Access to Counsel Before ICE

The American Immigration Council, with co-counsel Dorsey & Whitney LLP, filed a lawsuit against the Department of Homeland Security (DHS) and U.S. Immigration and Customs Enforcement (ICE) to compel the release of records relating to noncitizens’ access to counsel. The Council initially pursued disclosure of these records through a FOIA request filed in March 2011. Despite the importance of counsel to immigrants appearing before DHS, the thousands of immigrants who are required to appear at agency examinations or proceedings every year may face barriers to accessing counsel. Federal law clearly provides a right to legal representation in many proceedings before DHS, but that right is often unrecognized, restricted, or denied.

The Council’s FOIA request to ICE was met with a series of delays and a failure to produce responsive records. Ultimately, the Council filed suit, alleging that ICE’s failure to turn over records violated FOIA and impeded our efforts to effectively advocate for fairness for noncitizens in their interactions with ICE. -- Subsequently, ICE produced several thousand pages of documents, although most were evaluations of detention facilities that, in large part, did not address access to counsel. Many of the remaining records were heavily redacted or withheld entirely. After ICE moved for summary judgment, the court found in June 2013 that the agency had not shown that it conducted an adequate search for records and that it had failed to provide a sufficient explanation for redacting and withholding records. ICE moved for summary judgment again, and the court denied the agency’s second motion in part in March 2014. Although the court held that ICE had properly withheld or redacted challenged records, it concluded that the agency still had not demonstrated that it had conducted an adequate search. Pursuant to a settlement of the lawsuit, ICE conducted additional searches and produced records from its local offices.