Government Regularly Denies Access to Counsel, Groups Seek New Rules

When the White House issued its first Muslim travel ban, reports of noncitizens and citizens being held in airports’ secondary detention swirled. Individuals were being held for hours at a time without access to attorneys, even though scores of lawyers were attempting to reach them.

Denial of access to counsel in secondary detention is not new. Attorneys are also routinely prevented from accompanying their clients to interviews at U.S. Embassies and Consulates overseas. Yet the importance of securing access to counsel cannot be overstated, particularly given the harsh new immigration policies coming out of the current administration.

In an effort to remedy this problem, the American Immigration Council and the American Immigration Lawyers Association filed a petition for rulemaking with the government this week. This petition for rulemaking is a request to the Department of Homeland Security and the Department of State to issue a rule ensuring that individuals have access to attorneys in certain types of administrative proceedings.

The petition seeks to provide legal access to petitioning individuals and employers, as well as noncitizens applying for nonimmigrant and immigrant visas at U.S. Embassies or Consulates; U.S. citizens and nationals seeking recognition or relinquishment of their citizen or nationality status; and individuals seeking admission to the United States who are placed in secondary and deferred inspection.

The assistance of counsel in administrative proceedings before government agencies is fundamental to ensuring that our laws are properly executed and that due process is afforded to those seeking benefits or other recourse from the U.S. government. In addition, the presence of counsel in administrative proceedings can save the government time and money. When a complicated legal issue arises and counsel is barred from participating meaningfully in proceedings, both citizens and noncitizens may be subject to prolonged and unnecessary delays. Ultimately, the lack of meaningful access to counsel can result in an unjust refusal of a visa, denial of admission, or expedited removal from the United States.

In addition to the petition, Members of Congress have also recognized the critical role that counsel can play in the inspections and admission process. Senators Harris (D-CA), Blumenthal (D-CT), Booker (D-NJ), Carper (D-DE), Gillibrand (D-NY), Markey (D-MA), and Warren (D-MA) have introduced a bill to guarantee access to counsel to those who are held or detained at a port of entry or at a detention facility overseen by Customs and Border Protection (CBP) or Immigration and Customs Enforcement (ICE). A companion bill was introduced in the House by Representative Jayapal (D-WA).

The United States can and must do better. A nation that prides itself on providing due process of law cannot allow the government to arbitrarily refuse individuals access to their attorneys. It’s not only unfair, it’s simply un-American.

Photo by Tim Evanson

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  • James Leonard Park

    It will be a major stretch for the taxpayers
    to fund both the immigration courts
    and lawyers to defend each person seeking to stay in the USA.
    It already costs more than $10,000 to deport one unauthorized foreign national.
    Better than arguing each case individually,
    the USA should set clear policies
    concerning which foreign nationals can stay
    and which must return to their homelands.
    When everyone knows the rules,
    they can apply them to their own families
    without hoping for a favorable ruling from an immigration judge.

    • Lipika Borkakoty

      Landowners in Texas have vested right of family integrity – a fundamental and substantive due-process right for a family unit to be free of unjustified state interference.

  • Carann DiSenate

    Interesting how the newest democrat Senators, most attorneys, have collectively written a ‘bill’ to change the Constitution of the U.S. that strictly states “due process” is only a constitutional requirement for American Citizens. Within ‘due process’ is representation by a licensed attorney. There is no requirement as to the quality of the legal representation.

    • Barbara Strickland

      Try reading the 14th Amendment which guarantees due process to “people” not just citizens. Try reading the Supreme Court decision is Padilla v Kentucky re quality of representation. Next time maybe you will have at least a vague idea of what you are talking about