Safeguarding Access to Counsel

     Even before the MSE raid, the local raids rapid response network had assembled a list of reputable immigration attorneys in the area who belonged to NLG or AILA and who had agreed to provide free legal consultations to workers detained during a raid.  In the days following the MSE raid, the network scrambled to assign attorneys to represent the released workers at their processing interviews and appointments concerning the terms of their release.  The goal, of course, was to ensure that every worker with a claim to remain in the U.S. was able to do so.  It was a Herculean task simply to identify workers with processing appointments in the week following the raid and to assign volunteer attorneys to meet them for those interviews. 
 

     The difficulty of coordinating representation for workers, however, quickly became overshadowed by the fact that the attorneys were being excluded from these interviews where their clients were being subjected to lengthy and far-reaching interrogations.  Workers who refused to answer questions unless their counsel were present were subjected to particularly aggressive questioning, and some were even threatened with detention when they asked for their attorney to be present.

     As a result of this gross denial of counsel, NILC and the ACLU Foundation of Southern California filed a lawsuit (National Lawyers Guild v. Chertoff ) challenging ICE’s policy and practice of excluding attorneys from these interviews and seeking a temporary restraining order barring future interviews until the practice was ended.  The lawsuit was filed on behalf of the NLG-L.A. chapter as well as an MSE worker who had not yet attended his processing interview but who, based on ICE’s practice of excluding counsel from interviews with detainees, reasonably feared that his counsel would not be allowed to represent him during that hearing. 
 

     The litigation initially triggered a stay of any future interviews with the MSE detainees until the government could ensure that their attorneys were not being excluded from the interviews.  Ultimately, the government agreed to a favorable settlement under which ICE would allow attorneys to accompany detained MSE workers to all processing interviews as well as to appointments concerning their conditions of release. 

     At this point, the response network began assigning attorneys to each of the workers who had been detained in the MSE raid.  Two private attorneys representing the NLG and AILA chapters helped screen and coordinate the over 40 immigration attorneys who agreed to be part of the network.  In order to be part of the network, the private attorneys agreed to take a maximum of 4 cases either pro bono or at a reduced rate set by the network.  Because we strongly believe that ICE, in conducting the MSE raid, had violated workers’ Fourth Amendment right to be free of illegal searches and seizures, the attorneys also had to agree to pursue the same legal strategy of filing a motion to suppress the evidence for workers who had been placed in removal proceedings as a result of the evidence ICE obtained during the raid. 

     Finally, in order to ensure that workers continue to have access to legal counsel and are able to fight their legal cases if they choose to, the network has been raising funds to establish a workers’ legal defense fund that is administered by CHIRLA.  The funds raised will be divided equally among all workers who retain network attorneys.  Because the limited funds will not be enough to cover all the legal costs, the network also has been able to secure an interest-free loan so that workers can borrow the rest of the money not covered by the grant received from the fundraising efforts.  A worker who receives a loan will not have to pay it back until his or her legal case is resolved.  The network drafted a one-page explanation of the workers’ legal defense fund and a one-page contract for workers to sign so that CHIRLA can issue checks directly to the attorneys they retain. 

     The combination of our legal strategy for safeguarding workers’ right to counsel and our efforts to raise funds for the workers’ legal defense fund makes us confident that workers detained in the MSE raid will be able to secure legal counsel.  This will greatly increase their ability to successfully challenge any attempt by ICE to deport them based on ICE’s actions during the MSE raid, and we hope that the immigration judge in each case will terminate the immigration proceeding against the respective worker who prior to the raid had been gainfully employed and contributing to our society and economy.

Resources (safeguarding access to counsel): 

• A copy of the complaint filed in National Lawyers Guild v. Chertoff is available here.

Lessons learned:

• It is important to have bilingual attorneys available to attend all processing interviews. 
   

• Attorneys must be well versed in their rights and prepared to terminate the processing interview of their clients if they are not given access to the interview.

Conclusion

     Although they cause untold suffering, government efforts to crack down on illegal immigration by raiding worksites where immigrant workers are likely to be employed are mainly a smokescreen.  Even when they result in the detention of hundreds of workers who may or may not be authorized to work in the U.S., ultimately these military-style raids succeed in removing from the U.S. only a miniscule fraction of the 12 million undocumented immigrants who live and work among us.  The raids’ most salient effect is to foment fear and thus paralyze entire communities and push undocumented immigrants deeper into the shadows, where they can be more brutally exploited.  Broad immigration reform would be the only rational government response to the current situation — and the only solution that would benefit the country as a whole.  Until our lawmakers summon the courage to do the reasonable thing, a combination of organizing, communication, and legal strategies are needed to expose the inhumanity of these raids and to hold ICE accountable for the countless civil rights violations its officers are committing against immigrants and U.S. citizens alike.

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