Highlighting data from the American Immigration Council's report "...
Access to Counsel Before DHS
The American Immigration Council has long advocated for the right to counsel in immigration settings, including meaningful access to legal representation in immigration court and DHS proceedings.
On May 31, 2012, in an effort to improve access to counsel before CBP, ICE and USCIS, the Council and Penn State Law’s Center for Immigrants’ Rights released the report, Behind Closed Doors: An Overview of DHS Restrictions on Access to Counsel. The report describes restrictions on access to legal representation before DHS, provides a legal landscape, and offers recommendations designed to combat DHS’s harmful practices. It also addresses recent changes to USCIS guidance that are intended to expand access to legal representation.
The report includes anecdotes from immigration attorneys across the country indicating that CBP, ICE and USCIS often interfere with noncitizens’ access to counsel in benefits interviews, interrogations, and other types of administrative proceedings outside of immigration court. Depending on the context, immigration officers completely bar attorney participation, impose unwarranted restrictions on access to legal counsel, or strongly discourage noncitizens from seeking legal representation at their own expense.
The Council also pursued FOIA litigation to compel the release of DHS records relating to noncitizens’ access to counsel in interactions with the immigration agencies. The Council released a summary of CBP's policies restricting access to counsel based upon the documents released in response to the FOIA litigation. See summaries of these lawsuits below.
FOIA Suits Seeking DHS Access to Counsel Records
The Council has filed three lawsuits against DHS to compel the release of records relating to noncitizens’ access to counsel before USCIS, CBP, and ICE. The Council initially pursued disclosure of these records through FOIA requests filed in March 2011.
Dorsey & Whitney LLP is co-counsel with the Council on these FOIA cases.
Suit Against ICE
American Immigration Council v. ICE, No. 1:12-cv-00856-JEB (D.D.C. filed May 31, 2012)
The Council filed suit over one year after submitting its original FOIA request to ICE and after receiving no substantive response from the agency. The agency initially indicated that it had no responsive documents, but then on appeal, conceded that its search had been inadequate and renewed a search for documents. The Council has been forced to file three administrative appeals. These appeals and ICE’s decision to reprocess the same FOIA request as though it were a new request have resulted in additional delay.
The complaint alleges that ICE’s failure to turn over requested records violates FOIA and is impeding the Council's efforts to educate the immigration bar regarding the right to counsel and to effectively advocate for justice and fairness for noncitizens in their interactions with ICE.
In its first production of documents on August 13, 2012, the agency provided 1084 pages of records, many of which were heavily redacted or withheld entirely, claiming that FOIA exemptions protect full disclosure. It subsequently released several thousand records related to detention facilities, which the Council is not challenging. ICE then moved for summary judgment. On June 24, 2013, the court denied ICE’s motion for summary judgment. The court held that that the agency did not show that it had conducted an adequate search for records and that it failed to provide a sufficient explanation for redacting and withholding records. ICE renewed its motion for summary judgment in November 2013, which the court again denied on March 5, 2014. Although the court held that ICE had properly withheld or redacted records, it concluded that ICE still had not demonstrated that it had conducted an adequate search for responsive records. The court also ordered ICE to turn over one previously withheld record. Following the decision, ICE agreed to conduct additional searches of local offices for responsive records.
Suit Against USCIS
American Immigration Council v. DHS and USCIS, No. 1:11-cv-01971 (D.D.C. filed Nov. 8, 2011)
In response to the suit against USCIS, the agency determined that it had over 2042 pages of documents responsive to our request. However, USCIS released only 455 pages in their entirety. It withheld 1169 pages and released 418 pages with redactions, claiming FOIA exemptions protected the records from disclosure.
Many of the released documents are email exchanges detailing the review and amendment of the Adjudicator’s Field Manual’s (AFM) counsel related provisions. The records reveal that attempts to amend the AFM have started and stalled on numerous occasions over the past six years. The records also suggest that recent advocacy efforts by the American Immigration Council and the American Immigration Lawyers Association prompted the prioritization of amending the AFM. In addition, among other records of note are directives from 2010 and 2011 regarding the policy of allowing attorneys to sit next to their clients and USCIS headquarter’s concern that this policy is not being followed and email correspondence regarding one field office’s now-superseded policy that beneficiaries do not have the right to counsel.
On May 31, 2012, USCIS filed a motion to dismiss and for summary judgment, arguing that (1) it conducted an adequate search for responsive records, and (2) it properly withheld and redacted records under the FOIA exemptions. The Council contested both of these assertions in its opposition. On November 27, 2012, the court issued an opinion in which it agreed in large part with the Council. The court found that “[t]he affidavit meant to demonstrate the adequacy of USCIS’s search for responsive records discloses almost nothing about the search itself.” Further, USCIS’s attempted justification for withholding two-thirds of the contested records “oscillates between sloppy and misleading.” The court concluded that “USCIS must do better.” It ordered the government to turn over the improperly withheld records and submit a new affidavit to demonstrate the adequacy of its search for records. USCIS released the records on January 31, 2013.
In March 2013, the Council and USCIS settled the lawsuit. Pursuant to the settlement, USCIS conducted additional searches for records, including training materials it developed to implement the 2012 changes to the Adjudicator’s Field Manual sections, “Representation and Appearances” and “Interview Techniques.” USCIS released additional responsive documents in the spring and winter of 2013.
American Immigration Council v. DHS and CBP, No. 1:11-cv-01972 (D.D.C. filed Nov. 8, 2011)
CBP filed a motion for summary judgment on January 26, 2012, asserting that it had conducted a reasonable search, but was unable to uncover any records responsive to our request. The Council opposed CBP’s motion on the grounds that the agency failed to demonstrate that it had conducted an adequate search for responsive documents. In support of our opposition, we submitted a significant number of responsive documents that CBP had failed to produce.
On March 22, 2012, CBP moved to withdraw its summary judgment motion and to conduct a nationwide search for responsive records that would “involve over 300 Ports of Entry, approximately 130 Border Patrol Stations and 20 Border Patrol Sectors, CBP Field Operations Offices as well as the following additional offices at CBP headquarters: Office of Training and Development, Office of Diversity and Civil Rights, Office of Policy and Planning, and Office of Executive Secretariat.” CBP released several productions of responsive documents in late 2012 and early 2013. Following discussions with the Council, CBP then conducted additional searches of certain local offices, produced additional records, and released less redacted versions of certain previously located documents. Following discussions with the Council, CBP then conducted additional searches of certain local offices, produced additional records, and released less redacted versions of certain previously located documents. The Council has released a summary of the documents obtained from CBP, which show a lack of detailed nationwide guidance and suggest that CBP policies and practices on access to counsel in primary, secondary, and deferred inspections and CBP detention vary from one office to another.
On May 31, 2012, the Council and Penn State Law’s Center for Immigrants’ Rights released the report, Behind Closed Doors: An Overview of DHS Restrictions on Access to Counsel. The report describes restrictions on access to legal counsel before DHS, provides a legal landscape, and offers recommendations designed to combat DHS’s harmful practices. It also addresses recent changes to USCIS guidance that are intended to expand access to legal representation. The Council held a teleconference highlighting the key issues in the report.
In a March 24, 2011 letter, the Council and AILA urged USCIS to address reports of widespread and recurrent restrictions on access to counsel. These restrictions, documented in a nation-wide survey of immigration attorneys, included limitations on attorneys’ ability to communicate with their clients, restrictions on attorney seating during USCIS interviews, and limitations on attorneys’ ability to submit documents to the interviewing officer.
On May 11, 2011, after meeting with the Council and AILA to discuss the issues raised in the letter, USCIS responded that the agency was taking steps to improve access to counsel and requested that the Council and AILA recommend changes to USCIS guidance.
On June 14, 2011, the Council and AILA provided specific recommendations for changes to the USCIS Adjudicator's Field Manual (AFM) to better to safeguard the attorney's role in USCIS interviews.
In an August 8, 2011 letter, USCIS expressed appreciation for the Council’s comments and suggestions.
On December, 21, 2011, USCIS issued an interim memo, “The Role of Private Attorneys and Other Representatives; Revisions to Adjudicator’s Field Manual (AFM) Chapters 12 and 15; AFM Update AD11-42.” The Memo provided amendments to the counsel provisions of the AFM and invited comment from stakeholders.
On February 14, 2012, the Council and AILA issued comments to the Interim Memo. The comments recommended, among other things, that USCIS take additional steps to clarify the role of attorneys and the treatment of attorneys’ written submissions; to address continued limitations on attorney seating; to expand the requirements related to waivers of representation; and to improve the complaint process.
On May 23, 2012, following the comment period, USCIS issued final amendments to the AFM, “Representation and Appearances and Interview Techniques; Revisions to Adjudicator’s Field Manual (AFM) Chapters 12 and 15; AFM Update AD11-42."
In an August 8, 2011 letter, the Council and AILA urged ICE to address reports of restrictions on access to counsel in a range of interview settings. These restrictions, documented in a nation-wide survey of immigration attorneys, included complete bars to attorney presence during ICE interviews and limits on participation when attorneys are permitted to be present. Attorneys also reported that ICE officers often were antagonistic toward attorneys.
In a May 11, 2011 letter, the Council and AILA urged CBP to address restrictions on access to counsel. These restrictions - documented in a nation-wide survey of immigration attorneys - included limitations on attorneys’ access to their clients in secondary and deferred inspection. In instances where attorneys were able to accompany their clients, CBP officers limited the scope of representation. Attorneys also reported that CBP officers prevented attorneys from providing relevant documentation and sometimes adopted an adversarial approach.
On July 13, 2011, CBP responded to the May 11 letter stating that CBP “maintains a positive relationship with the vast majority of legal representative who are permitted to accompany their clients to deferred inspections,” and that the inspection process will “primarily be limited to the inspecting officer . . . so as not to diminish the efficiency and integrity of the inspection.”
American Immigration Council Practice Advisory: Challenging Matter of E-R-M-F- & A-S-M-: Warrantless Arrests and the Timing of Right to Counsel Advisals (November 2, 2012). In Matter of E-R-M-F- & A-S-M-, 25 I. & N. Dec. 580 (BIA 2011), the Board of Immigration Appeals severely undermined the protections provided by 8 C.F.R. § 287.3(c), holding that certain noncitizens arrested without a warrant need not be advised of their rights, including the right to counsel, prior to post-arrest examinations. This practice advisory highlights flaws in the E-R-M-F- decision and suggests strategies for challenging the BIA’s reading of § 287.3(c) and moving to suppress evidence obtained in violation of the regulation.