Five organizations that provide legal services to people in immigration detention sued U.S. Immigration and Customs Enforcement on Thursday, accusing the agency of improperly keeping detainees from accessing legal counsel.

The organizations are represented by the American Civil Liberties Union, which on Wednesday dropped a Freedom of Information Act suit demanding ICE turn over records of its compliance with right-to-counsel requirements.

Americans for Immigrant Justice, Florence Immigrant and Refugee Rights Project, the Immigration Justice Campaign for the American Immigration Council, Immigration Services and Legal Advocacy, and Refugee and Immigrant Center for Education and Legal Services sued ICE and the Department of Homeland Security on their own behalf and on behalf of clients detained in four ICE facilities. ICE is falling short of its own requirements about allowing lawyers to communicate with clients in immigration detention, making access to counsel functionally nonexistent, according to the complaint. 

"All attorneys understand the importance of being able to communicate with your clients; that is the bedrock of legal practice," Eunice Cho of the American Civil Liberties Union, who is representing the legal organizations, told Law360. "In ICE detention, it is impossible to make even the most basic communication with clients, and that exacerbates with the right-to-counsel crisis in detention centers."

The suit is brought on behalf of immigrants detained in Krome Detention Center in Miami, Florida, which is managed by ICE directly, according to the complaint, as well as the Florence Correctional Center in Florence, Arizona; Laredo Processing Center in Laredo, Texas; and the River Correctional Center in Ferriday, Louisiana, whose operations ICE contracts out to private prison companies or local prison systems.

Though the problem is systemic, these detention centers stand out because it is particularly difficult for attorneys to contact or physically meet their clients in those centers, according to Cho. All four centers are served by longstanding legal services organizations, such as the Florence Immigrant and Refugee Rights Project, which focuses on detainees at the Florence Correctional Center. 

Though immigrants detained by ICE are in civil detention, their effective access to counsel is substantially worse than that of defendants in criminal proceedings or of people incarcerated in prisons, according to the complaint. Prisons and pretrial detention centers near the ICE facilities allow lawyers to visit their clients and meet with them privately, including the TGK Correctional Center in Miami and the Central Arizona Detention Center in Florence, according to the complaint.

"The remedies that we're asking for are relatively modest and the government has been able to implement these remedies in other detention facilities and indeed in prisons and jails," Cho told Law360. "This is trying to bring up ICE detention facilities to the standards of other carceral facilities."

All the detention centers have fewer than one private, unsurveilled visitation room per 100 detainees, according to the complaint. When lawyers are allowed to enter the facilities at all, they mostly communicate with clients through plexiglass walls or slots in opaque metal partitions, or in open visitation rooms, according to the complaint. Telephone communications are also monitored by ICE, and can cost up to 40 cents a minute. There is virtually no space for immigrants to feel safe discussing privileged or sensitive information with their lawyers, according to the complaint.

ICE facilities also prevent lawyers from using electronics such as computers, printers and phones in their facilities, making it more difficult to do their jobs, and also deny visitation rights and avenues of communication for nonlawyers related to immigrants' cases, such as interpreters, medical experts, legal assistants and social workers, according to the complaint.

Communication by mail and exchanging documents is also prohibitively difficult, according to the complaint, both because of the remote locations of many of the facilities and because facility personnel delay mail deliveries. Attorneys for legal services organizations have reported that lawyers — as well as immigrants representing themselves — have missed filing deadlines for cases because of severe delays in the mail system, according to the complaint.

Obstacles to attorney-client communication also ensure that many immigrants in detention facilities never even retain a lawyer in the first place, according to the complaint. Due to lack of secure and reliably available phone calls, faxes or videoconferencing, attorneys must travel multiple hours each way to deal with issues that could be handled remotely, significantly increasing their burdens, limiting the case load they can take on, and causing detainees to be kept in facilities longer than necessary. For RAICES, which represents clients detained at Laredo, access to the facility is so difficult and burdensome that the organization has stopped taking on new clients, maintaining only a legal hotline, according to the complaint.

Immigrants in ICE detention facilities are seven times more likely to be released and over 10 times more likely to have a favorable outcome in their immigration case if they are represented by counsel, according to the ACLU.

The ACLU on Wednesday voluntarily dismissed its FOIA suit filed in September against Homeland Security over what it said was a complete lack of response to a FOIA request for records about the agency's compliance with obligations to facilitate detainees' access to legal services. The agency told Congress in a February report that it does not track compliance.

The ACLU dropped that suit because the information it sought to bring to light through its FOIA request will be included in discovery for the new case.

The legal services organizations are represented by Eunice Cho, Kyle Virgien, Aditi Shah, Arthur Spitzer, Jared G. Keenan, Vanessa Pineda, Katherine H. Blankenship, Daniel B. Tilley, Janine M. Lopez, Amien Kacou, Adriana Piñon, Bernardo Rafael Cruz and Kathryn Huddleston of the ACLU; Katherine Melloy Goettel, Emma Winger and Suchita Mathur of the American Immigration Council; Stacey J. Rappaport, Linda Dakin-Grimm, Andrew Lichtenberg, Joseph Kammerman, and Danielle Lee of Milbank LLP; and James A. Morsch, Katherine S. Barrett Wiik, Steven Appelbaum, Christie R. McGuinness and Margaret Nolan of Saul Ewing Ahrnstein & Lehr LLP.

Counsel information for the government was not available.

The case is Americans for Immigrant Justice et al. v. U.S. Department of Homeland Security et al., case number 1:22-cv-03118, in the U.S. District Court for the District of Columbia.

--Editing by John C. Davenport.