No Unfettered Right to Counsel



According to NBC News, the Refugee and Immigrant Center for Education and Legal Services (RAICES) has filed a complaint with U.S. Immigration and Customs Enforcement (ICE) alleging that ICE is “blocking detained immigrants from free legal services.”

RAICES claims that, ““ICE drastically changed its policies recently in a way that significantly limits the ability of pro bono attorneys to work with detained persons” detained at the Karnes detention facility in Texas.

So, what exactly did ICE do to prompt the complaint?

  • ICE has limited group legal meetings.
  • ICE has required that there be, “one prospective client or current client for every volunteer legal team member in the room.”
  • ICE stopped, “allowing people to sign up for legal help through a ‘walk-in’ signup list.”

None of those measures should be the least bit shocking to anyone with any familiarity with prisons, jails or detention centers. In controlled custody settings, the safety, security and good order of the detention facility take precedence over all other concerns. While detainees have a right to communicate with their legal counsel, they aren’t free to do so at any time and in any manner they choose.

In fact, ICE’s procedures are downright permissive compared to those in place at many other detention facilities. Take for example the New York State Department of Corrections and Community Supervision policies for inmate legal visits. It requires a minimum of 24 hours notice prior to any legal visit. It limits legal visitors to attorneys, law students, and paralegals. Visits may only be conducted Monday through Friday during ordinary visiting hours. And the Superintendent of any institution may deny legal visits, “if such action is necessary to maintain the safety, security, and/or good order of the facility.”

ICE, on the other hand, allows “provides 12 hours of legal visitation daily, even though the standards call for eight on weekdays and four on Saturdays and Sundays,” and, “attorneys to meet with multiple clients and potential clients daily, and includes the opportunity for ‘walk-in’ appointments and daily private group meetings.”

RAICES’ complaint is part of an overall pattern where organizations that advocate on behalf of immigration violators brazenly demand privileges for detained foreign nationals that simply that aren’t available to U.S. citizens in similar circumstances. Unfortunately, ICE has a history of giving in to such unreasonable demands. The absurd Flores Settlement Agreement is a perfect example. Will ICE cave this time? That remains to be seen.

As a matter of constitutional law, due process in criminal proceedings requires that litigants retain their own counsel, waive their right to an attorney, or proceed with court appointed counsel if they are indigent. In civil matters, however, litigants have a limited right to counsel at their own expense, but may be forced to continue without an attorney if they cannot or do not find one. Deportation is a civil matter.

ICE is not “blocking” anyone’s access to free legal help by imposing reasonable procedures on attorney legal visits to detention centers. On the other hand, RAICES, and organizations, like it are stretching the concepts of due process and the right to counsel well beyond their intended bounds. ICE should firmly stand its ground and preserve its ability to ensure the safety of everyone who must enter its detention facilities.

About Author

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Matthew J. O’Brien joined the Federation for American Immigration Reform (FAIR) in 2016. Matt is responsible for managing FAIR’s research activities. He also writes content for FAIR’s website and publications. Over the past twenty years he has held a wide variety of positions focusing on immigration issues, both in government and in the private sector. Immediately prior to joining FAIR Matt served as the Chief of the National Security Division (NSD) within the Fraud Detection and National Security Directorate (FDNS) at U.S. Citizenship and Immigration Services (USCIS), where he was responsible for formulating and implementing procedures to protect the legal immigration system from terrorists, foreign intelligence operatives, and other national security threats. He has also held positions as the Chief of the FDNS Policy and Program Development Unit, as the Chief of the FDNS EB-5 Division, as Assistant Chief Counsel with U.S. Immigration & Customs Enforcement, as a Senior Advisor to the Citizenship and Immigration Services Ombudsman, and as a District Adjudications Officer with the legacy Immigration & Naturalization Service. In addition, Matt has extensive experience as a private bar attorney. He holds a Bachelor of Arts in French from the Johns Hopkins University and a Juris Doctor from the University of Maine School of Law.

17 Comments

  1. avatar
    Jeanette Fossum on

    Anyone who cones to America illegally is a criminal. they have No rights. same if they bring their kids.
    send them. back.

  2. avatar
    Joan B asson on

    The immigration issue is not only about some people now coming in illegally, it is about future mega-numbers of poor and unskilled that will pour in from Latin America, when the word spreads that once you get in to the US things will go well. Brazil has extremely high numbers of poor, for example, and if transportation were provided by either government or open borders organizations, or perhaps billionaires like George Soros, we would be inundated and our services swamped.

  3. avatar
    Carla Larson-Tucke on

    Their very presence on American soil is a criminal act. Applying for asylum is something you do at an embassy in your own country. There is no right to legal services for people who are not US Citizens, nor is there a right to even legal advice. There is no legal defense for invading our country. They broke the law by crossing the border and they should just be turned back across the border, and told to make their way back to their country and apply for asylum or citizenship the right way. Period, end of story. They are not political refugees, they are UN assisted relocations to dilute the population and make it less homogeneous to make the government unstable.

  4. avatar

    they came across the borders illegally and should not entitle to anything, and basically what kinds of rights do they have, citizens here in this country dont even have certain rights

  5. avatar

    Why in the hell should they get free anything. Their not citizens. What is wrong with this country? They need to go back to their own country and let them give them free stuff.

  6. avatar
    Mary E Fooshee on

    Why do they think they have ANY rights in OUR country? More power to ICE, who tries to keep up safe. The illegal immigrants can go back to their country and demand certain rights. I’m all for merit based immigration. Legal immigration is the base of our country, but only legitimate immigration. Not the cheating illegals🇺🇸

  7. avatar

    WHY should they get FREE legal counsel???!!! IT’S NOT FREE. IT IS PAID FOR BY THE AMERICAN TAX PAYERS… THAT IS WRONG… MAKE THEM PAY FOR THEIR OWN COUNSEL!!!!!!! I’m FED UP with our tax dollars being used to take care of illegal aliens… they should get emergency medical care IF needed and then IMMEDIATELY DEPORTED!!! THEY SHOULD GET NOTHING MORE… they are NOT our responsibility… We should NOT be spending ONE dime on the illegal aliens.. the politicians have continually encouraged these illegal aliens to flood our country by handing them more and more of OUR Rights and benefits as citizens… I’m fed up with these illegal aliens being held above our laws and above the citizens…
    HEAVEN HELP OUR COUNTRY BEFORE WE HAVE NO COUNTRY

  8. avatar
    LaNell Barrett on

    RAICES? Oh wow….the liberal loonies have a new ‘band’. I wish THEY would all get together and pay for their constant legal demands. If they had to do that, I.C.E. would be left alone to do their job of protecting us.

    All of the sympathy for South of the border people, who do deserve it, should take the form of help from the Catholic Church. While the Pope is draped in gold, his every thought taken care of in Rome, the multitudes the church encouraged to be conceived are suffering. When is it time for Rome to step in? And, yes, they DO have more money than God.

    • avatar
      Rose Marie Tresp on

      The major help to immigrants is provided by the Catholic Church through various organizations. The extent of the wealth of the church is extremely over rated since the demands on the church from the poir churches and charitable needs are very great.

      • avatar

        The Catholic Church lives well in the past by encouraging people to “multiply and fill the earth.” Send the Breeders to Rome!

  9. avatar

    More spin by NBC. Big bad ICE always at fault, at least according to the “advocates” they love to quote. But this is just another case where illegals get MORE rights than the average American. What goes unsaid is the considerable expense that added hours and extra individuals from legal teams costs the bottom line of ICE. While a few guards may oversee general visits from families, it takes more personnel to screen and admit lawyers and legal aides because they have closer contact with their clients. It is not supposed to be some group meeting. Just more people who don’t want the laws enforced so they endlessly charge bias when they have no reason to.

    • avatar

      Stop giving them there american dream …give us ours.send them all home.so our homes will be safe.fire all the government..that doesnt stand with the american people.sue them kike they are allowing illegals to sue us.it our constitution mot theirs. They have no rights over hetr we have none in there country. Americans are put un prisons or killed

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