Is the DOJ Moving to Restrict Immigration Detainees’ Access to Attorneys? (Updated)

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Is the DOJ Moving to Restrict Immigration Detainees’ Access to Attorneys? (Updated)

Sofia Resnick

Though the DOJ has signaled in the media that it is merely pausing two legal-assistance programs for people in ICE custody, one legal-service provider said her organization was told the programs are being terminated once their contracts runs out.

UPDATE, May 4, 1:40 p.m.: Following intense pushback, the DOJ has since reversed its decision to suspend the Legal Orientation Program and will continue funding the program while reviewing its cost-effectiveness. Sessions made the announcement at a hearing of the Senate Appropriations Subcommittee on Commerce, Justice, Science, and Related Agencies on April 25.

The U.S. Department of Justice (DOJ) will soon suspend two legal-assistance programs for immigrants when their contracts expire, reportedly to review the programs’ cost-effectiveness.

The Executive Office for Immigration Review (EOIR), which oversees the DOJ’s immigration courts, plans to halt the Legal Orientation Program (LOP) at the end of this month, the Washington Post reported last week. The office also plans to suspend and evaluate the Immigration Court Helpdesk (ICH), a service offered in immigration courts in five major cities, where immigrants who are not detained but facing deportation proceedings can seek out information.

The DOJ currently contracts with the New York-based nonprofit the Vera Institute of Justice to manage these two programs; Vera in turn subcontracts with a national network of 18 legal service providers in more than a dozen states.

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Though the DOJ has signaled in the media that it is merely pausing these programs, the director of one of these subcontractors told Rewire.News that Vera informed them their contracts are terminating as of April 30.

“What we understand is that the program is ending,” said Claudia Valenzuela, the Detention Project director at the Chicago-based National Immigrant Justice Center (NIJC), a partner of Vera’s that serves Illinois and Wisconsin.

Immigrant rights advocates and attorneys have roundly excoriated the DOJ’s decision, saying these programs provide valuable information to immigrant detainees and asylum seekers about the immigration courts process and their own rights. Foreign nationals facing deportation often rely on these free legal information sessions and often do not have access to any other forms of legal counsel, they say. Some see this as a signal of the Trump administration’s sustained hostility toward undocumented immigrants.

There’s also a broader concern about whether the administration is moving to make it even more difficult for people in detention to access attorneys. Already, as ProPublica has reported, a very small percent of detained immigrants have attorneys.

As Vera’s website notes, “Without counsel, a study shows, only 3% of detained, unrepresented immigrants avoid deportation, but providing public defenders can improve an immigrant’s chance of winning and remaining in the United States by as much as 1000%.”

Up to this point, attorneys and advocates told Rewire.News, these programs have created a bridge between immigrant detainees and attorneys. Unlike regular U.S. criminal courts, immigration courts do not have to provide public defenders to defendants who cannot pay for their own legal counsel. That means if detainees cannot find or afford their own counsel, they must represent themselves, what’s known as pro-se. Experts told Rewire.News that for these people, the legal services provided through the LOP and the help desk—while limited in scope—are often the only education and assistance available. Additionally, through these programs, service providers connected clients with pro-bono attorneys willing to represent them in deportation proceedings.

Advocates insist these programs, especially the LOP—which according to the Vera Institute serves more than 50,000 people in 38 large detention centers annually—are a vital resource to a very vulnerable population. (The Detention Watch Center estimates that the United States detains roughly 360,000 people annually “in a sprawling system of over 200 immigration jails,” many of which are not served by the LOP.)

The DOJ could be effectively dismantling that bridge through this decision, as outside of this program, attorneys do not typically have access to the names of detainees who are not already their clients.

“Through the Legal Orientation Program, one thing that is really helpful is that it really helped stakeholder—such as [U.S. Immigration and Customs Enforcement (ICE)], such as the jails, such as the immigration courts—come together to provide [people in detention with] the kind of access [to legal services] that [they] might not otherwise be able to secure,” Valenzuela said. “And so, that’s the other secondary question, is how access will work? We hope that that would not be an issue, but without the formal program in place, I think it really jeopardizes all of that.”

Valenzuela explained that historically, local ICE field offices have had discretion over how to facilitate the legal programs and connect organizations like hers to detainees. She said she is hoping to preserve the good relationship her nonprofit shares with its local ICE office. However, she said she’s concerned ending these programs will further cut off contact to volunteer lawyers who already have trouble reaching detainees.

“Definitely we’ve heard of attorneys having difficulties being able to access folks that they don’t have the name and [Alien Registration Number] of, which is part of some of the fights we have in terms of access to folks,” Valenzuela said.

Carol Anne Donohoe is one such attorney. She works with the Reading, Pennsylvania-based Aldea–the People’s Justice Center, which offers pro-bono legal representation to immigrants and refugees.

Donohoe told Rewire.News in a phone interview that the Berks County Residential Center, a family detention center in Leesport, Pennsylvania, will not give her names of newly detained people. She has to count on word of mouth for detainees in need of legal representation to reach her or fellow attorneys. She did say that the organization that has been providing the Legal Orientation Program at Berks offers limited information, with express permission, to multiple pro bono community organizations regarding individuals who have requested pro bono legal assistance.

The ending of the program distresses Donohoe, she said, because of how isolated and in the dark most people sitting in immigration detention centers already are.

“If LOP wasn’t there, I don’t know that it would change anything for us because we still wouldn’t get a list, but if LOP wasn’t there, then no one would get a list,” Donohoe said. “No one would know.”

In response to a request for comment, an ICE spokesperson said in a statement emailed post-publication: “Moving forward, pro-bono service providers who are willing to conduct Know Your Rights meetings at their own expense will be allowed to schedule group legal presentations independently with [ICE’s Enforcement and Removal Operations] field offices and detention facilities, where they will be able to speak to detainees and provide services and legal information. Detainees will be provided sign-up sheets to register to attend the pro-bono legal group presentations.“

“And as always, any legal service provider that wishes to offer pro-bono representation to immigrant detainees may request that EOIR include them on its List of Pro Bono Legal Service Providers, which is given to all individuals in immigration proceedings,” the statement continued.

Still, legal experts expressed concerns about access to the facilities. Stephen Kang, a detention attorney with the American Civil Liberties Union’s Immigrants’ Rights Project, told Rewire.News, “There’s already so many access issue with facilities; just making a call to someone you are actually representing can be, in some facilities, like this whole multi-day process.”

“I think for pro-se folks—folks who are unrepresented—and just even trying to find a lawyer, I think the LOP often provided a gateway essentially to the outside world, and some level of access to attorneys,” Kang said. “And to have that taken away at the facilities where it operates, given ICE’s current practices, it’s a huge concern.”

Immigration-rights advocates and attorneys are wary of the DOJ’s explanation for suddenly halting these programs.

An immigration court official told the Post anonymously that the federal government wants to “conduct efficiency reviews” and ensure these federally funded programs—currently costing the federal government less than $10 million—are not duplicating efforts within the court system.

But Kang and others find that explanation dubious.

“Pro-se orientations were not perfect, but they were something detainees were given that they couldn’t otherwise get,” he said. “And so to have even that sort of minimal level of protection taken away—you know it’s an $8 million program; it’s a drop in the bucket to the federal budget. It’s just so little to give to detainees and to have that taken away, it’s just really unfortunate.”

The Vera Institute noted that the DOJ conducted a study in 2012 and found LOP to be “a cost-effective and efficient way to promote due process.” Through the orientation program—created during President George W. Bush’s administration in 2003—and the help desk—created in 2016immigrants could learn basic legal information about the immigration system, court processes, the legal rights of immigrants in deportation proceedings, and potential legal pathways to remain in the United States. As the DOJ’s study notes, “detained aliens’ participation in the LOP significantly reduced the length of their immigration court proceedings,” which ultimately benefited the government, as immigration courts are routinely—and especially these days—facing large backlogs.

The Trump administration’s decision to halt these programs—which Valenzuela noted was abrupt—comes shortly after the Department of Health and Human Services’ (HHS) Office of Refugee Resettlement (ORR) told Vera to stop providing abortion information to teens in HHS’ custody. Public outrage eventually led ORR to rescind this directive. 

The DOJ did not respond to requests for comment or clarification about what suspension of these programs really means.

Valenzuela said that she and other LOP partners around the country are scrambling to figure out how to continue providing some of these services. And they are considering various avenues to keep these programs alive, including nudging for congressional action and potentially taking the issue to court.

“I don’t think we can overstate enough the assault on due process rights of immigrants,” Valenzuela said. “It’s been a little overwhelming to take this all in.”

UPDATED, April 20, 8:48 a.m.: This piece has been updated to include a statement from ICE sent post-publication.