Transfer policy for detainee has been abused

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© St. Petersburg Times
published December 30, 2001

In an almost comic moment at the recent Senate Judiciary Committee hearings on Attorney General John Ashcroft's terrorism investigation, Wisconsin Sen. Russ Feingold raised concerns over the problems detainees were having accessing lawyers. In some cases, detainees reported being moved from place to place so their attorneys couldn't locate them. Others said they were given little or no opportunity to communicate with counsel.

"I want your commitment, Mr. Attorney General, that everyone in detention will get a lawyer, and will be able to consult with them," Feingold challenged. "Can you give me that commitment?"

"Well, no, I can't," Ashcroft responded. "I cannot force lawyers on individuals who refuse lawyers."

Never let it be said that our attorney general wasn't sensitive to the rights of immigrants to be free from the burdens of having legal representation. If people held secretly by our government for months on end don't want a lawyer versed in the ins and outs of complicated immigration law, well, dag-gone-it, they don't have to have one, and our attorney general will see to it.

After his glib aside, Ashcroft went on to answer that he could make lists of lawyers available to the detainees (already a requirement under federal regulations, though the lists provided are notoriously inaccurate), but that the INS does not appoint attorneys to immigrants at the government's expense the way they are provided for indigent criminal defendants.

He was right on that score. While the courts have recognized that immigrants facing deportation have a right to be represented by a lawyer, they don't have a right to have the government provide one. Which means they either pay for one, find a lawyer willing to work pro bono, or remain unrepresented at their immigration proceedings. Ninety percent of immigrants under INS custody end up in the last category.

The lucky few who do have lawyers find that the INS engages in practices, deliberate or not, that keeps them from their lawyer's counsel.

When Dr. Al-Badr Al-Hazmi, a Saudi Arabian doctor living in San Antonio, was arrested on Sept. 12 by the FBI, his attorney Cynthia Orr said she literally couldn't locate him for six days. During his 13 days in custody, Al-Hazmi was moved to three different holding facilities.

This might seem like a special hardship reserved for those detainees picked up following the Sept. 11 attacks, but immigrant advocates say transferring immigrants without telling their lawyers and failing to give jailed immigrants reasonable access to telephones is just business as usual.

"These problems have been chronic problems in the system that have been coming to light because of the current attention to detainees," said Christopher Nugent, director of the American Bar Association's Immigration Pro Bono Development Project. "It's just reflective of shortcomings in the system. The way it's been structured doesn't really facilitate full access. . . . There has always been problems with getting information about individual detainees. Sometimes they even lose track of where a detainee's been moved to."

About 20,000 immigrants are currently in INS detention awaiting asylum hearings or other proceeding. Though they are not considered criminals, more than 60 percent are held in county jails and state prisons the agency contracts with around the country. The INS claims that every bed regardless of where it is situated, is national, and it may therefore transfer detainees anywhere and at anytime.

"In the mid-west, there are no INS processing centers, so detainees are held in county jails scattered all over the mid-west," said attorney Amy Stern, formerly with the Midwest Immigrant Rights Center, in an ABA report. Typically, we would . . . think that the detainee was at one jail, drive three hours to see him, only to find out that he had been transferred to another jail. This happened frequently,"

In the same report, Joan Friedland, an attorney formerly with the Florida Immigrant Advocacy Center, said "It's not unusual to see detainees . . . transferred up to 10 times."

Transfers can be made across the country with no advance notice to the detainee or his lawyer and there is no appeal. Often detainees are prevented from taking any personal items with them, including their phone books or attorney cards.

You can see how this situation makes it absurdly difficult for legal aid attorneys to provide representation, and how recruiting lawyers to take these cases pro bono would be virtually impossible. Who would volunteer to play cat and mouse with the INS as your client is hop-scotched around the country?

Attention may have focused on the legal rights of the 1,200 people detained since the Sept. 11 attacks, but the problem of attorney access is a systemwide failure. The transfer policy is particularly abusive and seems to have been used in a way to make detainees just that much more helpless.

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