Federal judge orders DHS to give Minnesota detainees access to lawyers

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A federal judge ordered the Department of Homeland Security to provide prompt access to lawyers for immigrants detained in Minnesota after they are taken into custody and before they are transferred out of state. U.S. District Judge Nancy Brasel issued the emergency restraining order Thursday, directing DHS to change how it handles detainee access to counsel at the Bishop Henry Whipple Federal Building, on the outskirts of Minneapolis.

Brasel said detainees at the facility faced logistical barriers to contacting legal counsel that made it likely DHS had infringed constitutional rights. She characterized the problem as one of practical access, saying the government’s transfer and detention practices created obstacles that could prevent effective representation.

The order is temporary and is set to last two weeks unless Brasel extends it. In her 41-page ruling, Brasel rejected DHS arguments that changes to improve access would lead to “chaos,” according to the ruling’s text.

Brasel said plaintiffs’ evidence showed detainees are moved quickly, frequently, and without notice, which she said prevents attorneys from learning where their clients are or how long they will be held. She also cited difficulties in locating detainees, saying that transfers happen so fast that DHS can struggle to find them, and that an online system used to find detainees is not always updated accurately or in a timely manner.

The judge also pointed to limits on phone access and the circumstances under which calls occur. She said detainees appear to be offered one phone call, often in earshot of Immigration and Customs Enforcement personnel, and that the call is frequently used to contact family members rather than counsel. Brasel also said the list of free and low-cost legal-service providers given to detainees is not always accurate, and she found that federal agents have rebuffed attorneys trying to reach detainees in person.

Brasel further said detainees are sometimes pressured to sign voluntary deportation agreements without being allowed to talk to counsel. “All of these barriers make it difficult — if not impossible — for attorneys to effectively represent their clients,” the judge wrote, according to the text provided.

The order requires DHS to ensure that every noncitizen taken into custody and held at Whipple is given the opportunity to contact an attorney within one hour of detention and before any transfer out of state. It also spells out how access must be provided, including requiring detainees be given an accurate list of legal service providers, receive free and private telephone access, and be allowed to contact their lawyer without being limited in the number of calls.

Brasel said attorneys must be able to visit clients at the facility in a private room seven days a week, and she ordered that detainees not be transferred out of state for the first 72 hours of their detention. The judge also directed DHS to inform detainees where they will be transferred and to provide them access to the telephone until they can reach an attorney or their family.

The lawsuit was filed by the Advocates for Human Rights and a detainee challenging access to lawyers at the Whipple facility. Attorney Jeffrey Dubner told Brasel that detainees are allowed to make phone calls, but that ICE personnel are typically nearby. Justice Department attorney Christina Parascandola told the court that detainees at the facility have access to counsel and unmonitored phone calls at any time and for as long as they need, but she conceded in court that she had never entered the Whipple facility.

Democracy Forward President Skye Perryman, whose organization is part of the plaintiffs’ legal team, said in a statement that access to a lawyer is “not optional,” calling it a “fundamental right in America.” DHS officials did not immediately respond to a request for comment.