A federal judge in Minnesota extended an order requiring U.S. immigration authorities to provide detained immigrants meaningful access to legal counsel shortly after arrest and before they are moved out of state, according to court filings and testimony discussed in court. On Thursday, U.S. District Judge Nancy Brasel issued the extension as a preliminary injunction, maintaining a schedule meant to protect detainees’ due-process rights while their cases proceed.
In her order, Brasel required that people held at the Bishop Henry Whipple Federal Building in Minneapolis be able to contact an attorney within one hour of being detained. She also maintained an additional safeguard, requiring that detainees not be transferred out of state for the first 72 hours of detention, giving both detainees and lawyers time to communicate and, if needed, seek action from the courts to stop transfers.
Brasel’s decision came after she had previously issued a temporary restraining order on Feb. 12, saying it appeared the federal agency had not adequately planned for how to protect constitutional rights during what the government described as the immigration crackdown operation known as Operation Metro Surge. She extended the earlier measures on Thursday after finding that the order’s protections were still necessary as proceedings continued.
In the Thursday ruling, Brasel wrote that “Due process is not a game of keep-away,” and said ICE recognized detainees’ right to access counsel in theory and in written policy but not in practice. She said ICE had placed “obstacle after obstacle” in front of detainees and their attorneys, blocking communication between clients and counsel.
Brasel said her initial order required the government to ensure detainees could contact lawyers quickly and that the transfer limitation would prevent the government from depriving attorneys of the chance to halt movement out of state. Her preliminary injunction on Thursday extended those requirements and kept them in place pending further proceedings in the case brought by civil-rights advocates.
Advocates for Human Rights filed the lawsuit in January, arguing that immigrants in detention have a fundamental right to access counsel. In a statement, the group’s executive director, Michele Garnett McKenzie, said the ability to speak freely and privately to an attorney is crucial to due process and essential to protecting people from unjust rulings, coercive detention and life-threatening deportation.
At a hearing last week, an attorney for the plaintiffs, Jeffrey Dubner, told the judge that the government’s compliance with the Feb. 12 temporary restraining order had been “fitful at best.” In court, Jeffrey Dubner described ongoing problems with getting timely access to counsel, and the plaintiffs argued that the barriers undermined the practical ability of detainees to consult privately with their attorneys.
The U.S. Department of Homeland Security and ICE did not immediately respond to emails seeking comment on the Thursday ruling. The government’s position, presented through a Department attorney, emphasized that conditions had changed since earlier in the crackdown, while local immigration attorneys testified that they still faced difficulty reaching clients and obtaining information about whether detainees were present or had been transferred to larger facilities in Texas.
During the Thursday proceedings, the government attorney Christina Parascandola told Brasel that ICE had been complying with the court order and that extending it with a preliminary injunction was unnecessary. She said conditions at the Bishop Henry Whipple facility “returned to a more manageable pace” as officials described a wind-down of the surge. The judge’s decision, however, weighed against that view, based on testimony and the continuing need for attorney access and private communication.
Even as government officials said Operation Metro Surge had been declared over, and they said the number of ICE officers in Minnesota had receded from a high of around 3,000 to close to previous levels of over 100, local attorneys told the court that the practical barriers persisted. Hanne Sandison testified that when she and other attorneys were allowed inside the facility under the judge’s order to see conditions, she was unable to get the phones to work. In the single location where the phones did work, she said, ICE officers would have been able to hear every word spoken—an issue the plaintiffs argued undermined the confidentiality needed for attorney-client communication.