ICE deprives immigrant detainees of adequate counsel
Editor:
Rama Carty’s lawsuit ("One man’s battle with immigration detention echoes a multitude of national concerns," March 28) should never have happened because he should never have been detained at the Port Isabel Detention Center.
Carty’s transfer from Massachusetts to Bayview is typical. In 2007, Immigration and Customs Enforcement transferred 261,910 of the 311,000 immigrants it detained — almost 85 percent. Given that two of the three immigration prisons nationwide that hold more than 1,000 detainees are in the Valley, it stands to reason that many of these people ended up here.
DHS’s practice of transferring immigration detainees, including lawful permanent residents (i.e., green card holders), from the Northeast to the PIDC and Willacy Detention Center in Raymondville is arguably unconstitutional. Immigrants in deportation proceedings have a right to counsel that is rooted in a federal statute and the Fifth Amendment of the U.S. Constitution. Unlike the right to counsel in criminal proceedings, this is a right to hire an attorney, not a right to have an attorney paid by the government. DHS renders this right meaningless when immigrants are sent to isolated prisons where attorneys available to be hired are few and far between.
As an attorney who used to represent immigrants detained in the Valley’s two immigration prisons I am intimately familiar with the reality that most detainees are forced to wage their final effort to stay in the U.S. without the help of an attorney because of two basic principles of free markets: either they cannot afford to hire one or there are not enough attorneys willing to represent detained immigrants. This is not a lucrative practice and one that my friends and siblings who do this work ought to be commended for doing.
The problem with detaining immigrants where they cannot access counsel is that the constitutional guarantee of due process — a right that goes back to the Magna Carta of 1215 — seeks to protect the fundamental fairness of governmental proceedings. Deportation proceedings are not fundamentally fair when immigrants, many of whom have established deep roots over the course of decades living here, are banished from the U.S. without the assistance of counsel. To expect that all but the most exceptional of immigrants can navigate immigration law on their own is preposterous. Sitting inside the Harlingen Immigration Court for a few hours evidences that.
Add to this that ICE doesn’t follow its own policy of notifying relatives when an immigrant is transferred and we have the perfect storm of a prison apparatus run amok. Families have no way of knowing if their relative, detained yesterday near their home, is there today and, if not, where they might be. In March 2009 the Department of Homeland Security inspector general reported that the one-page form that ICE officials are required to fill out upon any transfer "was not properly completed for 143 of the 144 transfers we tested."
It would be easy to dismiss this quagmire as inconsequential given that detainees are not U.S. citizens. Sadly, citizens have been detained by ICE as part of the Bush and Obama administrations’ ramping up of immigration policing. Even if citizens were not detained, however, transfers like Carty’s should still concern us. Many detainees have legitimate claims for staying in the U.S., but often these go unnoticed by immigrants who are unable to speak with an attorney and who are imprisoned many hundreds or thousands of miles from family and friends who could muster the financial and emotional resources needed to explore avenues for staying here.
This is a problem that concerns all of us who aspire to a legal system that reaches decisions fairly. Until DHS ceases its imprisonment frenzy, however, the Valley will continue to be the site of immoral and potentially unconstitutional detention.
César Cuauhtémoc García Hernández, a McAllen native, is a visiting assistant professor of law at the University of Tulsa.
