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Access to Counsel Before DHS
The American Immigration Council has long advocated for the right to counsel in immigration settings. In addition to advocating for legal representation in immigration courts, the Council recognizes the importance of counsel to immigrants appearing before the Department of Homeland Security (DHS). Yet the thousands of immigrants who are required to appear at DHS immigration examinations or proceedings every year often face barriers to accessing counsel. Although federal law clearly provides a right to legal representation in many proceedings before DHS, that right is often unrecognized, restricted, or denied.
The Council has worked towards greater access to counsel before DHS and increased transparency in DHS’s access to counsel policies through administrative advocacy and FOIA litigation.
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.DHS and ICE, No. 1:12-cv-00856-JEB (D.D.C. filed May 31, 2012)
The Council’s FOIA request to ICE was met with a series of delays and a failure to produce responsive records. Ultimately, the Council filed suit over one year after submitting its original request, alleging that ICE’s failure to turn over records violated FOIA and impeded our efforts to educate the immigration bar regarding the right to counsel and to effectively advocate for fairness for noncitizens in their interactions with ICE.
Subsequently, ICE produced several thousand pages of documents, although most were evaluations of detention facilities that, in large part, did not address access to counsel. Many of the remaining records were heavily redacted or withheld entirely. After ICE moved for summary judgment, the court found in June 2013 that the agency had not shown that it conducted an adequate search for records and that it failed to provide a sufficient explanation for redacting and withholding records. ICE moved for summary judgment again, and the court denied the agency’s second motion in part in March 2014. Although the court held that ICE had properly withheld or redacted challenged records, it concluded that the agency still had not demonstrated that it conducted an adequate search. Pursuant to a settlement of the lawsuit, ICE agreed to conduct additional searches of its local offices.
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 2000 pages of responsive documents, but withheld or redacted over three quarters of the pages it located. Many of the released documents outline the review and amendment of the Adjudicator’s Field Manual’s (AFM) counsel related provisions. They suggest that advocacy efforts by the Council and the American Immigration Lawyers Association prompted the prioritization of amending the AFM. Among other records of note are directives from 2010 and 2011 regarding the policy of allowing attorneys to sit next to their clients and correspondence regarding one local USCIS office’s now-superseded policy that beneficiaries do not have the right to counsel.
USCIS eventually filed a motion to dismiss the lawsuit. The Council contested the agency’s claims, and in November 2102, the court issued an opinion which agreed in large part with the Council’s arguments, concluding that “USCIS must do better.” The court ordered the government to turn over improperly withheld records and better explain the searches it conducted. USCIS released previously withheld records in January 2013. Pursuant to a settlement agreement, the agency then conducted additional searches and released additional responsive records related to training materials developed to implement update provisions of the AFM.
American Immigration Council v. DHS and CBP, No. 1:11-cv-01972 (D.D.C. filed Nov. 8, 2011)
After the Council filed suit, CBP filed a motion for summary judgment in January, 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 and, in March 2012, CBP moved to withdraw its 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 additional offices at CBP headquarters.
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 previously located documents. The Council challenged CBP's decision to withold or redact several additional records, but the court ultimately ruled in the agency's favor in March 2014. The Council 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 January 29, 2015, the Council submitted comments in response to a request by DHS and the Department of State (DOS) for input on streamlining and improving the U.S. immigrant and nonimmigrant visa systems. In the comments, the Council recommends that DHS amend 8 C.F.R. § 292.5(b) to ensure that individuals in secondary inspection are provided with a regulatory right to counsel during their examination, and that DOS promulgate regulations in 22 C.F.R. Part 40 to provide for meaningful access to counsel during interviews at consular posts.
Previously, in 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 changes to USCIS guidance made in 2012, 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 Synopsis: CBP Restrictions on Access to Counsel (October 2014). The synopsis provides a summary of CBP policies related to access to counsel, based on documents obtained through the Council’s FOIA request and litigation. The summary addresses access to counsel in inspections and CBP detention, and policies on advisals of rights and the treatment of children.
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.
American Immigration Council and Penn State Law’s Center for Immigrants’ Rights Report: Behind Closed Doors: An Overview of DHS Restrictions on Access to Counsel (May 2012). 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 2012 changes to USCIS guidance intended to expand access to legal representation.
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