AILA and Others Sue to Challenge Lack of Access to Counsel in Immigration Detention

April 11, 2020

The U.S. District Court for the Central District of California issued a temporary restraining order, given the COVID-19 pandemic, granting relief to individuals detained in Adelanto ICE Processing Center, which can house up to 1,900 individuals, through April 25, 2020, and asked the government to show cause by April 20, 2020, as to why the judge should not convert this order into a preliminary injunction. (Torres, et al. v. DHS, et al., 4/11/20)

Relief granted:

1. Defendants shall promptly remove the positive acceptance requirement for telephone numbers provided by Plaintiffs and for any other attorney or legal organization that so requests.
2. Defendants shall create, implement, and advertise a process by which both attorneys and Adelanto detainees may initiate requests for free confidential telephone calls from the 21 visitation rooms available for that purpose. Defendants should schedule most calls between 8 a.m. and 8 p.m., and attorneys should give Defendants 24 hours’ notice.
3. Given the limited number of visitation rooms, calls made to designated attorney numbers from telephones located in the common areas of the housing units shall be unrecorded, unmonitored, and free of charge. Defendants shall create, implement, and advertise a process by which attorneys may so designate their numbers. Requests from attorneys to designate numbers included on their Attorney Licensee Profiles on the California State Bar website, or out-of-state equivalent, must be approved within 24 hours. All other requests should be ruled on within three days.
4. Defendants shall create a drop box for detainee correspondence outside the front door of the facility, permitting attorneys (or couriers) to leave envelopes without triggering the PPE requirement to enter Adelanto.
5. Defendants shall continue their stated efforts to promptly convey messages left by attorneys with Adelanto lobby staff to have particular detainees call them;
6. Contact and non-contact attorney visits, including with medical evaluators and translators approved by regular Deportation Officer (“DO”) channels, shall be allowed at Adelanto, subject to the most current ICE guidance.
7. The above relief shall be available to detained immigrants who are quarantined or cohorted.
8. Defendants shall provide numbers to DO employer-provided mobile phones and a phone tree, which may include last names and first initials only. These telephone numbers shall be disclosed only to attorneys and their staff who represent Adelanto detainees in legal proceedings. The numbers are not to be disclosed to any third parties and shall be used only in connection with legal representation. Defendants shall also develop an anonymized email system for Adelanto DOs, or show cause on April 20, 2020, why such an email system cannot be created.
9. DOs shall make every effort to respond within 24 hours to requests to facilitate attorney visits with accompanying medical evaluators and translators, to requests for confirmation of receipt of documents relevant to the pandemic, and to requests regarding detainees who will be released on bond or humanitarian parole.

For more information, check out the press release sent out by ACLU Southern California, In Light of COVID-19, Court Overturns ICE’s Policies That Had Blocked Detainee/Lawyer Communication at Adelanto, and this Los Angeles Times article, Judge rules ICE must allow detainees free, private calls with attorneys during pandemic.

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March 26, 2020

The plaintiffs seek temporary emergency relief to ensure that immigration detainees at the Adelanto ICE Processing Center have basic access to counsel during the COVID-19 pandemic. At present, the federal government is proceeding with Adelanto detainees’ immigration cases, including bond hearings at which their liberty is at stake and final merits hearings at which they may be ordered deported. Defendants have nonetheless instituted polices related to COVID-19 that effectively prevent any in-person visitation. These policies compound the serious pre-existing barriers that unlawfully restrict Adelanto detainees’ access to the outside world—including Defendants’ limits on access to outgoing telephone calls, prohibition on incoming legal calls, prohibitively expensive phone rates, and denial of confidential calls—that have made it effectively impossible for legal counsel and detainees to prepare for these critical hearings. Plaintiffs, having learned of these policies on March 21 and March 24, 2020, now therefore seek emergency relief from this Court.

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October 24, 2019

On October 24, 2019, the district court denied the majority of the defendants’ motion to dismiss in Torres.

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December 14, 2018

The American Civil Liberties Foundation of Sothern California, the Immigrants’ Rights Clinic at Stanford Law School, and the Sidley Austin law firm on behalf of three named plaintiffs, AILA, and the Immigrant Defenders Law Center filed a U.S. District Court complaint against ICE, the Orange County Sheriff’s Department, and the private prison operator Geo Group, Inc., challenging barriers to communicating with counsel at three detention facilities in southern California: Theo Lacy, Adelanto, and Musick. (Torres, et al., v. DHS, et al., 12/14/18)

This action seeks to end the unlawful and unconstitutional barriers to attorney access and attorney-client communication for detained noncitizens in Southern California. Defendants Immigration and Customs Enforcement (“ICE”), the Geo Group, Inc. (“GEO”), and the Orange County Sheriff’s Department (“OCSD”) (collectively, “Defendants”) incarcerate thousands of noncitizens in this District contesting deportation in civil administrative proceedings. Defendants ICE and GEO confine these individuals in a private prison located in Adelanto, California, the Adelanto ICE Processing Center (“Adelanto”). Defendants ICE and the OCSD confine noncitizens in two jails in Orange County—the Theo Lacy Facility (“Theo Lacy”) and the James A. Musick Facility (“Musick”) (together with Adelanto, “the immigration detention facilities”).

This class action challenges Defendants’ unlawfully restrictive telephone, visitation, and mail policies and practices. Defendants’ policies and practices violate detained noncitizens’ rights under the Immigration and Nationality Act, the Fifth Amendment’s Due Process Clause, the First Amendment, and the Administrative Procedure Act. Defendants’ policies and practices also violate Attorney Plaintiffs’ First Amendment right to freedom of speech, expression, and association. But for these policies and practices, many detained noncitizens would be able to successfully challenge their removal and/or understand and protect their civil rights.

Relief pursued:

• provide detained noncitizens the ability to make private, unmonitored, unrecorded legal telephone calls, without being overheard by other immigration detainees or facility staff;
• provide sufficient space and staffing for timely, confidential, and contact legal visits;
• afford detained noncitizens sufficient time to complete legal calls, and establish a process by which detained noncitizens can make legal calls outside of free time;
• implement an adequate process by which attorneys can reliably send messages to and schedule legal calls and visits with detained noncitizens;
• provide reasonable accommodations for detained noncitizens who are indigent and cannot afford to make legal calls, including international calls;
• ensure that telephone service providers are able to connect to all countries;
• provide a cost-effective and functional process for detained noncitizens and attorneys to access remote interpretation services for legal telephone calls and attorney visits; and
• refrain from opening legal mail outside of the presence of detained noncitizens.

Cite as AILA Doc. No. 18121703.