Access to Counsel Before DHS

The LAC has long advocated for the right to counsel in immigration settings, including meaningful access to an attorney. In conjunction with AILA, the LAC currently is engaged in administrative advocacy to secure improved access to counsel in all DHS proceedings.

In 2010, the LAC and the American Immigration Lawyers Association (AILA) conducted a survey regarding lawyer’s experiences representing their clients before DHS. The survey revealed widespread restrictions on access to counsel before USCIS, ICE and CBP. Such limitations include bars on attorney presence at CBP inspections, limitations on the ability to consult with attorneys in ICE detention facilities and during questioning by ICE, and restrictions on attorneys’ ability to participate in interviews before USCIS. The survey also highlighted significant variations in policies and practices in DHS offices throughout the country.

To better understand DHS policies, the LAC submitted extensive Freedom of Information Act (FOIA) requests to the agencies requesting records related to counsel. To date, the agencies have failed to disclose all responsive documents.

CASES I ADVOCACY

CASES

FOIA Suits Seeking DHS Access to Counsel Records

The LAC filed two lawsuits against DHS to compel the release of records relating to noncitizens’ access to counsel before USCIS and CBP. The LAC pursued disclosure of these records, as well as records from ICE, through FOIA requests filed in March 2010. To date, USCIS has failed to turn over any documents, and CBP has turned over only a few excerpts from its practice manuals. ICE has informed the LAC that it conducted a search for records, but that it is “unable to locate or identify any responsive records.” The LAC has filed an administrative appeal of ICE’s determination and will pursue litigation if necessary. Dorsey & Whitney LLP is co-counsel with the LAC on these FOIA cases.

Suit Against USCIS

American Immigration Council v. DHS and USCIS, No. 1:11-cv-01971 (D.D.C. filed Nov. 8, 2011)

In response to the suit against USCIS, the agency determined that it had over 2042 pages of documents responsive to our request. However, USCIS released only 455 pages in their entirety. It withheld 1169 pages and released 418 pages with redactions, claiming FOIA exemptions protected the records from disclosure.

Many of the released documents are email exchanges detailing the review and amendment of the Adjudicator’s Field Manual’s (AFM) counsel related provisions. The records reveal that attempts to amend the AFM have started and stalled on numerous occasions over the past six years. The records also suggest that recent advocacy efforts by the American Immigration Council and the American Immigration Lawyers Association prompted the prioritization of amending the AFM. In addition, among other records of note are directives from 2010 and 2011 regarding the policy of allowing attorneys to sit next to their clients and USCIS headquarter’s concern that this policy is not being followed and email correspondence regarding one field office’s now-superseded policy that beneficiaries do not have the right to counsel.

Complaint against USCIS (with original FOIA request attached)

Cover Letter to FOIA Response

Complete FOIA Response- 2040 Pages

Pages 2-4: Seating policy- Email directives from 2010 and 2011 regarding policy of allowing attorneys to sit next to their clients and concern that some field offices are not incompliance.

Pages 67-74: Representation overseas- Email correspondence regarding representation of refugees overseas (note that USCIS did not release the “old counsel opinion” referenced in an email).

Pages 117-118, Pages 1670-1671: Directive to review AIC and AILA’s proposed revisions to the AFM

Pages 967-968: Stalled review of the AFM: email correspondence indicating there is “a lot of interest” in amending the counsel provisions of the AFM and an explanation that the amendment process was stalled in 2007.

Page 1355: “Just trying to get this right – esp. given I-797 fiasco”- A redacted 2011 email (probably regarding amendments to the AFM) with the title “Just trying to get this right – esp. given I-797 fiasco.”

Page 1862: Beneficiary’s right to representation: Email clarifying that the beneficiary may be represented, and recognizing that “it has become an issue in one office.”

Suit Against CBP

American Immigration Council v. DHS and CBP, No. 1:11-cv-01972 (D.D.C. filed Nov. 8, 2011)

CBP filed a motion for summary judgment on January 26, 2012, asserting that it conducted a reasonable search, but was unable to uncover any records responsive to our request. The LAC is contesting the adequacy of CBP’s search.

Complaint against CBP (with original FOIA request attached)

CBP's Motion for Summary Judgment

ADVOCACY

USCIS

In a March 24, 2011 letter, AIC and AILA urged USCIS to address reports of widespread and recurrent restrictions on access to counsel. These restrictions, documented in a nation-wide survey of immigration attorneys, included limitations on attorneys’ ability to communicate with their clients, restrictions on attorney seating during USCIS interviews, and limitations on attorneys’ ability to submit documents to the interviewing officer.

On May 11, 2011, after meeting with AIC and AILA to discuss the issues raised in the letter, USCIS responded that the agency was taking steps to improve access to counsel and requested that AIC and AILA recommend changes to USCIS guidance.

On June 14, 2011, AIC and AILA provided specific recommendations for changes to the USCIS Adjudicator's Field Manual (AFM) to better to safeguard the attorney's role in USCIS interviews.

In an August 8, 2011 letter, USCIS expressed appreciation for AIC’s comments and suggestions.

On December, 21, 2011, USCIS issued an Interim Memo, “The Role of Private Attorneys and Other Representatives; Revisions to Adjudicator’s Field Manual (AFM) Chapters 12 and 15; AFM Update AD11-42.” The Memo provided amendments to the counsel provisions of the AFM and invited comment from stakeholders.

On February 14, 2012, AIC and AILA issued comments to the Interim Memo. The comments recommended, among other things, that USCIS take additional steps to clarify the role of attorneys and the treatment of attorneys’ written submissions; to address continued limitations on attorney seating; to expand the requirements related to waivers of representation; and to improve the complaint process.

ICE

In an August 8, 2011 letter, AIC and AILA urged ICE to address reports of restrictions on access to counsel in a range of interview settings. These restrictions, documented in a nation-wide survey of immigration attorneys, included complete bars to attorney presence during ICE interviews and limits on participation when attorneys are permitted to be present. Attorneys also reported that ICE officers often were antagonistic toward attorneys.

CBP

In a May 11, 2011 letter, AIC and AILA urged CBP to address restrictions on access to counsel. These restrictions - documented in a nation-wide survey of immigration attorneys - included limitations on attorneys’ access to their clients in secondary and deferred inspection. In instances where attorneys were able to accompany their clients, CBP officers limited the scope of representation. Attorneys also reported that CBP officers prevented attorneys from providing relevant documentation and sometimes adopted an adversarial approach.

On July 13, 2011, CBP responded to the May 11 letter stating that CBP “maintains a positive relationship with the vast majority of legal representative who are permitted to accompany their clients to deferred inspections,” and that the inspection process will “primarily be limited to the inspecting officer . . . so as not to diminish the efficiency and integrity of the inspection.”