewed the sister of a legal permanent resident detainee facing deportation for a criminal conviction who was transferred from detention in New York to New Mexico. Many detained immigrants in New Mexico have their deportation hearings in El Paso, Texas, which was true for this young man as well. While everyone in the family had contributed what they could to pay for a lawyer in Brooklyn, New York, the detainee’s sister explained that the lawyer was hampered by having to do her work over the phone:

My brother had his first hearing over the phone. The judge was annoyed that she [the attorney] wasn’t there [in Texas]. He didn’t allow the lawyer to say much. The case went like the judge had already made up his mind. [The attorney’s] voice is a little too soft—she is very capable of doing this, she’s smart and knows what to do, but the phone? It’s definitely hard for her. That’s why we’re trying so hard to find the money so she can go down there.[96]

Although testimony or legal representation over the phone or video is never as persuasive as an in-courtroom appearance, an attorney appearing through one of these means is better than no attorney at all. Unfortunately, some immigration judges prohibit attorneys from appearing on behalf of their clients by telephone or video conference. In addition, some judges simply deny motions to appear telephonically because they are filed after the standard two-week deadline for filing motions. However, since immigration attorneys are sometimes not informed of their clients’ transfers, it may be impossible for them to meet this standard deadline. Judges’ rigid decisions to bar telephonic or video appearances contrast with the flexibility they could employ, since according to the governmental body that sets policies for immigration judges:

There are no required or recommended models regarding the location of the DHS [government’s] attorney, the respondent’s [non-citizen’s] attorney, and witnesses/family members for video or telephone conference hearings.... Yes, it is possible for Immigration Judges to conduct an immigration hearing via video or telephone conference in which the judge, DHS attorney, and respondent are in one location, but the respondent’s attorney, family members, employers, and other witnesses are in a different location.[97]

Contrary to this stated flexibility, an immigration attorney in California described the variety of rigid rules she has encountered in her practice:

In San Antonio, Texas, the judges won’t let a telephonic appearance happen. But in Eloy, Arizona, you’ll never have your telephonic appearance denied. For El Centro, California, the judges require you to appear in person for the first hearing [a 600 mile trip from northern California], but afterwards you can appear telephonically. But if your client is at Otay Mesa [530 miles from northern California], the judges there do not ever allow telephonic appearances. It’s a real nightmare.[98]

Transfers do not merely make the ongoing tasks of maintaining an attorney-client relationship more difficult. Sometimes, for one or more of the reasons outlined above, transfers sever the relationship completely. An attorney in El Paso said simply, “it’s a regular occurrence that people lose their attorney after transfer.”[99] Some detainees lose their attorneys completely after transfer because of changes in the law in the new jurisdiction, because logistical challenges make ongoing representation impossible, or because the immigration judges in the new location will not allow their attorneys to appear via telephone or video, and the detainee cannot afford to pay for an attorney to travel to appear in court in the new location.

As one attorney told Human Rights Watch, “it really snowballs very fast for families as far as cost is concerned. You can imagine ... [after transfer to Texas] they’re going to have to hire another counsel. It’s a vast amount of money for people who don’t have money to begin with.”[100]

Another attorney told Human Rights Watch,

In the cases that we see, ICE ignores the existence of prior counsel all the time.... The detainee gets transferred out here, and calls counsel, and all of sudden the counsel has to find someone local or drop the case.[101]

Transfer of Detainee Severs Attorney-Client Relationship

John M., originally from Ukraine and living lawfully in Boulder, Colorado, since 1994, became subject to removal proceedings in 2007 based on a conviction for trespassing and stalking.[102] He retained an attorney in Boulder to represent him. However, on December 21, 2007, John M. was transferred 895 miles away to detention in Arizona, and ICE’s motion to change venue was granted.

John M.’s attorney explained that since telephone appearances were not allowed by the new immigration judge in Arizona, it would be “very costly” for him to pay to fly his attorney from Colorado to Arizona for purposes of representation. In addition, his attorney explained that he was not as well informed about the applicable law in Arizona (Ninth Circuit), since he was used to practicing in the TenthCircuit. For these reasons, John M. lost his attorney. He told Human Rights Watch, “When I came here I lost my lawyer ... so I tried to hire another lawyer, but I cannot find anyone here.”[103]

Kwan I., who lived lawfully in the US with his wife and two US citizen children for 12 years, was arrested by ICE in Philadelphia and put into deportation proceedings after serving time for driving while impaired. He spent three days in a detention facility in York, Pennsylvania. His wife was able to secure an attorney for him there. However, on November 16, 2007 he was “put on a plane and transferred [to Texas]. They did not explain why. They just sent me here.” His attorney in Philadelphia found an attorney in Texas who was willing to represent him, but, Kwan told Human Rights Watch, “I have not talked to [her] yet. I don’t have money to hire her. I don’t know what is going on. No one here speaks Korean, so I must use my wife to talk over the phone.” Commenting on the difference it would have made had he been allowed to remain in Pennsylvania, he said, “Absolutely it would have made a difference [if they had kept me in Pennsylvania] because it takes only two hours to drive between York and [my attorney’s] office.”[104]

A Rare Case of Reversing Transfer

In rare cases, courts have recognized that transfers can deprive non-citizens of the counsel of their choice. Some have ordered the return of the individual to the pre-transfer location, or have enjoined the immigration authorities from engaging in further transfers.[105] An immigration attorney told Human Rights Watch how she eventually managed to get her client, who had been transferred from Chicago to Texas, sent back to Chicago after she had filed a motion to re-open his case. She even managed to get the government attorney to join with her in filing the motion to re-open, and venue was set in Chicago, requiring her client to return there from Texas:

It was hard to represent him from a distance. I was drafting an affidavit, and it was a lengthy affidavit, so I was fortunate that my client was kind of savvy. I was relying on him calling. We finally got his signature after sending it via federal express, and he signed it and returned it....
 
The key point to me is that the government agreed with me that his case needed to go forward, but even given that, ICE/DRO spent money to transfer him. It was a big waste of money for everybody and difficult for him. No one contacted me about the transfer. By the time I contacted an officer, they said it was too late. Even when the government signed the joint motion, they wouldn’t bring him back then, they waited until the judge granted the motion. The whole thing was just a waste.[106]

Court decisions to return transferred detainees are few and far between because transfers must be shown to be actually prejudicial to the immigrant’s case before a judge will take remedial action. This is a very high threshold of proof—essentially an exercise in crystal-ball gazing. The immigrant must prove (ironically without access to counsel nearby to aid in making the case) that regular access to a lawyer located in the pre-transfer location would have brought a significantly different result in his deportation case. Moreover, the 1996 laws put jurisdictional hurdles in place, making it increasingly difficult for detainees to obtain judicial review of this issue. The vast majority of cases even considering the issue were decided before 1996, and these decisions regularly found that a transfer does not impede the attorney-client relationship.[107] It is common for detained non-citizens to never raise the issue and give up on their appeals, resulting in their deportation from the United States.

As one attorney explained to a Human Rights Watch researcher:

After transfer, detainees lose the certainty [that comes from being near their attorneys]. I always speculated that transfer did have an effect on people and frankly I spent a good chunk of time with [my transferred client] saying to me, “I just want to quit. I’ll just go back to the Philippines.” Some transferred people did that, they just dropped their cases and said that they were giving up. I’m sure it happens all the time.[108]

Transfers create such significant obstacles to existing attorney-client relationships that ICE Special Advisor Dora Schriro recommended in her October 2009 report that:

Detainees who are represented by counsel should not be transferred outside the area unless there are exigent health or safety reasons, and when this occurs, the attorney should be notified promptly.[109]

Interference with Transferred Detainees’ Rights to Choose Counsel

Immigrants are often taken into custody by ICE at a location near to their home community where their family members, employers, church members, and other support networks are located. Their detention near to these support networks increases the chances that a detainee will be able to obtain legal representation in immigration proceedings. Once detainees are transferred to remote locations, they encounter much greater difficulties in obtaining local counsel. Their families may be able to find a lawyer, but that lawyer is likely to be located thousands of miles away, and may be unable or unwilling to go forward with representation of a distant client. In this way, the policy of transfers is inconsistent with non-citizens’ statutory right under US law to “[be] represented (at no expense to the Government) by such counsel, authorized to practice in such proceedings, as he shall choose[110]

“Like the Difference Between Heaven and Earth”

As a nine-year-old in 1970, Michael M. entered the US lawfully from Lebanon.[111] His parents are now US citizens, as are his sister, brother, ex-wife, and two children. His entire family and his support network, including a sizeable Lebanese community, are located in the Los Angeles area.

Michael M. was transferred 1,400 miles away to a detention facility in Texas after a few weeks in detention in southern California. He told Human Rights Watch that the difference for him between being detained in California and being detained in Texas is “like the difference between heaven and earth. At least in California I had a better chance. I could hire a Lebanese attorney to represent me. Now, here, I have no chance other than what the grace of God gives me.”[112]

A detainee who lived lawfully in the United States since 1990 and was facing deportation because of a drug conviction was transferred after serving his sentence on Riker’s Island, New York, to Varick Street Detention Center in New York. From there he was sent to York, Pennsylvania, and finally he was transferred 2,000 miles away to Otero County Processing Center in Chaparral, New Mexico. He said, “I can’t really do anything on my case and I can’t find a lawyer here in New Mexico. Everything would be better if I was nearer to my family and a place where I could find an attorney.”[113]

Another detainee, who had fled to the US from Guinea to escape female genital mutilation, had been transferred 2,025 miles from Cleveland, Ohio, to Florence, Arizona. She had spent two years in detention at the time of her interview with Human Rights Watch. She explained that before she could meet with the lawyer her brother had found for her in Cleveland, “They transferred me here [to Arizona]. He couldn’t do anything for me here. I don’t have him anymore.”[114]

A detainee from Mexico, who had lived in Los Angeles for 29 years, working in construction and manufacturing, with four US citizen children, was facing deportation because of a criminal conviction. He was transferred from Los Angeles to a detention center 435 miles away in Arizona. He told Human Rights Watch, “I tried to call attorneys in California to come and help me. If I was in Los Angeles, it would be easier to find a lawyer. But, here...? One lawyer in California wanted to charge me $3,000 just for the trip to Arizona.”[115]

An immigration attorney in Arizona said,

We have the private contracted prisons here. We have lots of [ICE] bedspace here in the middle of nowhere. The Florence Project [a small team of pro bono immigration attorneys in the state] can only represent a small number of cases. They do the best they can to represent them. But by far, detainees in Arizona have to be prepared to go it alone.[116]

In 2007, Christina Fiflis of the American Bar Association spoke about the paucity of legal counsel for detainees before the Committee on Homeland Security of the US House of Representatives. Remarking on the regular practice of transferring detainees from the east coast to facilities in Texas, she said:

Legal services for indigent immigrant detainees in South Texas are scarce, yet 3,200 beds are available for detainees at PIDC [Port Isabel Detention Center] and the Willacy County Processing Center in Raymondville, Texas. Detainees can no longer meet with their attorneys, and the local Immigration Judges regularly deny motions by counsel to appear telephonically for removal hearings. Existing counsel must either find local counsel to make appearances, travel to South Texas, or withdraw from their clients’ cases. The service providers in South Texas are only able to serve a fraction of the high volume of detainees in need of assistance when their original attorneys are forced to withdraw. These transfers are resulting in a lack of access to counsel for detainees.[117]

Corroborating this assessment, another detainee who said he feared persecution and torture in his home country of Indonesia based on his Chinese ethnicity was transferred to a detention center in Texas that was 1,400 miles away from his home community in Los Angeles. He told Human Rights Watch,

I could find a lawyer if I was detained in California. I have friends and my brother who could help me to find a lawyer. Here in Texas, I sent letters to lawyers to ask them to help me. I thought one had agreed. But that lawyer did not come to my final court date. I went to all of them alone. I’ve been in detention for seven months. I give up. I’m not going to appeal anymore.[118]

As the above testimony indicates, detainees not only have a harder time finding an attorney in the places to which they are transferred, many find that after transfer their willingness to defend against removal wanes as they spend increasing amounts of time in detention, far away from family and their community of support. As one detainee in Arizona put it, “After a while, some guys just sign for their [voluntary] departure, because they don’t have a lawyer and don’t feel able to fight.”[119]

The frequency of detainee transfers is also having a chilling effect on whether attorneys are willing to initiate an attorney-client relationship at all. Advocates told Human Rights Watch that attorneys are increasingly reluctant to take on cases from detainees because they can so easily be transferred across the country.[120]

Despite the clear interference transfer creates with a detainee’s ability to be represented by counsel, which is a right under US statutory and international human rights law, the US Ninth Circuit Court of Appeals has concluded that “‘[t]he government simply is not obligated to detain aliens where their ability to obtain representation is the greatest.’”[121] While one can understand why a court would not insist on the “greatest” possible access to counsel, the right has little meaning where the government can regularly and arbitrarily transfer detainees to locations far from their counsel of choice or locate major detention facilities in places where detainees are unable to obtain representation. A middle ground exists between those extremes.

 

[68] National Commission on Law Observance and Enforcement (the Wickersham Commission), “Report on the Enforcement of the Deportation Laws in the United States,” 1931, p. 109.

[69]See, for example, Baltazar-Alcazar v. INS, 386 F. 3d 940 (9th Cir. 2004).

[70] Ibid. (internal citations omitted).

[71] Jaya Ramji-Nogales, Andrew I. Schoenholtz, and Philip G. Schrag, “Refugee Roulette: Disparities in Asylum Adjudication,” Stanford Law Review, vol. 60, November 2007, p. 340. See also, Human Rights First, “In Liberty’s Shadow: U.S. Detention of Asylum Seekers in the Era of Homeland Security,” 2004, http://www.humanrightsfirst.org/about_us/events/Chasing_Freedom/asylum_report.htm (accessed November 4, 2009), p. 39 (citing Georgetown University Institute for the Study of International Migration analysis of US government statistics showing that “asylum seekers are up to six times more likely to be granted asylum when they are represented.”).

[72]International Covenant on Civil and Political Rights (ICCPR), adopted December 16, 1966, G.A. Res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, entered into force March 23, 1976, ratified by the United States on June 8, 1992, art. 13 (emphasis added).

[73] Immigration and Nationality Act, Section 292, 8 U.S.C. Section 1362.

[74] 8 C.F.R. Section 292.5(b).

[75] Human Rights Watch telephone interview with attorney Thomas S. (pseudonym), Los Angeles, California, February 2, 2009.

[76] Department of Homeland Security, Office of Inspector General, “Immigration and Customs Enforcement’s Tracking and Transfers of Detainees,”OIG-09-41, March 2009, http://www.dhs.gov/xoig/assets/mgmtrpts/OIG_09-41_Mar09.pdf (accessed November 4, 2009), p. 8.

[77] Ibid., p. 7.

[78] Schriro Detention Report, October 6, 2009, http://www.ice.gov/doclib/091005_ice_detention_report-final.pdf, p. 23.

[79] Human Rights Watch telephone interview with attorney JJ Rosenbaum, New Orleans, Louisiana, January 27, 2009.

[80] Human Rights Watch telephone interview with Tom Jawetz, American Civil Liberties Union, National Prison Project, Washington, DC, January 8, 2008.

[81] Human Rights Watch telephone interview with Holly Cooper, immigration attorney and clinical professor of law, University of California Davis School of Law, Davis, California, January 27, 2009.

[82] Human Rights Watch interview with Tae Johnson, May 12, 2008.

[83] Email communication from Natalie S. (pseudonym) to Human Rights Watch, April 16, 2008; Human Rights Watch interview with Thomas P., April 22, 2008.

[84]Garcia-Guzman v. Reno, 65 F. Supp.2d 1077, 1079 (N.D. Cal. 1999).

[85] Human Rights Watch telephone interviews with Andrea Black, Detention Watch Network, Washington, DC, October 26, 2007; attorney Christopher Nugent, Washington, DC, October 31, 2007; Benita Jain, staff attorney, New York Defenders Association, New York, NY, November 7, 2007; Lindsay Marshall, executive director, Florence Project, Florence, Arizona, November 14, 2007; Elizabeth Badger, Political Asylum/Immigration Representation Project, Boston, MA, November 9 2007; Paromita Shah, associate director of the National Immigration Project of the National Lawyers Guild, Washington, DC, December 6, 2007.

[86] Human Rights Watch telephone interview with Eleni Wolfe, immigration attorney, Heartland Alliance, Chicago, Illinois, January 29, 2009.

[87] Although the location of this transferred detainee was not revealed in the OIG’s report (report referenced in footnote 32), Human Rights Watch filed a FOIA request to learn his or her pre-transfer location. Letter to Human Rights Watch in response to FOIA Request No. 2009-073 from Katherine R. Gallo, assistant counsel to the Inspector General, US Department of Homeland Security, April 28, 2009 (letter on file with Human Rights Watch).

[88] Department of Homeland Security, Office of Inspector General, “Review of U.S. Immigration and Customs Enforcement’s Detainee Tracking Process,” http://www.dhs.gov/xoig/assets/mgmtrpts/OIG_07-08_Nov06.pdf, p. 4.

[89] Department of Homeland Security, Office of Inspector General, “Immigration and Custom Enforcement’s Tracking and Transfers of Detainees,” OIG-09-41, March 2009, http://www.dhs.gov/xoig/assets/mgmtrpts/OIG_09-41_Mar09.pdf (accessed November 4, 2009), p. 5.

[90] “Note: INS Transfer Policy: Interference with Detained Aliens’ Due Process Right to Retain Counsel,” Harvard Law Review, vol. 100, June 1987, p. 2001.

[91] Human Rights Watch telephone interview with Eleni Wolfe, January 29, 2009.

[92] Human Rights Watch telephone interview with Holly Cooper, January 27, 2009.

[93] Human Rights Watch telephone interview with attorney Anne Relais, Chicago, Illinois, January 27, 2009.

[94] Human Rights Watch telephone interview with Holly Cooper, January 27, 2009.

[95] Cormac T. Connor, “Note: Human Rights Violations in the Information Age,” Georgetown Immigration Law Journal, vol. 16, Fall 2001, p. 217 (“Body language is of extreme importance to establishing the credibility of a witness…. Numerous studies have shown the overwhelming weight the court places on body language … in American culture, failure to make eye contact triggers feelings of distrust in an observer. Thus, one of the main criticisms of the use of videoconference techniques in the courtroom has been the impossibility of maintaining eye contact…. Furthermore, studies on effective public speakers have found that 90% of persuasive effectiveness comes from the speaker’s physical attractiveness, warmth, sympathy, movements, gestures, clothing, and voice.”).

[96] Human Rights Watch telephone interview with Yarela Hardwood, Brooklyn, New York, January 23, 2009.

[97] Letter from the Executive Office for Immigration Review to Human Rights Watch, July 1, 2008 (letter on file with Human Rights Watch).

[98] Human Rights Watch telephone interview with Holly Cooper, January 27, 2009.

[99] Human Rights Watch telephone interview with John Lawitt, immigration attorney, El Paso, Texas, January 29, 2009.

[100] Human Rights Watch telephone interview with Rebecca Schreve, January 29, 2009.

[101] Human Rights Watch telephone interview with John Lawitt, January 29, 2009.

[102] Human Rights Watch interview with John M. (pseudonym), Florence Service Processing Center, Florence, Arizona, May 1, 2008.

[103] Ibid.

[104] Human Rights Watch interview with Kwan I. (pseudonym), Port Isabel Service Processing Center, Los Fresnos, Texas, April 23, 2008 (interview conducted with telephone interpreter).

[105]Orantes-Hernandez v. Smith, 541 F. Supp. 351, 385 (C.D. Cal. 1982) (preliminary injunction); Orantes-Hernandez v. Meese, 685 F. Supp. 1488, 1511 (C.D. Cal. 1988) (permanent injunction), aff’d sub nom. Orantes-Hernandez v. Thornburgh, 919 F.2d 549 (9th Cir. 1990).

[106] Human Rights Watch telephone interview with Anne Relais, January 27, 2009.

[107]Sasso v. Milhollan, 735 F. Supp. 1045, 1049 (S.D. Fla. 1990) (rejecting detainee’s claim that attorney “will not be able to travel to El Paso, thereby abrogating his right to counsel.”); Dai v. Caplinger, 1995 WL 241861, *2 (E.D. La.1995) (even though there is a “great distance” between Louisiana and California, “[a]s long as petitioners are given reasonable access to the telephones,… they have not been denied their right of access to counsel.”).

[108] Human Rights Watch telephone interview with Thomas S., February 2, 2009.

[109] Schriro Detention Report, October 6, 2009, http://www.ice.gov/doclib/091005_ice_detention_report-final.pdf, p.24.

[110] 8 U.S.C. Section 1362 (emphasis added).

[111] Human Rights Watch interview with Michael M. (pseudonym), South Texas Detention Complex, Pearsall, Texas, April 25, 2008.

[112] Ibid.

[113] Human Rights Watch telephone interview with Zubair A. (pseudonym), Otero County Processing Center, February 11, 2009.

[114] Human Rights Watch interview with Paulette F. (pseudonym), Pinal County Jail, Florence, Arizona, May 1, 2008.

[115] Human Rights Watch interview with Roberto G. (pseudonym), Florence Correctional Center, May 2, 2008.

[116] Human Rights Watch telephone interview with immigration attorney Margarita Silva, Phoenix, Arizona, January 29, 2009.

[117] Testimony of Christina Fiflis on behalf of the American Bar Association, Subcommittee on Border, Maritime and Global Counterterrorism, Committee on Homeland Security, US House of Representatives, on “Crossing the Border: Immigrants in Detention and Victims of Trafficking,” March 15, 2007, http://www.abanet.org/publicserv/immigration/fiflis_testimony_before_subcommittee.pdf (accessed November 4, 2009).

[118] Human Rights Watch interview with Dian K. (pseudonym), South Texas Detention Complex, Pearsall, Texas, April 25, 2008.

[119] Human Rights Watch interview with Javier R. (pseudonym), Eloy Detention Facility, Eloy, Arizona, April 30, 2008.

[120] Human Rights Watch telephone interviews with Megan Mack, American Bar Association, Washington, DC, November 14, 2007; Tom Jawetz, January 8, 2008; Paromita Shah, December 6, 2007.

[121]Committee of Cent. Am. Refugees v. INS, 795 F.2d 1434, 1437 (9th Cir. 1986) (quoting and affirming district court’s statement).