More than 200 detained families have been held at detention centres without access to lawyers and facing deportation, the Guardian has learned.
The Bureau of Immigration Appeals (BIA) has been moving rapidly to close immigration cases involving families who have been separated by a Trump administration practice of holding them in detention, but nearly 400 people who have been held in the Karnes, Dilley and Karnov facilities in Texas still face deportation, according to court documents.
There has been little funding for private legal services to represent the detained families, although the Trump administration has tried to provide subsidies for these services and doubled the number of lawyers who receive government funds.
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Among the detainees who have not had legal counsel are children as young as six months and adults in their 30s and 40s who face immediate deportation because they had family members who were already in the country legally.
“All of these families are facing imminent and lengthy removal proceedings. These families have not had adequate access to counsel and are being detained as a result,” said Fareed Khan, the deputy executive director of the American Civil Liberties Union (ACLU).
At a hearing last week, Luis Alfaro, an immigration lawyer from the Texas Civil Rights Project, said the families had “ill-advised” decisions they needed to make. There is no question in anyone’s mind that the right to an attorney is fundamental in any criminal case and yet the same is not true in immigration court, he said.
“This is the first case where we’ve ever seen a judge order that a case be dismissed because the government is not providing counsel.”
The ACLU is challenging this in federal court and demanded answers at Thursday’s hearing in San Antonio, which it plans to file later this week. The government challenged the order as an abuse of discretion, but Judge David Ezra declined to allow the case to be dismissed without an opportunity for additional public comment.
On the day after the hearing, an immigration judge in Texas ordered that detention of the 85 families who are awaiting judicial review be allowed to go forward with formal hearings and the government has not responded to the judge’s directive.
Last week, two US district judges issued legal orders ordering the government to provide free legal representation to detainees being held in the detention centres, which are on military bases. But in cases of people who have been detained since June, almost nothing has been done to provide legal aid.
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A government lawyer told Judge Dorothy Lease on Thursday that each detained family had been issued an order by the BIA.
No one has contested this, but what the ACLU argued was that families facing deportation should be entitled to whatever the judge deems is an adequate and thorough representation from a pro bono attorney.
The judge responded: “The people who have been in jail for two months, the order would be that they have been able to have counsel?”
Attorneys warned during the hearing that the situation is a stark example of the gaps in the legal system and how it allows the government to escape accountability.
Attorneys representing detainees said not enough lawyers were available to counsel detainees, and there was not enough guidance to make sure attorneys followed the basic rules of immigration law to adequately represent their clients.
“I have been to six hearings now and I cannot remember the last time a pro bono attorney was present. There is no control over it. I’ve had six-hour hearings because I’ve had five-to-ten cases and lawyers are shirking,” Khan said.
The Justice Department pointed to moves it has been making to provide additional access to counsel. Secretary of Homeland Security Kirstjen Nielsen announced on Thursday that she had issued guidance requiring immigration attorneys who volunteer to provide pro bono representation for immigrants, to state the services they are providing, and publicly list their services online.
However, Khan and other attorneys said that immigrants’ only options if their immigration cases have not been dismissed are to plead guilty or fight deportation.