Alicia Wheeler, an immigration attorney in Phoenix, is pictured. A new rule from U.S. Immigration and Customs Enforcement requires attorneys to bring their own personal protective equipment to attend hearings and visit clients inside immigration detention facilities. Photo courtesy AILA AZ
U.S. Immigration and Customs Enforcement is turning away Arizona lawyers from immigration detention centers if they don’t comply with a new agency requirement to bring their own nitrile gloves, surgical mask or N95 respirators, and eye protection, according to the Arizona chapter of the American Immigration Lawyers Association.
The medical supplies ICE is requiring of immigration lawyers are crucial for healthcare workers responding to the coronavirus outbreak nationally, according to the Centers for Disease Control and Prevention.
The new ICE rule adds a wrinkle for immigration lawyers who have voiced concerns about the risk of doing their jobs during a pandemic. The federal government has largely kept immigration courts open and hearings in place for thousands of adults and minors in its custody, while at the same time encouraging larger sectors of society to come to a halt.
“They are essentially giving us the complete opposite directive which is, ‘You have to be here, you are going to be close to your client and everyone else here, and you gotta figure out a way to get this equipment that is so essential to the people that are in the front lines,’” Ayensa Millan, a Phoenix immigration attorney, said. “It makes absolutely no sense.”
Because it’s unlikely immigration lawyers will secure the medical supplies for themselves – personal protective equipment is already in short supply, even for health care workers – the new ICE policy effectively shuts out attorneys from attending hearings in immigration courts and visiting with their clients, raising due process concerns, said Pamela Florian, chair of AILA AZ.
“For new cases, for new people who hire us, we need to be able to go get information from them, so it raises due process concerns that we are unable to represent our clients competently and adequately,” she said.
ICE notified attorneys of the new rule requiring personal protective equipment to access detention centers on March 20, according to AILA AZ. With the two-day notice, lawyers scrambled to piece together what they could find, like goggles used for gardening or construction work, to attend hearings and planned meetings inside detention facilities, the group said in a Facebook post.
“There is a severe shortage of (personal protective equipment) across the nation. This requirement will make it impossible for lawyers to represent their clients unless they rob health care providers who are working to save the lives of thousands of patients of desperately needed equipment,” McKinney said. “All live in-person hearings need to be immediately suspended.”
On its website, ICE says legal visitations at detention centers are still permitted, but special requirements might be imposed.
“In order to safeguard visitors, detainees, and ICE and facility staff, official visitors may be subject to special screening and procedures. ICE may impose additional requirements, such as mandating that visitors wear protective equipment,” the agency states.
“The intent is to protect detainees,” ICE spokeswoman Yasmeen Pitts O’keefe said.
Calls mount for feds to suspend all immigration court hearings
Two immigration detention centers in Arizona have immigration courts inside of its facilities: the Eloy Detention Center and the Florence Correctional Center, which have a combined capacity to hold approximately 2,250 adults who are typically awaiting deportation or adjudication of their asylum claims.
The Eloy and Florence facilities are overseen by ICE but operated by the private prison corporation CoreCivic. The immigration courts are administered by a separate government agency: the Executive Office of Immigration Review.
While EOIR has postponed non-detained court hearings (that is, cases for people not currently held in ICE custody), judges, government prosecutors, attorneys, and court interpreters are still working as usual to move through the cases of detained adults, teens and children.
“(Detained people) are considered priorities, so those hearings happen a lot quicker, so it’s also a concern because attorneys have to prepare everything in a short amount of time,” Florian said.
She explained that some local immigration judges have allowed for lawyers to appear telephonically for certain hearings, but not for ones known as individual hearings. During those hearings, people or their lawyers present their case for staying in the country. Judges usually make decisions during those hearings, Florian said.
“Attorneys who have an individual hearing need to be able to go to that hearing, and not having the adequate equipment when there’s a crisis, is just outrageous,” she said.
With the new ICE rule and EOIR’s continuation of court hearings of detained individuals, immigration lawyers, judges, prosecutors and court staff have to operate in an environment that runs contrary to what public health and government officials – and the White House – have said will help prevent the spread of the new coronavirus: stay at home and work remotely, avoid crowds and close contact with others, and stop buying masks unless you’re caring for a sick person.
Florian said she worries that lawyers are not only unable to effectively represent clients, but also about putting themselves and others at risk of contracting the COVID-19 disease, which is highly contagious.
“When there’s a crisis, and we need to see our client, and we have to come up with protective gear to come in, and then we are also dealing with our own fear of contracting a disease and endangering our families … By going into the detention centers, we are obviously scared that we bring (the virus) ourselves into the detention center, where we know people live in confined spaces, or we could potentially contract it ourselves as well,” she said.
In a March 23 letter urging EOIR to suspend all immigration hearings during the national health emergency, AILA AZ said the new ICE rule is also being applied inconsistently.
Nationally, an alliance of organizations representing immigration judges, ICE prosecutors and immigration lawyers have jointly called for EOIR to close all 68 immigration courts nationwide.
ICE “not well-equipped” to contain potential outbreak in detention facilities
ICE has reported that one detainee in a New Jersey facility has tested positive for COVID-19, as have another 20 ICE workers, including a detention officer in another New Jersey facility.
Millan, the Phoenix immigration attorney, thinks the federal government should go a step further and close ICE detention facilities.
“Not having access to our clients is a violation of their constitutional rights,” Millan said. “For us to continue with our hearings and our cases with no access, or limited access (to clients), and the fact that we are putting our own health and the health of our clients at risk is a huge concern… I think at the end of the day, the best thing to do is to shut down the centers, until this thing is under control.”
Millan said she attended a hearing at the Eloy facility last week, and facility staff provided her with a surgical mask. She said she saw an inconsistent application of sanitary precautions. While she was required to wear a mask, detention facility officers and others inside the courtroom weren’t. People were still seated in close contact with each other, and detainees still waited for their hearing in crowded rooms outside the courtroom, she said.
Millan added that several ICE detention centers have registered outbreaks of viral diseases in recent years, including hundreds being quarantined for mumps last summer, and instances of a surge in chickenpox and measles cases.
This history shows these facilities are susceptible to the spread of the coronavirus and COVID-19, Millan said, which is another reason to close them down.
“We know those are not the cleanest places, they don’t keep the sanitary standards that they should,” she said. “They’ve had multiple measles, chickenpox outbreaks because of the sanitary conditions inside the detention centers. I’m sure they are not well-equipped to be able to handle an outbreak within the facility.”
During those outbreaks, Millan said court hearings were still held and attorneys had access to the facility as long as they provided a signed statement that they were vaccinated.
“What they need to do is just shut down the centers, release people that are not dangerous, people that are at high-risk, cancel all court hearings,” she said.
In a statement, Brian Y. Furuya, president of the State Bar of Arizona board of governors, explained lawyers concerned with ICE’s new rule can reach the group’s ethics hotline.
“Courts, prisons, local jails, and other entities where our members must be present to practice law all set their own requirements for continuity of operations during the current public health crisis,” Furuya said. “While the State Bar of Arizona does not regulate work conditions or environments for our members, we encourage prudence and reasonable precaution as appropriate, and further encourage any attorney facing an ethical dilemma resulting from circumstances related to COVID-19, or any other emergency, to contact the State Bar of Arizona Ethics Hotline (602-340-7284) for guidance.”
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