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Access to Counsel in Immigration Detention in the Time of COVID-19

A Guide to ICE NDS 2019 Detention Standards for Nondedicated Facilities with ICE COVID-19 Modifications

Introduction

Facilities that house individuals in the custody of Immigration and Customs Enforcement (ICE) must meet published standards for their detention. These standards dictate, among other things, how a facility shall protect an individual’s access to legal counsel while detained. The standards vary by the contract with facility provider, but all facilities approved by ICE to detain persons more than 72 hours must make provision for legal mail, phone calls and visits from retained and prospective attorneys, group legal rights presentations, and access to law libraries and materials for pro se respondents. The COVID-19 pandemic has altered some of the practices prescribed in the standards including the ways in which detainees access legal counsel, advice, and information. As the ability to visit detention facilities in person has been significantly curtailed due to the pandemic, the need for remote access between detainees and legal service providers is greater than ever.The following information is provided to identify the detention standards that address access to counsel and subsequent instruction from ICE modifying those standards due to the COVID-19 pandemic. Further, this handbook provides tools and resources to attorneys and advocates who may encounter difficulty providing legal services to ICE detainees and who wish to assert their clients’ right to access to counsel with the Department of Homeland Security.

I. Access to Counsel, Key ICE National Detention Standards for Nondedicated Detention Facilities

ICE detention standards delineate an immigration detainee’s right of access to counsel. Its contracts or written agreements with detention providers, including enforcement provisions, are the means by which ICE procures these critical services for detained migrants.

ICE promulgated several sets of detention standards that are in effect today. These include the ICE 2019 National Detention Standards, the ICE 2008and 2011 (rev. 2016)  Performance-Based National Detention Standards, and the Family Residential Standards.The Performance-Based National Detention Standards prescribe both detailed expected outcomes of each detention standard and the expected practices required to achieve them. The National Detention Standards do not.

ICE issued the National Detention Standards for Nondedicated Detention Facilities in 2019 to guide the operation and activities of three types of facilities:

(1) approximately 45 facilities operating pursuant to intergovernmental service agreements (IGSA) (which previously utilized the 2000 National Detention Standards (NDS)),

(2) approximately 35 U.S. Marshals Service (USMS) facilities used by ICE and which ICE inspects against the NDS, and

(3) approximately 60 facilities which do not meet the threshold for ICE annual inspections, generally those with an average daily population of fewer than 10 ICE detainees.

The premise of the 2019 standards is that all these facilities have successfully managed their own populations, and that their local practices cover many of the requirements that were explicitly enumerated in 2000 NDS. ICE explained that, based on its experience with state and local law enforcement partners, and the understanding that local practice appropriately covers many requirements that were explicitly enumerated in NDS 2000, the NDS 2019 merely streamlines several prior standards. Actually, NDS 2019 has 13 fewer standards than does 2011 PBNDS (rev. 2016), creating a second tier of standards, and, with few favorable exceptions less protection for all the detainees assigned by ICE to facilities governed by these standards.

The American Bar Association has produced two handbooks for providers, one to guide those   serving detainees in dedicated (ICE-only) facilities, the vast majority of which are bound by the 2011 Performance-Based National Detention Standards (rev. 2016), and one for those serving detainees in nondedicated (shared-use) facilities, the vast majority of which are bound by the 2019 National Detention Standards. This handbook is for providers serving detainees primarily in nondedicated facilities. If you are uncertain whether a detention facility is dedicated or nondedicated, kindly refer to ICE’s current list of dedicated and nondedicated facilities online.

There are six detention standards that address access to counsel. They are:

  • 5.1 Correspondence and Other Mail, 
  • 5.6 Telephone Access, 
  • 5.7 Visitation, 
  • 6.3 Law Libraries and Legal Material, 
  • 6.4 Legal Rights Group Presentations, and
  • 7.2 Detainee Transfers.  

A.   5.1 Correspondence and Other Mail

It is ICE’s policy that all facilities will ensure that detainees can send and receive correspondence and other mail in a timely manner, subject to limitations required for the safety, security, and orderly operation of the facility.

  1. Correspondence and Other Mail Standards and Key Provisions.
    1. Quantity. The quantity of correspondence a detainee may receive or send at their expense shall not be limited except to protect public safety or facility security and order.
    2. Postage, Indigent Detainees. The facility shall provide a postage allowance at government expense for indigent detainees. Indigent detainees shall be able to mail a reasonable amount of mail each week at government expense including, at least five pieces of special correspondence or legal mail. Free postage is generally limited to letters weighing one ounce or less, with exceptions allowed for special correspondence.
    3. Special Correspondence. Special correspondence includes detainees’ written communication to or from private attorneys and other legal representatives, and government attorneys.Special correspondence will only be treated as such if the title and office of the sender (for incoming correspondence) or addressee (for outgoing correspondence) are unambiguously identified on the envelope, clearly indicating that the correspondence is “special.”
    4. Writing Implements, Paper, and Envelopes. The facility shall provide writing paper, writing implements and envelopes at no cost to all detainees.
    5. Notaries, Certified Mail, and Miscellaneous Needs Associated with Legal Matters. If a detainee without legal representation requests certain services in connection with a legal matter (notary public, certified mail, etc.) and has no family member, friend, or community organization to help, the facility shall assist the detainee. If it is unclear whether the requested service is necessary in pursuit of a legal matter, the facility should consult with ICE/ERO.
    6. Detainees in Special Management Units. Detainees in administrative or disciplinary segregation shall have the same correspondence privileges as detainees in the general population.
  2. COVID-19 Modifications to Correspondence and Other Mail. There are none.

B.    5.4 Telephone Access.

It is ICE’s policy that facilities shall provide detainees with reasonable and equitable access to telephones.

  1. Telephone Access Standards and Key Provisions.
    1. Detainee Access to Telephones. Each facility shall provide detainees with access to reasonably priced telephone services.
    2.  Number of Telephones. To ensure sufficient access, the facility shall provide at least one operable telephone for every 25 detainees.
    3.  Telephone Maintenance. The facility shall maintain detainee telephones in proper working order.
    4. Direct Calls and Free Calls. Even if telephone service is limited to collect calls, the facility shall permit detainees to make direct, free calls to legal service providers among others, in pursuit of legal representation or to engage in consultation concerning their expedited removal case, and legal service providers or organizations listed on the ICE/ERO free legal service provider list. If the facility requires detainees to complete a request form to make direct or free calls, assistance must be provided for illiterate or limited English proficient detainees, and to detainees with disabilities. Any limitation impeding compliance must be reported to ICE/ERO immediately.
    5. Automated Systems. Facilities will make efforts where necessary to allow detainees to make legal calls and to navigate decision trees and/or leave messages when those calls are answered by an automated system. All these calls must be provided in an environment where the detainee’s conversation may not be readily overheard. If the limitations of the facility’s existing phone system impede meeting these requirements, the facility must report this deficiency to ICE/ERO. ICE/ERO shall respond, providing an alternative means of access within 24 hours.
    6. Telephone Usage Restrictions. The facility shall not restrict the number of calls a detainee places to their legal representatives or to obtain representation. Similarly, the facility shall not limit the duration of such calls by rule or automatic cut-off, unless necessary for security purposes or to maintain orderly and fair access to telephones. If time limits are necessary for such calls, they shall be no shorter than 20 minutes, and the detainee shall be allowed to continue the call, if desired, at the first available opportunity. The facility may place reasonable restrictions on the hours, frequency, and duration of the other direct and/or free calls listed above.
    7. Privacy for Telephone Calls on Legal Matters. The facility shall ensure privacy for detainees’ telephone calls regarding legal matters. For this purpose, the facility shall provide a reasonable number of telephones on which detainees can make such calls without being overheard by officers, other staff, or other detainees. Facility staff shall not electronically monitor detainee telephone calls related to legal matters, absent a court order. The facility shall inform detainees to contact a facility staff member if they have difficulty making a confidential call relating to a legal matter. If notified of such a difficulty, facility staff shall take measures to ensure that the call can be made confidentially.
    8. Monitoring of Detainee Telephone Calls. The facility shall have a written policy on the monitoring of detainee telephone calls. If telephone calls are monitored, the facility shall notify detainees of this in a language or manner that they understand and in the facility handbook provided to detainees upon admission. A detainee’s call to a court, a legal representative, or for the purposes of obtaining legal representation will not be monitored absent a court order. The facility retains the discretion to monitor other calls for security purposes.
    9. Inter-facility Telephone Calls. The facility shall liberally grant requests for inter-facility family calls to discuss legal matters. For such calls, the detainee’s conversations shall be afforded privacy to the extent possible, while maintaining adequate security.
    10. Incoming Calls. The facility shall take and deliver telephone messages to detainees as promptly as possible. The facility shall enable indigent detainees to make a free return emergency call.
    11. Telephone Privileges in Special Management Units. Facility staff shall permit detainees in the Special Management Units (SMU) for disciplinary reasons to make direct and/or free calls as described above, except under compelling security conditions. These conditions shall be documented. Staff shall permit detainees in the SMU for administrative reasons (e.g., protective custody, suicide risk) to access telephones similar to detainees in the general population, but in a manner consistent with the security and safety requirements of detainees in these units.
    12. Telephone Access for Detainees with Disabilities. Consistent with 2019 NDS Standard 4.7 Disability Identification, Assessment, and Accommodation, the facility shall provide equal access to telephone services for individuals with disabilities. Detainees with disabilities shall be provided access to accessible telephone services on the same terms as detainees without disabilities are provided access to telephones. Except to the extent that there are time limitations, detainees using accessible telephone services shall be granted additional time, consistent with safety and security concerns. If accessible telephone services are not available in the same location as telephones used by detainees without disabilities, detainees with disabilities shall be allotted additional time to walk to and from the accessible telephone services location. Consistent with the order and safety of the facility, the facility shall ensure that the privacy of telephone calls by detainees using accessible telephone services is the same as other detainees using telephones.
  2. COVID-19 Modifications to Telephone Access. ICE directed facilities to ensure all detainees are able to make calls to the list of free legal service providers and consulates at no charge to the detainee or the receiving party.

C.    5.7 Visitation.

It is ICE’s policy that facilities holding detainees shall permit authorized persons to visit detainees within security and operational constraints.  Specific to access to counsel, facilities shall allow detainees to meet privately with their current or prospective legal representatives and legal assistants, and with their consular officials.

  1. Visitation Standards and Key Provisions.
    1. General. The facility shall establish written visiting procedures, including a schedule and hours of visitation, considering the visitation requirements of legal representatives among others. The facility may temporarily restrict visiting when necessary to ensure the security and good order of the facility.
    2. Visitor log. The facility shall maintain a log of all general visitors, and a separate log of legal visitors. The visitation logs shall comply with local policy and procedures.
    3. Incoming Property and Money for Detainees. Facilities are encouraged to allow visiting family members to bring detainees items such as legal documents.
    4. Legal Visitation for Detainees in Administrative and Disciplinary Segregation. Detainees in either administrative or disciplinary segregation shall be allowed legal visitation. If the facility administrator considers special security measures necessary, he or she will notify legal service providers of the security concerns prior to the meeting.
  2. Visits by Legal Representatives and Legal Assistants.
    1. General. During legal visitation, each detainee may meet privately with current or prospective legal representatives and their legal assistants.
    2. Hours. The facility shall permit legal visitation 7 days a week, including holidays. It shall permit legal visits for a minimum of 8 hours per day on regular business days, and a minimum of 4 hours per day on weekends and holidays. The facility shall provide notification of the rules and hours for legal visitation and post the rules prominently in the visiting room. On regular business days, legal visitation may proceed through a scheduled meal period in which case, the detainee shall receive a tray or sack meal after the visit.
    3. Persons Allowed to Visit. Subject to the restrictions stated below, attorneys and other legal representatives, legal assistants, translators and interpreters, and messengers may participate in legal visits.
    4. Related Administrative Matters.
      1. Identification of Legal Representatives and Assistants. Prior to each visit, all legal representatives and assistants shall provide appropriate identification and are subject to a search of their person and belongings for the purpose of ascertaining the presence of contraband at any time.
      2. Identification of Detainee to Be Visited. Legal service providers are not required to submit a detainee’s A-number as a condition of visiting. The facility shall make a good-faith effort to locate a detainee if provided with other information about the detainee.
      3.  Call-Ahead Inquiries. Each facility shall establish a written procedure to allow legal service providers and legal assistants to telephone the facility in advance of a visit to determine whether a particular individual is detained in that facility.
      4.  Pre-Representational and Other Legal Meetings. During the regular hours for legal visitation, the facility shall permit detainees to meet with prospective and current legal representatives and legal assistants. Legal service providers need not complete a Form G-28 to meet with a detainee.
      5. Private Meeting Room and Interruption for Head Counts. Visits between legal service providers or assistants and a detainee are confidential and shall not be subject to auditory supervision. Private consultation rooms shall be available for such meetings; however, staff may observe such meetings visually through a window or camera to the extent necessary to maintain security, as long as the staff member cannot overhear the conversation. Facility staff shall not be present in the confidential area during the attorney-detainee meeting unless the attorney requests the presence of an officer. Routine official counts shall not terminate attorney visits. On occasion, a situation may arise where private conference rooms are in use and the attorney wishes to meet in a regular or alternate visiting room. Such requests should be accommodated to the extent practicable, and such meetings afforded the greatest degree of privacy possible under the circumstances. Facility staff may terminate attorney visits to maintain security.
      6. Materials Provided to Detainees by Legal Representatives. The facility must provide for the exchange of documents between detainee and legal representative or assistant even when contact visitation rooms are unavailable. Documents or other written material provided to a detainee during a visit with a legal representative shall be inspected, but not read. Detainees may retain legal material received for their personal use. Quantities of blank forms or self-help legal material in excess of that required for personal use may be held for the detainee in their property. The detainee will be permitted access to these documents utilizing the established avenues of communication.
      7. Detainee Search. Generally, unless there is specific and articulable suspicion that contraband has been transferred to a detainee, detainees shall not be subjected to a strip search after a visit by an attorney, a legal assistant working under the supervision of an attorney, or an accredited representative. However, if standard operating procedures require strip searches after every contact visit with a legal representative, the facility must provide an option for non-contact visits with legal representatives in an environment that allows confidentiality and affords opportunity for the detainee and their representative to exchange documents.
      8.  Group Legal Meetings. Upon the request of a legal service provider or assistant, the facility may permit a confidential meeting (with no officer present) involving the requester and two or more detainees if the meeting would not unduly interfere with security and good order.
      9. Pro Bono List and Detainee Sign-Up. ICE/ERO shall provide the facility with the official list of pro bono legal services providers on a regular basis. The facility shall post the current list in detainee housing units and other appropriate areas. Any legal organization or individual on the current list may write the facility to request the posting and/or general circulation of a sign-up sheet. The facility will then notify detainees of the sign-up sheet’s availability in a language or manner that they understand and, according to established procedures, ensure coordination with the pro bono organization.
      10.  Legal Visitation Log. A separate log shall record all legal visitors, including those denied access to the detainee. The log shall include the reason(s) for denying access.
      11.  Availability of Legal Visitation Policy. The facility’s written legal visitation policy shall be available upon request.
  3. Consultation Visits for Detainees Subject to Expedited Removal
    1. General. A detainee subject to expedited removal who has been referred to an Asylum Officer is entitled by statute and regulation to consult with any persons of the detainee’s choosing, prior to the interview and while the Asylum Officer’s decision is under review. Because expedited removal procedures occur within short timeframes, each facility shall develop procedures that liberally allow the opportunity for consultation visitation in accordance with this standard.
    2. Method of Consultation. The facility shall facilitate consultation visitation by telephone and face-to-face.
    3. Persons Allowed to Visit for Consultation Purposes. Detainees subject to expedited removal may consult whomever they choose, in person or by phone, at any time, during the first 48 hours at the facility. Consultants may include attorneys and other legal representatives, prospective legal representatives, legal assistants, staff members of non-governmental organizations, and friends and family. All consultation visitors are subject to the same identification and security screening procedures as general visitors. If documented security concerns preclude an in-person visit with a particular individual, the facility shall arrange for consultation by telephone. If security reasons also preclude consultation by telephone, the facility shall immediately inform ICE/ERO.
    4. Privacy. Consultation visits, in person or by telephone, receive the same privacy as communications between legal representatives and detainees.
    5. Hours. Consultation visitation shall be allowed during legal visitation hours and during general visitation hours. However, the facility may ensure confidentiality during legal visitation hours only. If necessary, to meet demand, the facility will increase consultation visiting hours.
    6. Duration of Consultation Period. The consultation visitation period begins before any interview with an Asylum Officer and continues while the Asylum Officer’s determination undergoes review by the Supervisory Asylum Officer or Immigration Judge. The consultation visitation period ends with the issuance of a Notice to Appear, and the detainee’s placement in removal proceedings before an Immigration Judge. However, the detainee retains legal and other visitation privileges, in accordance with this detention standard.
    7. Admittance for Asylum Officer Interview. Detainees subject to Expedited Removal may bring and consult advisors during the Asylum Officer interview. The presence of persons to consult is also allowed during the Immigration Judge’s review of a negative credible fear determination, at the judge’s discretion.
    8. Log. The legal visitation log shall record consultation visits.
    9. Form G-28. Visitors, including an attorney or legal representative, are not required to file a Form G-28 as a condition of participating in a consultation visit or providing consultation during an Asylum Officer interview or Immigration Judge review of a negative credible fear determination.
  4. Other Special Visits
    1. Examinations by Independent Medical Service Providers and Experts. A medical and/or psychological examination by a practitioner or expert not associated with ICE/ERO or the facility can provide a detainee with information useful in legal or administrative proceedings. ICE/ERO will generally approve examinations for such purposes if the requested examination would not present an unreasonable security risk. If a detainee seeks an independent medical or physical examination, the detainee or their legal representative shall submit a written request to ICE/ERO. The request must provide the reason(s) for requesting such an examination. The facility shall provide a location for an independent examination approved by ICE/ERO but will not provide medical equipment or supplies. Neither ICE/ERO nor the facility shall assume the costs of the examination, which shall be at the detainee’s expense. The examination will be arranged and conducted in a manner consistent with security and good order. ICE/ERO will advise the requester, in writing, of any reasons for denying a request.
  5. COVID-19 Modifications to Visitation.
    1. In its March 27 Memorandum to Detention Wardens and Superintendents, ICE affirmed detainee access to legal representation remains a paramount requirement and should be accommodated to the maximum extent practicable. Legal visitation must continue unless determined to pose a risk to the safety and security of the facility. To that end, ICE directed that non-contact legal visitation (e.g., Skype or teleconference) should be offered first to limit exposure to ICE detainees but in-person contact visitation should be permitted if determined essential by the legal representative. The ultimate approving authority for legal visits however, lies with the Warden or Facility Administrator. ICE instruction to the facilities included the facility should notify its local Field Office Director as soon as possible of any denied legal visits.
    2. In its subsequent COVID-19 Pandemic Response Requirements, ICE informed the field that it continues to explore opportunities to enhance attorney access while legal visits are impacted. For facilities at which immigration hearings are conducted or where detainees are otherwise held who have cases pending immigration proceedings, this may include:
      1.  Adding attorneys of record to the Talton Pro-bono platform,
      2.  Requiring facilities to establish a process for detainees/immigration attorneys to schedule telephonic appointments and facilitate the calls,
      3.  Leveraging technology to facilitate attorney/client communication, and
      4. Working with detention contractors and telephone service providers to ensure all detainees receive “some number” of free calls per week. ICE also directed facilities to communicate with the public about any changes to facility operations including visitation programs.

D.   6.3 Law Libraries and Legal Material.

It is ICE’s policy that facilities shall permit detainees access to a law library, and provide legal materials, facilities, equipment, printing and copying privileges, and the opportunity to prepare legal documents.

  1. Access to Counsel Standards and Key Provisions.
    1. Photocopying and Printing Legal Documents. The facility shall ensure detainees can obtain copies of legal material when such copies are reasonable and necessary for a legal proceeding involving the detainee. Detainees may not be charged for copying or printing a reasonable amount of legal material. Staff may not read a document that on its face is clearly related to a legal proceeding involving the detainee.
    2. Envelopes and Stamps for Legal Documents. The facility will provide indigent detainees with free envelopes and stamps for mail related to a legal matter, including correspondence to a legal representative, potential legal representative, or any court. Indigent detainees will be permitted to mail at least five pieces of special correspondence weekly.
    3. Notaries, Certified Mail, and Miscellaneous Needs Associated with Legal Matters. The facility shall provide assistance to any detainee who requests a notary public, certified mail, or other such services to pursue a legal matter, and if the detainee is unable to meet the need through a family member, friend, or community organization.
    4.  Retaliation Prohibited. Detainees may not be subjected to reprisals, retaliation, or penalties because of a decision to seek judicial relief on any matter, including
      1. The legality of their confinement,
      2. The conditions or treatment while under detention,
      3. An issue relating to their immigration proceedings; or
      4. Any allegation that the Government is denying rights protected by law.
    5. Personal Legal Materials. The facility shall permit detainees to retain all personal legal material upon admittance to the general population or segregation, unless such material creates a safety, security, and/or sanitation hazard. The facility may require detainees with a large amount of personal legal material to place some of the material in a personal property storage area, with access permitted during designated hours. The facility shall grant requests for access to such stored legal material as soon as possible, but not later than 24 hours after receipt of the detainee request, unless documented security concerns preclude action within this time frame.
    6. Law Library Access for Detainees in Special Management Units. Detainees housed in Administrative Segregation or Disciplinary Segregation units shall have the same law library access as the general population unless compelling security concerns require limitations.
    7. Assistance to Detainees with Disabilities, Limited English Proficient (LEP) Detainees, and Illiterate Detainees.
      1. Detainees with disabilities, LEP detainees, and illiterate detainees who wish to pursue a legal claim related to their immigration proceedings or detention, and who request assistance or otherwise indicate difficulty accessing or comprehending the legal materials, must be provided assistance beyond access to a set of English-language law books.
      2. The facility shall assist detainees who are illiterate, LEP, or have disabilities in using the law library. Facilities shall establish procedures to meet this requirement, such as (a) having the facility’s law librarian assist the detainee with legal research, (b) permitting the detainee to receive assistance from other detainees in using the law library, (c) assisting the detainee in contacting pro bono legal-assistance organizations from the ICE/ERO-provided list, and (d) securing interpretation or translation services for an LEP detainee.
      3.  In the case of detainees with disabilities, consistent with the procedures outlined in Standard 4.7 Disability Identification, Assessment, and Accommodation, providing reasonable accommodations and/or auxiliary aids and services identified through the facility’s reasonable accommodation process.
      4.  If such attempts are unsuccessful in providing the detainee sufficient assistance, the facility shall contact ICE/ERO to determine appropriate further action.
  2. COVID-19 Modifications to Law Libraries and Legal Material. ICE recommended facilities extend law library hours of operation and stagger detainee access to improve social distancing.

E.  6.4 Legal Rights Group Presentations.

It is ICE’s policy that facilities shall permit authorized persons to make presentations to groups of detainees for the purpose of informing them of U.S. immigration law and procedures, consistent with the security and orderly operation of each facility. ICE/ERO encourages such presentations, which instruct detainees about the immigration system and their rights and options within it.

  1. Access to Counsel Standards and Key Provisions.
    1. Video Presentations. 
      1. The facility shall play ICE/ERO-approved video presentations on legal rights at the request of ICE/ERO. The facility shall provide regular opportunities for detainees in the general population to view such videos.
      2. The facility shall provide at least one opportunity to view the video for detainees in administrative or disciplinary segregation, unless precluded by security concerns regarding a particular detainee.
    2.  In-person Group Presentations.
      1. Attorneys and legal representatives including EOIR-accredited representatives interested in making a group presentation on legal rights must submit a written request to ICE/ERO.
      2. Presentations are open to all detainees, regardless of the presenter’s intended audience, except when a particular detainee’s attendance would pose a security risk. If a detainee in segregation cannot attend for this reason, either the detainee or the presenter(s) may request alternative arrangements.
      3. The facility may limit the number of detainees at a single session. Therefore, the presenter must be prepared to conduct several presentations, depending on the number of interested detainees or the need to separate groups of detainees for safety and security. The presenter may contact the facility the day before the presentation to determine the number of sessions required.
      4. The facility shall select and provide an environment conducive to the presentation, consistent with security. Once detainees have assembled, the presenters will have a minimum of one hour to make the presentation and to conduct a question-and-answer session.
      5. Presenters may distribute brief written materials to detainees and to ICE/ERO and/or facility staff at the same time. These materials must have been approved in advance by ICE/ERO. Distribution of unapproved materials will constitute grounds for discontinuation of presentation privileges.
      6. The facility shall permit presenters to meet with small groups of detainees to discuss their cases following a group presentation, consistent with security and the orderly operation of the facility. ICE/ERO and facility staff shall not be present during these meetings. Standard 5.5 “Visitation” sets forth the rules and procedures governing one-on-one counseling.
  2.  COVID-19 Modifications to Legal Rights Group Presentations. In March, ICE suspended all legal orientation programs except for government-sponsored Executive Office for Immigration Review (EOIR) Legal Orientation Program (LOP) presentations provided at a limited number of detention facilities. At the time of publication, most LOP providers were conducting legal orientations remotely.

F.   7.2 Detainee Transfers.

It is ICE’s policy that inter-facility transfers occur for a variety of reasons. In deciding whether to transfer a detainee, ICE will consider whether the detainee is represented before the immigration court. If a detainee is represented, ICE will explore alternatives to transfer, especially where the attorney is located within reasonable driving distance of the detention facility and where immigration court proceedings are ongoing.

  1. Detainee Transfers Standards and Key Procedures.
    1. Notification Procedure.
      1. Detainees. The detainee shall not be notified of the transfer until immediately prior to leaving the facility at which time he or she shall be notified in a language or manner he or she understands that he or she is being moved to a new facility within the U.S., and not being deported.
      2. Attorney of Record. At the time of transfer, ICE will provide the detainee, in writing, with the name, address, and telephone number of the facility to which he or she is being transferred and contact the attorney of record.
    2. Medical Procedures and Information Required for Transfer.
      1.  ICE policy has no provision to inform the detainee or the detainee’s attorney of record of the name and location of the medical facility to which he or she has been transferred temporarily.
  2. COVID-19 Modifications to Detainee Transfers. There are none.   

II. Accommodations Provisions, Access to Counsel

The 2011 Performance-Based National Detention Standards advanced uniform conditions of confinement, program operations and management expectations within the ICE detention system. In February 2013, ICE issued a revised version of PBNDS 2011 containing corrections and clarifications. In December 2016, ICE revised PBNDS 2011 incorporating federal legal and regulatory requirements and prior ICE and ICE Enforcement and Removal Operations (ERO) policies and policy statements. The 2019 National Detention Standards reversed course, deferring to local policy and practice in most matters. Carried forward as universal expectations, however, are these requirements as they relate to access to counsel.

A.   Disability Accommodation and Section 504 of the Rehabilitation Act.

ICE detention facilities are required to comply with Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, as amended (Section 504), which prohibits discrimination based on disability and requires facilities to provide detainees with disabilities equal access to its programs and activities through the provision of appropriate accommodations, modifications, and services. When ICE reissued the National Detention Standards in 2019, it included a new detention standard, 4.7 Disability Identification, Assessment, and Accommodation, establishing processes in order that detention facilities comply with the requirements of Section 504. Targeted revisions were also made to other standards to address more specifically the needs of detainees with disabilities in various contexts including access to counsel and are noted in this handbook.

B.    Language Access.

Pursuant to Executive Order 13166, “Improving Access to Services for Persons with Limited English Proficiency” (Aug. 2000), and Title VI of the Civil Rights Act of 1964, language access requires detention facilities to identify detainees with limited English proficiency (LEP); that is, detainees who do not speak English as their primary language and who have limited ability to read, speak, write, or understand English, and to provide them with meaningful access to programs and activities through language interpretation and translation services. The facilities’ obligation to provide meaningful access to LEP detainees extends to all aspects of detention, including intake, disciplinary proceedings, placement in segregation, sexual abuse and assault prevention and intervention, staff-detainee communication, mental health, and health care. Meaningful access may be accomplished through professional in-person or telephonic interpretation and translation services or bilingual personnel. Of note, ICE stipulates except in emergencies, other detainees should not be used as interpreters or translators.

Generally, all written materials provided to detainees must be translated into Spanish and other frequently encountered languages. Oral interpretation or other language assistance must be provided to any detainee who speaks a language in which written material has not been translated or who is illiterate.

ICE identified areas where it determined language access is particularly important and included specific provisions throughout the updated NDS. These provisions include ICE assisting the facilities with language services by providing contact and other necessary information so that the facility can secure interpretation and translation services at no additional cost. ICE will also supply the facility with Spanish translations of frequently used ICE forms. Where necessary, ICE can also assist the facility in obtaining translations of pertinent materials and forms in other languages.

C.    COVID-19 Modifications to Accommodation Standards, Access to Counsel.  

There are none. 

III.  Reporting Violations of Detention Standards to DHS

Violations of the detention standards can be addressed directly with DHS at various levels and depending upon the issue, targeting your correspondence may lead to a quicker resolution.

This section includes a description and contact information for the various offices that accept complaints regarding violations of the standards.

For issues concerning specific facilities, it may be best to reach out to the corresponding ERO Field Office before elevating your complaint to one of the other offices.  If the problem cannot be resolved with the field office or if it is pervasive throughout the field office’s jurisdiction, one of the other offices may be more appropriate. The offices that accept general complaints about DHS personnel can also accept complaints of access to counsel issues, particularly where those issues are inhibiting a detainee’s due process rights. Keep in mind, you may be directed to address your complaint with the relevant field office or the ICE Detention Reporting and Information Line (DRIL) before proceeding with your complaint. As such, you should maintain copies of your correspondence with the field office or DRIL and any relevant case and tracking numbers assigned. 

Complaints should always include the relevant language from the standard that applies to that  facility and should be framed in terms of the violation of the standards.  To find the applicable set of standards for the facility about which you have a concern, download the Dedicated and Nondedicated Facility List available on DHS’ facility inspection website. Prior to the pandemic, this spreadsheet was updated monthly.  Also available at this website are the most recent inspection reports for most facilities and up-to-date reports on inspection waivers.

DHS/ICE Offices that accept Complaints or Concerns about Detainees’ Access to Counsel

ERO Field Offices: Issues can sometimes be resolved by reaching out to the field office in which the issue arose. It is good practice to try to resolve issues at the Field Office level first, before elevating to Headquarter levels.  Be sure to maintain copies and refer to any prior correspondence when following up or reaching out to additional offices.

ICE Office of Detention Legal Access (ODLA): The ODLA should be contacted when issues arise about access to counsel (e.g. visitation, free calls to legal representatives), group presentations, law libraries, and any other issues related to detained individuals’ legal cases. Before contacting ODLA however, attempt to resolve the issue with the Field Office, above.

ICE Detention Reporting and Information Line (DRIL): The DRIL line allows callers, including detainees, to communicate directly with ICE for answers to questions and to resolve concerns, including access to counsel issues. When a complaint to this line is made, a tracking number is issued and should be used for further correspondence with DRIL or other offices.

  • Phone: 1-888-351-4024, Detention Speed Dial Code: 9116#


DHS/ICE Offices that accept Other Complaints or Concerns about Detainees or Detention

DHS Office of Civil Rights and Civil Liberties (CRCL): CRCL investigates allegations of discrimination by DHS employees or contractors. Complaints to this office may include access to counsel issues if such issues inhibit due process. Examples of violations of due process could include instances of an individual denied access to their attorney in a timely manner or limited access to services due to limited English proficiency.

  • Phone: 202-401-1474, 1-866-644-8360 (toll free), Detention Speed Dial Code: 9097#
  • Fax: 202-401-4708
  • Email: CRCLCompliance@hq.dhs.gov
  • Address: Office for Civil Rights and Civil Liberties, U.S. Department of Homeland Security, Building 410, Mail Stop #0190, Washington, D.C. 20528

DHS Joint Intake Center (JIC): The JIC handles allegations of misconduct by ICE employees. Complaints received by the JIC are screened by the Office of Inspector General and, when warranted, are returned to the JIC for appropriate action by the ICE Office of Professional Responsibility or the Customs and Border Protection Office of Internal Affairs

  •  Phone: 1-877-2INTAKE, Detention Speed Dial Code: 5663#

DHS Office of Inspector General (OIG): The OIG operates a hotline and online platform to report fraud, waste, abuse, mismanagement, and other criminal or noncriminal misconduct. It also addresses civil rights and civil liberties abuses involving custodial deaths, denial of rights including due process rights related to access to counsel, profiling, and uses of force.

  • Phone: 1-800-323-8603 or 1-844-889-4357 (TTY), Detention Speed Dial Code: 518#
  • Fax: 202-254-4297
  • Address: DHS OIG/MAIL STOP 0305, Attn: Office of Inspector General - Hotline, 245 Murray Lane SW, Washington, D.C., 20528-0305

IV. Sample Language

The following letter provides an example of how you might raise a legal access issue. The narrative may change given your relationship to the affected individual. In all correspondence, reference the relevant language in those standards.

Date:
Detainee Name: Mr. X
Detainee A#: 987654321
Facility: Detention Facility

To Whom it May Concern:

I am writing about the above-named individual who is currently detained at Detention Facility. Mr. X contacted me to assist him with a problem he is experiencing at the facility and cannot resolve on his own.

Mr. X reports that since he was transferred to Detention Facility on March 13, 2020, he has not been able to access the law library to research or print materials and forms for his case.  He has conveyed his concern to the Detention Reporting and Information Line (Tracking # 1-234567-8910). [If there is additional procedural history, it may be beneficial to include as well]. He reports that he must access the law library to prepare his immigration case. [State whether time is of the essence and what the critical date is.]

Mr. X requests that the facility resolve this situation. The 2019 NDS 6.3 Law Libraries and Legal Materials provides [or state the governing detention standard and corresponding language], “It is ICE’s policy that facilities shall permit detainees access to a law library, and provide legal materials, facilities, equipment, printing and copying privileges, and the opportunity to prepare legal documents.”

Kindly advise if there is any other information, we can provide to resolve Mr. X's request for help.  

Thank you for your time and attention to this matter.

Name
Email Address
Phone Number

    Dr. Dora Schriro

    Special Advisor, Commission on Immigration

    Dr. Dora Schriro is a career public servant who has served as an executive-level administrator, policy maker, and homeland security advisor. Over the past 25 years, she was appointed to lead three state and two city correctional and enforcement agencies and is the founding Director of the ICE Office of Detention Policy and Planning. Dr. Schriro is recognized nationally as an expert in the fields of Corrections and Immigration Detention. In 2009, while Senior Advisor on Immigration Detention and Removal to DHS Secretary Napolitano, she authored the report, Immigration Detention Overview and Recommendations. It was adopted by DHS and ICE as the U.S. Government’s template for reforming civil detention. Dr. Schriro has served on the Commission on Immigration since 2014.

    Elizabeth Taufa

    Staff Attorney, Commission on Immigration

    Elizabeth Taufa is a staff attorney with the American Bar Association’s Commission on Immigration in Washington, D.C. working on the Detainee Correspondence Project.  Previously, Elizabeth represented children in removal proceedings as a justice Americorps attorney at Catholic Charities of the Archdiocese of Boston and worked as an attorney advisor in the Office of Legal Access Programs at the Executive Office for Immigration Review.  She is a native of Winchester, Virginia and holds a bachelor’s degree from the State University of New York at Buffalo and a juris doctor from Northeastern University School of Law where she completed internships with the ABA’s Immigration Justice Project in San Diego, Greater Boston Legal Services, and the Office of Immigration Litigation. She also volunteered with the International Refugee Assistance Project (IRAP).