Council, ACLU Sue DHS and ICE To Obtain Plans for $10 Million Meant to Improve Legal Access in Detention

This Freedom of Information Act (FOIA) lawsuit seeks to compel the Department of Homeland Security (DHS) and Immigration and Customs Enforcement (ICE) to produce a report prepared for Congress regarding a $10 million appropriation made to improve legal access in detention. 

Immigrants in ICE detention face significant barriers to access to counsel. ICE actively impedes detained people from accessing the most basic modes of communication necessary for attorney-client communication. More often than not, detained immigrants are unable to make free, confidential outgoing phone calls to counsel. At many detention centers, attorneys cannot schedule telephone calls with or leave messages for detained clients. Detained immigrants also face significant challenges sending and receiving mail, and they lack access to email or electronic messaging necessary to communicate with counsel and timely sign essential court documents. These barriers increase the likelihood of prolonged detention and deportation in violation of detained immigrants’ constitutional rights. 

Members of Congress have expressed concern regarding DHS’s systematic failure to ensure that people in immigration detention have the ability to find and communicate with attorneys. Through the Consolidated Appropriations Act of 2023 (“Appropriations Act”), Congress allocated $10 million to DHS “to improve law libraries, update legal materials, provide online legal access, expand video attorney visitation, and facilitate the secure exchange of legal documents between noncitizens and their counsel.”  With these funds, Congress also directed ICE to “brief the [Senate and House Appropriations Subcommittees on Homeland Security] on an expenditure plan for increased legal access within 60 days of the date of the enactment of this Act.”  Because the Appropriations Act was enacted on December 29, 2022, the report was due to Congress on February 27, 2023. 

In May 2023, the ACLU filed a FOIA request for this report and received no records in response to the request within the statutory timeframe. The Council, ACLU National Prison Project, and the New York Civil Liberties Union sued on behalf of the ACLU in the Southern District of New York to compel ICE to respond to the FOIA request.