ICE Settles Case Challenging Interference with Legal Representation at Dilley

Washington D.C. - The parties in Dilley Pro Bono Project v. ICE have reached a settlement that ensures access to mental health evaluations for certain detained mothers and children seeking asylum. The case was filed after Immigration and Customs Enforcement (ICE) barred Caroline Perris, a full-time legal assistant with the Dilley Pro Bono Project (DPBP), from entering the South Texas Family Residential Center (STFRC) in Dilley, Texas.

ICE claimed that Ms. Perris inappropriately facilitated a mental health evaluation by telephone in March 2017. She had, in fact, facilitated an evaluation with a mental health professional to avert the imminent deportation of a DPBP client and her child back to the terrible danger from which they fled. The evaluation proved critical to establish their eligibility for protection under U.S. asylum law. In May 2017, ICE for the first time stated in writing a policy requiring pre-approval for telephonic mental health evaluations. The agency retroactively relied on this policy to justify revoking Caroline Perris' access to STFRC.

Because the mothers and children held in Dilley have fled countries with some of the highest levels of femicide and gender-based violence in the world, a mental health evaluation is often a crucial piece of evidence to obtain protection in the United States. For many families, such an evaluation makes a life-or-death difference: safety in the United States versus deportation to targeted violence in their home countries. A mental health evaluation can corroborate past persecution in the home country that currently affects an individual's psychological well-being. Evaluations by mental health providers, which are typically conducted on a pro bono basis and telephonically at the STFRC, also assist attorneys in determining if clients are competent to consent to representation and can participate meaningfully in their cases without safeguards.

ICE's policy placed DPBP legal staff in the untenable position of having to choose between potentially compromising the needs of their clients while awaiting ICE's approval-for which there was no set timetable or standards-or putting themselves at risk of losing access to the facility by providing the legal services they considered to be in their clients' best interests.

Ms. Perris was reinstated shortly after the lawsuit was filed. The settlement, which applies at both the Dilley and Karnes immigration detention facilities, sets forth a timetable for the approval process and limits the grounds on which ICE can deny a request for telephonic mental health evaluation. Specifically:

• Between 7 a.m. and 6 p.m., Monday-Friday, ICE must respond to a request for approval of a new health provider within four business hours. If ICE fails to do so, the request is deemed approved.
• ICE may deny the request only if: the provider's relevant professional license/credential is currently revoked or suspended; the provider has relevant criminal history that indicates a risk of harm or abuse to a detainee; the provider's access to Dilley or Karnes is currently revoked for misconduct that indicates a risk of harm or abuse to the detainee. If ICE denies a request, it must provide sufficient information to permit the requester to independently verify the basis.
• For previously approved providers, Dilley or Karnes Pro Bono Project staff must give two hours' notice that a mental health evaluation will take place.
• If there is disagreement with ICE's assessment, the request can be elevated to the Assistant Field Office Director and/or Deputy Field Office Director.
• The U.S. District Court for the District of Columbia will retain authority for 30 months to adjudicate disputes concerning interpretation and enforcement of the settlement agreement and over the propriety of ICE's denial of a request for a telephonic mental health evaluation.

The DPBP is a consortium of the American Immigration Council, the American Immigration Lawyers Association, the Catholic Legal Immigration Network, Inc., and Texas RioGrande Legal Aid. The plaintiffs were represented by the American Immigration Council, CLINIC and Sullivan & Cromwell LLP.

For press inquiries contact, Wendy Feliz at wfeliz@immcouncil.org or 202-507-7524 or Patricia Zapor at pzapor@cliniclegal.org or 301-565-4830.

Cite as AILA Doc. No. 17081862.