OBSTACLES TO DUE PROCESS FOR IMMIGRANTS WHO ARE DETAINED,
which are also extra costs associated with representing detained immigrants, which makes it more difficult to find lawyers willing or able to represent detained immigrants
When a person is detained (incarcerated) in an immigration “detention” facility, it is much more difficult to represent that person, for many reasons.
It is impossible to quantify isolation, depression or even despair, as well as the radical disruption of family, and the many ways in which it is harder to communicate and properly prepare for hearings.
It’s easier to quantify the material, logistical, and financial difficulty; s of representing a detained person, all of which are much greater than if the person was not locked up.
Travel* Many immigration detention facilities, and the “courts” that are sometimes in them, are in areas remote from large urban areas. There are relatively few lawyers to serve the people in these prisons. There is often no public transportation, making it difficult for family members, other potential witnesses, and potential advocates to get to the centers.
Visting/conferring Spaces to visit — whether for “regular” or “legal” visits — are often extremely limited. In most of these immigration prisons, family members and friends cannot touch each other, but only talk separated by walls, sometimes only through phones. (In what way, I wonder, are these “detention centers” not prisons?)
San Antonio Immigration District
“Court” in Karnes City: There is a room in the Karnes County Civil Detention Center that serves as a “court.” “Court” inside the detention center is therefore also 109.5 from my office in Austin. I am using quotation marks around the term “court,” because judges do not (in my experience) go to Karnes City. In the Karnes City ” courtroom” you will find the immigrants scheduled for court that day, a desk, a correctional officer serving as a bailiff, and video equipment. An immigrant’s lawyer, if he has one, may or may not be there with her client. (The vast majority of immigrants are not represented, however.)
Court in San Antonio: The judge is normally in the San Antonio Immigration Court along with the lawyer for ICE, the clerk of the court, and the court interpreter, if necessary. The immigrant’s lawyer may choose to be in Karnes City with her client, or to be with the judge and court personnel in the San Antonio Immigration Court. The San Antonio Immigration Court, 78.8 miles from my office, is a real court, on a real street in San Antonio, not a prison, jail, or “detention center.” It is infinitely more pleasant and civilized — for the lawyer — to go to a court passing only through a regular security check (metal detector, sign in, show identification) rather than numerous metal locking doors. A lawyer also has the option of bringing in her phone, laptop, or other electronic devices (although of course she will turn these all off before the court is in session). After court, a lawyer might perhaps have lunch or other refreshment in lovely San Antonio. The only problem is that detained immigrants do not get to go to this real court.
The judge in a recent case advised me that she would prefer that I represent the client in front of her in San Antonio, but that I was free to be with my client in Karnes City. Neither option is a good one. After much discussion with my client, his family, and other lawyers, I decided to go to Karnes City to be with my client during his hearing. I am glad I did. As it turned out, the San Antonio judge originally handling the case was not available, so a judge from the head office of the Executive Office for Immigration Review took over. The resulting video hearing involved people in three places: my client, a witness, and I were in Karnes City; the Trial Attorney for ICE was in San Antonio; and the judge and his clerk were in Arlington, Virginia. In spite of the surreal situation and many interruptions when one of the three locations would lose connection with the other, the outcome of the case was good.
• The South Texas Detention Center at 566 Veterans Drive in Pearsall is 133.6 miles from my office in Austin. It’s closer to lawyers in San Antonio or Laredo. The private, for-profit corporation, GEO, runs the place. ICE officers are also onsite, as are ICE legal counsel.
Lawyer visits: This detention center (prison) has the capacity to detain (incarcerate) 1902 people. There are four rooms in which lawyers are allowed to meet with their clients. Frequently, a visit to the Pearsall prison involves signing in and then waiting two or three hours, or more, to meet with a client.
Court: There is an immigration court is inside the detention facility in Pearsall. The good part about this arrangement is that the client, lawyers, judge, interpreter, and court clerk are all in the same room.
The bad part about this arrangement is that — well, it boggles the mind that a “court” can be inside a “detention center,” which we could more accurately call a prison.
The court is not really open to the public, although it is supposed to be. Immigration court hearings are supposed to be public, unless there are special circumstances involving particularly sensitive material. ICE, however, sometimes exercises its muscle by denying people access to the court. It is appropriate for ICE to make decisions that can override those of the private contractor, the Geo Group. It is completely wrong for ICE to override the immigration court, however. The U.S. Department of Justice and the U.S. Department of Homeland Security are supposed to be equal. In practice, they are not.
Perhaps you have heard this riddle. Question: Where does a 300-pound gorilla sit? Answer: Wherever it wants.
Yes, this riddle is unfair to gorillas, who are gentle creatures.
Houston Immigration District
• The Joe Corley Detention Center in Conroe is 199.6 miles from my office in Austin. It’s closer to lawyers and advocates in Conroe or Houston. ICE has a contract with the GEO group, the private, for-profit corporation, to run this prison.
Court: Currently, people detained in Joe Corley “go to court” only by video camera. Such an immigrant is not likely to see an immigrant judge in person. Instead, the hearing will take place by videoconferencing. The judge will be at an Immigration Court at 5520 Greens Road in Houston, which is 178.2 miles from my office.The judge, Trial Attorney for ICE, any witnesses, and their own lawyers must go to Houston, while the client himself is alone at Joe Corley.
This pathetic excuse for due process bears repeating: an immigrant’s lawyer goes to the Greens Road immigration court to represent her client. Her client is not present! Unlike Pearsall, where the court is inside the prison; unlike Karnes City, where the lawyer has the option to be with her client or go to the actual San Antonio immigration court; and Robstown, where the client will meet her lawyer for court at the Port Isabel Service Processing Center (as long as the private prison company remembers to bring her to court), an immigrant locked up in Joe Corley will not have the opportunity to be in court with his lawyer. Everyone will be at the hearing at Greens Road, EXCEPT the person whose fate is to be decided at the hearing (at least, last I knew). This arrangement obviously deprives the client of the ability to consult with his lawyer during a hearing and detracts from the judge’s ability to fairly assess the credibility of the client.
This is a systemic problem, of course, rather than the fault of any individual judge.
The last time I complained about a hearing taking place as the judge consciously excluded the client, I was held in contempt and briefly jailed (Kerrville County Constitutional Court, 1993). I look forward to the opportunity to protest again. This practice is just wrong.
The regular immigration court in Houston is at 600 Jefferson Street, Suite 900, Houston, Texas, 77002-7335. Detained immigrants, however, do not get to go there.
Harlingen Immigration District
• Coastal Bend Detention Center in Robstown is 214.9 miles from my office in Austin. It’s closest to Corpus Christi or San Antonio. This old jail is pretty much a horrible pit. Here are some photos that I took from outside in November 2013. Of course, a regular person is not allowed to take photographs inside.
Court: The Immigration Court handling cases of women incarcerated at Coastal Bend is in Port Isabel or Harlingen, Texas. The private company that runs Coastal Bend Detention Center, LCC Corrections, is supposed to transport these women to the Port Isabel Service Processing Center. However, we once drove to Harlingen to file the necessary pleadings with the court, and then to Port Isabel for the hearing, only to learn that LCC Corrections had not brought any women to Port Isabel for their hearings that day. All of the cases of those women were either resolved without the women themselves being present at their own hearings, or rescheduled. ICE blamed LCC Corrections for the error, and LCC Corrections blamed ICE, claiming ICE never gave them “the list” of women to be driven to court that day.
The closest major city to Port Isabel is Brownsville.
If the Trial Attorney for ICE is not prepared — for instance, if she or he does not have the file because it is in another location — the hearing will be rescheduled. Ditto with a situation in which ICE or the private, profit-making corporation responsible for incarcerating the immigrant fails to bring the person to court for her hearing. Costs of going back for a rescheduled hearing are borne, of course, by either the client or, in a pro bono case, the lawyer — not the person or persons who made the error.
Filing pleadings with the immigration court:
First, you need to make sure that the place you’re trying to file pleadings, where the “court” is scheduled, is a real court. The first time you receive a notice for a hearing to take place in Karnes City, for example, you might think you are going to a real court, and that you can file pleadings at that court. No. You file the pleadings in San Antonio, at the real court. Ditto with the Port Isabel Service Processing Center in Port Isabel. The “court” is in Port Isabel, but you need to file your pleadings in Harlingen. By contrast, even though the Pearsall immigration court does not seem exactly like a real court (because it’s inside a prison and not just anyone get in there), there is a clerk’s office there, and you not only can file your pleadings there, but you must do so. Yes, it’s confusing.
It is essential that a lawyer or someone working with her hand-deliver all filings to the immigration court personally while the court is open so that the court can “file-mark” her copy of the pleading, OR send pleadings by certified mail, return receipt requested, OR send pleadings by Federal Express or a similar private service. Why? Immigration judges and ICE attorneys frequently tell lawyers that they have not received pleadings. The lawyer MUST be able to prove that she filed the pleadings with the court, and served them on ICE counsel, in a timely manner.
Every pleading must be go both to the court and to the opposing counsel, here, ICE. That is a essential, legitimate and fair rule, but understand that it does double the cost of mailing or using a service such as Federal Express to file any pleading. Recall that the immigration court is under the Executive Office of Immigration Review, part of the U.S. Department of Justice. ICE, on the other hand, is part of the U.S. Department of Homeland Security. They are completely separate organizations.
Each time a lawyer files anything with the court, therefore, costs a minimum of $14.00.
These costs apply whether an immigration client is in detention or not, although things seem to be especially confused when the court is inside a detention center (prison) run by a private corporation or when a case is “held” in two or more places.
• Personal service
Cost of travel
The fees for certification and return receipt are in addition to whatever it would cost to mail the pleading and its attachments. Many pleadings are extensive and therefore heavy.
Recently I sent a typical short pleading to arrive overnight in Pearsall, one package to the ICE lawyers and one package to the court. The immigration court and ICE are separate entities, remember, and so I needed to send two separate packages, although they were going to the same building. The cost from Austin was $24.00 per package, or $48.00. The advantage is that I was able to track the package and prove that it was delivered in a timely fashion. The downside, in addition to cost, is that the court still said that the package did not arrive in a timely fashion, so that I was forced to print out and copy extra copies of the pleading, and provide copies of the Federal Express customer air bills and tracking record.
The court may have been right, of course, that it never received the pleading. Federal Express tracking only tells me that my package was delivered to the South Texas Detention Center reception desk 1t 566 Veterans Drive in Pearsall; I can’t prove that the package made it the few extra yards to the clerk’s counter. The only way I could be sure of that would be to deliver the materials myself. But it’s pretty pathetic to not be able to rely on the U.S. mail or Federal Express!
You may be wondering: why would a conscientious lawyer need to ever send anything by Federal Express? What kind of professional would leave this work to the very last minute?
Well, first of all, clients do not always find lawyers quickly. The demand for representation far exceeds the need. Immigrants and their families will typically make many phone calls before ever reaching anyone willing to take their case. Most immigrants do not succeed in finding legal representation. For those who do, deadlines may have already passed, or are about to pass, and everything needs to happen in a big hurry and under great pressure.
Second of all, it is very typical to receive notice of an immigration court hearing the day of a hearing, the day after a hearing, or (at best) a day or two before the hearing. I recently received a letter from ICE dated June 13 that arrived on June 30; I received a notice of hearing for July 8 on July 10.
Postmark dates are not even reliable, as I have received mail from an immigration court postmarked weeks before it could possibly have been written. Click here to read a PDF of a letter I wrote on this subject and here for the affidavit that supplements the letter. The original letter was on my letterhead.)
There are other ways to find out next hearing dates — principally by checking the “case status line” or calling the court — but these methods are also imperfect. The “case status line” — and indeed all the electronic functions of the immigration courts — were “down” for many weeks this spring (2014).