Immigration Agency Refuses to Respect Right to Legal Counsel During Interviews, ACLU Charges

March 19, 2003 12:00 am

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NEW YORK – Despite documented problems, top immigration officials are refusing to direct local offices to stop interfering with legal representation of immigrants who must submit to interrogations under a controversial immigrant-tracking program, the American Civil Liberties Union charged today.

The so-called Special Registration program requires tens of thousands of men over the age of 16 who are citizens or nationals of mostly Muslim countries to register with their local INS office or face possible arrest and deportation.

“The failure to provide clear and explicit directions to local immigration offices is inexcusable given the absolute right to legal counsel,” said Lucas Guttentag, Director of the ACLU’s Immigrants’ Rights Project, noting that this Friday is the deadline for Pakistanis and Saudis to register and deadlines for others are also approaching.

“This failure can only be explained as willful foot-dragging designed to delay a response to blatant legal violations until the registration deadline has passed,” he added. “If the government cared about respecting legal rights, it would issue an immediate instruction to all its offices.”

In a March 18 letter sent to Brian Meyers, Acting Deputy General Counsel at the Bureau of Immigration and Customs Enforcement (formerly known as the Immigration and Naturalization Service, or INS) the ACLU noted that the immigration agency has not disputed the right to legal representation. Yet just last week, immigration officials in Georgia and Washington, D.C. issued confusing and misleading statements about the right to counsel, telling the Atlanta Journal-Constitution that lawyers could be excluded from portions of the registration process.

The policy clarification is necessary because of the apparent confusion and the continuing practices of local immigration offices, the ACLU said, citing recent reports that regional offices in Florida, New York, Texas and Illinois have also blocked attorneys from accompanying their clients to registration.

In response to the ACLU letter, an immigration official yesterday said that the complaints should be raised “at the local level” and declined to issue a public directive to insure that the right to counsel is respected at all immigration service offices.

“We have made every effort to raise these problems with local offices, yet the problems continue,” said Robin Goldfaden, an attorney with the ACLU’s Immigrants’ Rights Project. “The ACLU cannot possibly monitor every interview at every office. The government has the responsibility to ensure that its own offices comply with the law.”

The ACLU’s March 18 letter follows:

March 18, 2003

Brian Meyers
Acting Deputy General Counsel
Bureau of Immigration and Customs Enforcement
425 I Street, NW
Washington, DC 20536

By facsimile (202.514.0455)

Re: Attorney Representation at Special Call-In Registration

Dear Mr. Meyers:

I am writing to follow up on our telephone conversation of Friday, March 14, 2003, and my conversation of yesterday with Rachel Silber of your office regarding attorney representation at Special Call-In Registration. As we discussed on Friday and yesterday (and as I previously indicated to Bo Cooper), I am requesting that you immediately send a national directive or memorandum to all INS/BCIS offices to ensure and clarify the right of registrants to legal representation. As I indicated when we spoke, this is a matter of great urgency because of this Friday’s impending deadline for the third Call-In Registration group.

The ACLU has previously written regarding specific practices in various INS/BCIS offices that have interfered with or denied legal representation to Special Call-In Registrants. Those letters were addressed to the District Director where the problem arose with copies sent to Bo Cooper in his former capacity as General Counsel. On February 24, 2003, after my initial conversation with Mr. Cooper, I forwarded a complete set of the letters to his attention.

In some cases, the local District Director promptly responded to the ACLU’s letter with appropriate assurances regarding the right to legal representation. However, the ACLU has not received any response to its February 7 and 14 letters regarding problems in Tampa, Florida and Atlanta, Georgia, respectively. Instead, in a March 12, 2003 article in the Atlanta Journal-Constitution, INS spokesperson Sue Brown is quoted as saying that “attorneys may accompany their clients, but may not participate in the registration process.” The article also reported that a Washington spokesperson for the BCIS, Bill Strassberger, stated that “attorneys are welcome during registration, but they typically cannot go with foreign nationals if investigators suspect them of violating immigration law.” Neither the Department of Justice nor the BCIS has explicitly disavowed either of these statements. Moreover, in relation to the Tampa office, I confirmed yesterday that counsel was excluded from “investigations” interviews on repeated occasions, including as recently as last Thursday.

The right of registrants to be represented by counsel has been affirmed by the Department of Justice’s explanation of the Registration process and is protected by federal regulation, statute, and the Constitution. Since November, when the Special Call-In Registration began, the Department of Justice has advised registrants that “you may be represented at your own expense by the legal counsel of your choice.” Special Call-In Registration Procedures for Certain Nonimmigrant Aliens (for all call-in groups): Questions and Answers, at 5 (Nov. 26, 2002) (available at http://www.immigration.gov/graphics/shared/lawenfor/specialreg/
CALL_IN_ALL.pdf
). That assurance reflects the requirements of 8 C.F.R. § 292.5, which recognizes the right to legal representation. Moreover, 5 U.S.C. §555(b) provides that a “person compelled to appear in person before an agency or representative thereof is entitled to be accompanied, represented, and advised by counsel or, if permitted by the agency, by other qualified representative.” See, e.g., Professional Reactor Operator Society v. U.S. Nuclear Regulatory Comm’n, 939 F.2d 1047 (D.C. Cir. 1991). This right to counsel is “absolute,” SEC v. Whitman, 613 F. Supp. 48, 49 (D.D.C. 1985), and applies equally to any initial registration process or follow-up “investigations” questioning. It encompasses counsel’s active representation, not merely passive observation. Id. at 50 (“established right to his counsel’s representation and advice (not mere presence)” (emphasis original).

We believe these requirements are unequivocal and do not permit the restrictions on legal representation that we have identified in our prior letters. In light of the persistent pattern of problems, the absence of a clear directive from Headquarters and the impending registration deadline for Pakistanis and Saudis on March 21, I am reiterating my previous requests that formal instructions issue within 24 hours to all INS/BCIS offices that (1) reaffirm the right of any person appearing for Special Call-In Registration to active legal representation by an attorney or qualified representative throughout the Registration process, and (2) direct that such right to legal representation is applicable both at the initial Registration and at any subsequent investigative interview or questioning. I further request that you widely publicize the directive and disseminate it to interested organizations and groups.

It is difficult to understand the Justice Department’s failure to issue such a directive to date. Your office has not disputed the right to legal representation, and the Justice Department has repeatedly urged compliance with the registration obligation. In light of that, it is incumbent on the government to dispel any confusion about the right to legal representation and to ensure that all INS/BCIS offices are fully complying with the registrants’ right to counsel.

If you have any questions regarding the concerns raised in this letter or have a different view of registrants’ right to counsel, please call me immediately at 510.625.2010 or 212.549.2617. Thank you very much for your prompt attention.

Sincerely,

Lucas Guttentag

cc: Rachel Silber, Office of General Counsel (via fax)
Owen (Bo) Cooper, Office of General Counsel (via fax)

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