Protecting Against Out-of-District Transfers, and Helping to
Locate Detainees
Following
a large-scale worksite raid such as the one at MSE, attorneys
and advocates will need to rely on any tool available to locate
those who are detained, which is essential to ensuring that the
detainees are provided access to counsel and that their children
and other dependants do not go uncared for. One tool that has
been used effectively is the permanent injunction in
Orantes-Hernandez v.
Gonzalez, No. 82-01107 MMM (VBKx) (C.D. Cal. Nov. 26,
2007) (modified, consolidated injunction), which applies
nationwide to nationals of El Salvador detained by immigration
authorities. Although the injunction’s protections apply only
to Salvadorans, using these provisions may indirectly benefit
workers of other nationalities detained in the same raid.
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We have
successfully used two provisions of this injunction to prevent
the transfer of detained Salvadorans to detention centers far
removed from their homes, families, and available low-cost or
free legal services. As described in more detail below, the
Orantes injunction contains provisions that (1) require
immigration authorities to provide a phone number that relatives
and counsel may call to obtain information about the location of
detained Salvadorans and (2) restrict the transfer of detained
class members to locations outside of the district where they
were apprehended.
Designated phone number. Paragraph 6 of the injunction
requires that ICE designate regional phone numbers that
relatives and counsel may call to obtain information regarding
detained class members. ICE’s webpage currently titled “Information
for Families of ICE Detainees” contains a link to a list of
ICE’s Detention and Removal Operations (DRO)
field offices,
which includes for each office the office director’s name, the
office’s address and phone number, and the geographical area for
which the office is responsible.[*] Under the injunction, a
Salvadoran detainee’s relative or attorney who calls a DRO field
office during normal working hours and provides the detainee’s
name to the ICE officer who answers is to be informed of the
detainee’s current location. If the detainee is scheduled for
departure from the U.S., the inquiring individual should also be
informed of the date and time and the place from which the
detainee is scheduled to leave. If an attorney informs the
officer that he or she wishes to communicate with a detained
class member who is scheduled for voluntary departure and has
not been able to do so, ICE “shall not expel the plaintiff class
member until such counsel has had a reasonable opportunity for
such communication.” Advocates have had difficulty obtaining
timely information through this phone system, and if you are
unable to obtain detainee location information within the same
business day that you call, please contact the class counsel
listed below.
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Orantes
Injunction’s Transfer Provisions
Paragraph 11 of the Orantes injunction provides that
immigration authorities “shall not transfer detained
class members who are not represented by counsel from
the [U.S. Immigration and Customs Enforcement] district
where they are apprehended for at least seven (7) days,”
in order to give them an opportunity to obtain counsel.
Class members who obtain counsel may be transferred
outside of the district during the seven-day period
immediately following their apprehension, but in such
cases the venue for the deportation or removal case
remains in the district, and the class member must be
returned to the district sufficiently in advance of any
proceedings to allow him or her to consult with counsel.
If the detained class member is transferred outside of
the district of their apprehension after he or she
obtains counsel, ICE must return the class member to the
district “within a reasonable time after receiving a
request to do so from the detainee’s counsel.” This
provision of the injunction is critical for ensuring,
first, that detainees are able to secure counsel for
their removal proceedings. Transfer of detainees out of
the area where they were apprehended cuts them off from
friend and family networks that can help them obtain
free or low-cost counsel. Once detained Salvadorans
retain counsel, they may, under the injunction, be
transferred out of the district where they were
detained. At that point, however, the injunction’s
protections function to ensure that detainees can keep
the same counsel and do not have to restart immigration
proceedings in a new jurisdiction.
As a practical matter, ICE may be unwilling to transfer
detained Salvadorans outside of the area where their
counsel is located because ICE does not want the cost or
hassle of moving the detainees back and forth between the
new detention location and the place where their
counsel, and court case, remains.
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Restrictions on
transfer. The injunction provides an important
protection by barring for at least seven days the transfer of
detained Salvadorans out of the area in which they were
apprehended, unless a detainee has obtained counsel. And with
respect to detained Salvadorans who have obtained counsel, the
injunction protects that precious attorney-client relationship
even in the event that the detainee subsequently is transferred
far away from his or her counsel. Although these provisions
apply only to Salvadorans, enforcing these rights for
Salvadorans often has an indirect, positive effect on
non-Salvadorans who are detained at the same time as Salvadorans
(i.e., during the same raid). For example, on the Friday
afternoon following the MSE raid we learned that all the
detained women, including the Salvadoran women, were scheduled
to be transferred to a detention facility in Arizona. As a
result of our advocacy to ensure that the injunction’s transfer
provision, which barred the transfer of the Salvadoran women,
was honored, ICE agreed not to transfer any of the women
out of California. And, probably because there was insufficient
detention space in the local area, all the women were released
that Friday night.
Resources (transfer-related):
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A copy of the current
Orantes injunction is available
here.
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The list of phone numbers
family members or counsel should use to find the location of
detained Salvadorans (i.e., contact information for ICE
Office of Detention and Removal Operations offices) is
available
here. Call the phone number for the field office
closest to where the detained Salvadoran was taken into
custody.
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Attorneys and legal workers
who experience problems getting ICE personnel to honor these
provisions of the Orantes injunction should contact
Karen Tumlin or
Linton Joaquin, counsel for the Orantes class.
Lessons learned
(transfer-related):
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[*] The “Information
for Families of ICE Detainees” webpage also can be accessed from
a link at the bottom right-hand corner of ICE’s
home page, www.ice.gov. |
