Denied access to legal rights for ICE detainees in Sheridan sparks federal lawsuit among immigrant attorneys in Oregon against government officials.
On Friday, June 22, American Civil Liberties Union (ACLU) of Oregon and Stoll Berne, a Portland based law firm, filed a lawsuit and an emergency application seeking a temporary restraining order in the U.S. District Court in Portland.
Attorneys on the case are Mat dos Santos and Kelly Simon for the ACLU of Oregon, and Keith Ketterling and Nadia Dahab with Stoll Berne, who are cooperating attorneys on the case on behalf of the ACLU of Oregon.
The lawsuit asks for a restraining order so detainees, an estimated 123 men, housed at the Federal Correctional Institution (FCI) in Sheridan are allowed access to legal counsel, which they have constitutional rights to, prior to any further actions by the government.
The Chronicle has cited most of the following information from the emergency application for a restraining order because it has the same, if not more, detailed information than the lawsuit itself about the attorneys’ previous actions and experiences trying to access detainees in FCI Sheridan.
Pro bono attorneys with Innovation Law Lab and attorney Luis Garcia have on at least five occasions since June 8, been denied access to detainees by Immigration and Customs Enforcement (ICE), the Federal Bureau of Prisons (BOP) and FCI Sheridan’s warden, according to the emergency application. Two of the times, the purpose was to provide requested pro bono representation to one of the plaintiff’s named Sanchez Gonzalez who is an immigrant detainee at FCI Sheridan.
According to the emergency application, “As a result of Defendants’ denial of access, the detainees face summary removal from the United States without the legal assistance to which they are entitled.”
The plaintiffs request that the Court grant their motion for a temporary restraining order and issue an emergency order with five requests.
(1) Provide Plaintiffs with access to FCI Sheridan’s four attorney visitation rooms for a minimum of six hours per day, including weekends, in order to perform group “know your rights” training and individualized interviews;
(2) Install four telephone lines per unit, with each line capable of placing free direct calls to legal service providers, including to Plaintiff Innovation Law Lab;
(3) Allow immigration detainees to access the telephones referred to in (b), above, during facility waking hours, or between 8 a.m. and 8 p.m., seven days a week;
(4) Provide written notice to Plaintiff Law Lab of any scheduled credible fear screenings or asylum interviews;
(5) Allow attorneys to use laptops in accordance with BOP security guidelines while performing legal services on behalf of any immigration detainee in FCI Sheridan.
In the lawsuit filed with the application for the emergency motion for a temporary restraining order, the plaintiffs ask for relief for the same five requests (as above) in the emergency restraining order in addition to an award of attorneys’ fees and costs and an enjoinment of the defendants and their directors “from proceeding with their immigration cases or deporting them until they have been provided an adequate opportunity to individually consult with an attorney.”
FCI Sheridan is a medium security prison that typically houses prisoners serving sentences for criminal convictions, according to the application. The application states that the federal government started transporting noncitizens to FCI Sheridan from other parts of the country on June 8.
In the emergency order, the plaintiffs request “adequate attorney visitation and phone access for immigration detainees” in FCI Sheridan, permission for Plaintiff Law Lab to conduct “know your rights” training for the detainees, “barring Defendants from restricting attorney visitation hours to immigrant detainees” and “barring Defendants from proceeding with the detainees’ cases or deportations until the detainees have an opportunity to consult with an attorney and attend a training by Plaintiff Law Lab.”
If the order is not issued, “immediate and irreparable injury, loss, or irreversible damage will result,” according to the application.
The defendants in the lawsuit are Kirstjen Nielsen, Secretary, Department of Homeland Security; Thomas Homan, Acting Director, Immigration and Customs Enforcement; Elizabeth Godfrey, Acting Field Officer Director, Seattle Field Office of ICE; Jefferson Beauregard Sessions, III, U.S. Attorney General; Hugh J. Hurwitz, Acting Director, Federal Bureau of Prisons; Josias Salazar, Warden, FCI Sheridan Medium Security Prison, in their official capacity only.
The application claims that the “government’s repeated denial of attorney access is unlawful” because of “Long-standing and fundamental principles of constitutional law forbid the government from holding people incommunicado without permitting them an opportunity to communicate with their attorneys.”
According to the plaintiffs’, ICE has stated they will begin asylum interviews June 28.
American Civil Liberties Foundation of Southern California filed a similar lawsuit in the U.S. District Court in Los Angeles on Tuesday, June 19. On Thursday, June 21, Judge Otis D. Wright II of the U.S. District Court in Los Angeles granted a temporary restraining order forcing government officials to give the detainees access to legal help, according to ACLU Southern California.
“The judge also ordered that immigration proceedings, including deportations, be halted until detainees had an opportunity to consult with attorneys or attend a "know your rights" training by the Immigrant Defenders Law Center (Imm Def) non-profit group that provides legal advice to immigrants in Southern California,” ACLU Southern California wrote on their website on Thursday afternoon.
In California, a full hearing on the matter was scheduled for Monday, June 25.
Plaintiffs wrote that many of the detainees “are likely seeking protection under the asylum laws.” According to the lawsuit, the detainees are “incarcerated pending an initial screening known as a “credible fear” interview and, if found to have “credible fear,” pending immigration court proceedings.”
The application states that without legal counsel in preparing for, and as an “accompaniment” to fear interviews with ICE officials, detainees “likely will be unable to pursue meritorious claims for relief and identify defenses to which they are entitled.”
“As a result, they could face a real and imminent risk of deportation and, ultimately, physical harm, violence, or death,” the application states. After a fear interview the noncitizen also needs an attorney for immigration court hearings, among “other potential elements of the individual’s unique case,” according to the application.
Executive Director of Law Lab Stephen W. Manning’s declaration about his experiences and actions are cited the most in the application. Seven immigrant attorneys total have written declarations to support the emergency application and lawsuit.
According to Manning, immigrant detainees in FCI Sheridan were still not able to access telephones on June 14 – despite being there for over a week. “To facilitate free legal calls, as is required for any facility holding immigration detainees by ICE’s Performance-Based Detention Standards, the Law Lab created a toll-free hotline number,” the application states. Manning later learned that despite providing the toll-free number, the detainees in FCI Sheridan could not place free legal phone calls because FCI Sheridan’s phone system, contrary to the Detention Standards, does not allow them, according to Manning’s declaration cited in the application.
On June 14, the Mexican Consulate visited in FCI Sheridan and attorney Luis Garcia was permitted to speak with five Mexican national immigrant detainees, according to the application. All the detainees Garcia spoke to requested asylum relief, yet none had been asked if they wanted to speak with the Mexican Consulate prior to his visit. The application states that “four men were in urgent need of medical care but neither had been traded”, on the day of Garcia’s visit.
The same day as Garcia’s visit, Manning received a list of 13 referrals from the Federal Defender for the District of Oregon Lisa Hay, and the Mexican Consulate for immigrant detainees requesting an attorney. That day, Manning submitted the list along with a list of the legal team members who would be visiting “Sheridan the following day to serve them” to Supervisory Detention and Deportation Officer Chad Allen. According to the application, Allen approved of the visit by e-mail.
The day after, on June 15, as the team members were on their way to FCI Sheridan; Allen informed Manning by e-mail that “the attorneys’ access was denied and that BOP would not permit the attorneys to enter the facility,” the application reads.
Without specified times or weekend access, Manning spoke with Allen by telephone and was “informed that attorney visitation would be limited to a single room for three hours a day, Monday through Friday, that no immigration library materials were available, and that an “ABA know your rights” video would be provided by ICE,” according to the application.
On Sunday, June 17, Manning provided ICE a list of nine individuals who had requested representation, according to the application. On Monday, June 18, attorney Chanpone Sinlapasai talked to Officer Michael T. Louie with Portland’s ICE Office who confirmed that the attorneys would be permitted to visit the nine individuals, according to the application. Around 11 a.m., the attorneys’ access was denied, “notwithstanding Officer Louie’s own earlier assurances to the contrary,” according to the application. The application reads that Louie was “advised that legal visitations would only occur on Tuesday, Wednesday, and Friday from 12:30 p.m. to 3:30 p.m.”
On June 19, Manning received two more referrals from men who had requested an immigration attorney while at FCI Sheridan, the application states.
On Wednesday, June 20, a local immigration attorney from St. Helens, Chelsea Strautman informed ICE that she wanted to “make herself available” for detainees who had requested legal counsel. According to the application, Strautman was also denied access by ICE.
The same day, Godfrey confirmed that the attorneys were authorized to provide “know your rights” training in FCI Sheridan the following day, in a conversation with Sinlapasai, according to the application. The day after, June 21, three of the attorneys were denied access to the facility. One of the attorneys came back in the afternoon to provide “know your rights” training that Sinlapasai had arraigned the day before, but was again denied access, according to the application.
The application reads that as of Friday, June 22, the same day as the lawsuit was filed, the pro bono representation project had received more than 50 requests for representation.
“As of today, only one attorney associated with the project to represent all detained immigrants held at FCI Sheridan has been able to meet with his client. That meeting lasted one hour and was a preliminary consultation. Subsequently, the client was transferred to the North West Detention Center in Tacoma,” the application claims.
The application reads “Attorney representation is often the single most important factor in whether an immigration detainee is able to prevail in his or her immigration case.” Unlike in criminal proceedings, the application writes that “individuals in immigration proceedings are not entitled to appoint counsel if they cannot afford one.“
Even though the detainees are not entitled to appoint counsel at the government’s expense, they have the right to retain legal counsel on their own expense, or as most of them have to, by pro bono attorneys working with nonprofits such as Law Lab.
The application claims that the federal government has prevented detainees from retaining counsel or obtaining any legal assistance, and also preventing legal counsel who has been retained from consulting and communicating with their clients.
According to the application, individuals seeking asylum, assistance of counsel may mean the difference between life and death going forward. Monday, detainees had to participate in asylum interviews or hearings conducted by government officials without the “benefit of legal advise, even though it is available to them.”
The lawsuit and application cited the Due Process Clause of the Fifth Amendment that “safeguards the right of noncitizens” to hire and consult with attorneys. According to the lawsuit and application, the Due Process Clause “requires that detained have adequate opportunities to visit and communicate with retained counsel.” The Defendant’s conduct also “violates the Fifth Amendment’s universal prohibition against holding a prisoner of a detainee incommunicado,” meaning the detainees are denied any communication with people outside of the facility.
The lawsuit and application, also refers to the defendants violation of the First Amendment that “all persons–including this in detention and their attorneys–the freedom of speech.”
According to the lawsuit and application, the “Immigration and Nationality Act (INA) guarantees noncitizens the right to counsel.”
“This protection necessarily entails the right to consult with an attorney in advance of any hearing – especially a hearing which a noncitizen faces potentially permanent removal from the United States,” the application reads.
The plaintiffs also wrote that both ICE ands BOP rules require attorney access for immigration detainees. The lawsuit cited ICE’s Detention Standards, “which govern immigration detainees, provide that “each facility shall permit legal visitation seven days a week, including holidays, for a minimum of eight hours per day on regular business days . . . and a minimum of four hours per day on weekends and holidays.” In addition, the application reads “Detention Standards provide for “know your rights” presentations by authorized nonprofit organizations.”
The lawsuit and application also claims that the defendants are violating the BOP’s standards that also require attorney visits to be available all seven days each week. “Defendants’ unexplained failure to comply with their own procedures constitutes “arbitrary, capricious” conduct in violation of the Administrative Procedure Act.”
On Monday, June 25, Judge Michael Simon of the U.S. District Court in Portland granted the temporary restraining order applied for and adding a requirement so no immigrant detainees can be transported out of the State of Oregon. Another hearing has been scheduled for next week, for the judge to make sure the immigrant attorneys are doing what they promised and that the government officials comply with the restraining order as well. The lawsuit is still pending.
Read the motion for a temporary restraining order here:
Read the lawsuit here: