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Detainee Transfers Bounce People Around

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The Latest Impediment for an Immigrant’s Right to Legal Counsel

By William Shwayri – Law student Intern for Beach-Oswald Immigration Law Assoc. PC
Detained immigrants

Photo courtesy of publik15 via Flickr

Although US and international human rights law allows for detained immigrants to have access to legal counsel, several impediments exist with regards to a detained immigrant’s rights to appropriate legal counsel. In the Criminal Justice System, the American tax payer often foots the bill for detained individuals to have access to legal counsel. Because of Immigration and Custom Enforcement’s (ICE) arbitrary system of detainee transfers, not only are American tax payers in many ways footing the bill as such transfers cost $366 million last year, but additionally, the right of legal counsel for transferred detainees is severely impacted.

According to a new report from Human Rights Watch, A Costly Move, between 1999 and 2010 over 1,000,000 detained immigrants were transferred from one detention center to another. Many detained immigrants were moved on multiple occasions leading to over 2,000,000 individual transfers in the same period. The report noted that one detainee was transferred over 66 times. The average transfer distance is 370 miles but often times detainees are transferred between detention centers in Pennsylvania and Texas – a distance covering more than 1,600 miles.

The transferring of detainees has a direct impact on the ability of the detainees to have access to legal counsel, thereby increasing their struggles and difficulties with the immigration system. Legal representation for immigrants begins in their original location, but after being transferred, it becomes increasingly difficult for attorneys to represent the transferred detainees. Additionally, their ability to present witnesses and evidence is also directly hampered as the necessary evidence and witnesses can be over several hundred miles away. Detainees are often transferred prior to a bond hearing. Because of this, their likelihood of remaining in detention increases significantly as their ability to retrieve witnesses to testify on their ability to cooperate with immigration authorities is severely hindered. Transferred detainees were held on average 3 times longer than those that weren’t transferred.

Often times, transferred detainees are forced to deal with harsher laws as well. The largest number of transferred detainees are sent to states comprising the Fifth Circuit, which includes Louisiana, Mississippi, and Texas. This change of venue for the detainees has a direct impact on their ability to remain in this country as the Fifth Circuit has a well known reputation for decisions that are adverse to non-citizens.

Human Rights Watch advocates for several recommendations to deal with the problem including delaying transfers until after a bond hearing, building new detention centers in locales that need them, revising detainee procedures to not transfer detainees who have family members and important witnesses in a particular area, and giving the counsel of transferred detainees increased access to their clients through video or telephone.

Given the excessive use of detainee transfers, Immigration Lawyers are unable to provide their detained clients the comprehensive legal services that they deserve. Many times, Immigration Lawyers cannot appropriately locate what detention center their client was transferred to.  The Providence Journal reported on June 15, 2011 a case where a lawyer in Pawtucket, Rhode Island was unable to locate his client. Although his client was originally in a detention center in Dartmouth, NH, he was eventually transferred three times until finally arriving at a detention center in Texas. By the time his attorney was able to contact him, the detainee had signed away his due-process rights in a hearing and was deported.

The financial and logistical difficulties that all immigrants face with the American judicial system must be reduced and reform is necessary. The problems for transferred detainees are dramatically increased as both their families and attorneys have to expend serious resources with little assistance from the government in locating and assisting the transferred detainees.  In order to insure appropriate legal representation for immigrants, which is already an obstacle for many of them because of INA 292 which states that legal representation must be at no cost to the government, ICE must remove all obstacles for immigrants to have suitable access to legal counsel. This includes unnecessary and arbitrary transfers.

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