New ACLU Research Report Shows Immigrants Face Pervasive Barriers to Legal Representation in ICE Detention

WASHINGTON — The American Civil Liberties Union released the first comprehensive research study today on barriers to legal representation in U.S. immigration detention centers nationwide. The authors of No Fighting Chance: ICE’s Denial of Access to Counsel in U.S. Immigration Detention Centers examined conditions at 173 detention facilities around the country, and found that Immigration and Customs Enforcement (ICE) detention facilities have systematically restricted basic modes of communication between attorneys and detained immigrants, deterring attorneys from providing representation to detained people, who are often held in detention facilities in geographically isolated locations. In FY 2022 so far, 79 percent of detained people in removal proceedings lacked counsel.

Key findings, garnered through phone calls to detention facilities and from surveys with immigration attorneys nationwide, presented in the report include:

• At 20 percent of the detention facilities called by researchers, no one ever picked up the phone or operators refused to answer basic questions about attorney access.
• At least 58 ICE detention facilities do not allow attorneys to schedule phone calls with a detained client at a certain date and time.
• Detained immigrants must pay to make outgoing phone calls to lawyers at approximately 85 percent of facilities for which we received responses.
• Attorneys at nearly half of the 44 facilities for which we received attorney survey responses reported arbitrary delays or denial of access to their clients at the facility.
• Attorney respondents at several facilities reported that in-person visits do not take place in confidential settings, destroying attorney-client privilege.

“Not only are these barriers to legal representation unconstitutional – they also increase the likelihood that people will be unlawfully held in prolonged detention or deported,” said Aditi Shah, Borchard Fellow at the ACLU’s National Prison Project and one of the authors of the report. “In that regard, access to counsel can literally be a matter of life or death for people, either by virtue of being held in dangerous conditions for extensive periods or returned to the violence they fled.”

Notably, ICE has failed to conduct even the most basic oversight or data collection on detention facilities’ compliance with standards for attorney-client communications. The ACLU recommends the Department of Homeland Security (DHS) ultimately phase out the immigration detention system and invest in community-based social services as alternatives to detention. In the meantime, the ACLU urges DHS to ensure access to private, confidential, free, and scheduled access to legal communication and in-person visits in detention, and to conduct proper oversight of access to counsel at all ICE detention facilities. The ACLU also recommends Congress pass legislation to reduce funding for ICE detention, and ensure that DHS removes barriers to legal access.

The report is online here:

www.aclu.org/nofightingchance