A federal judge has ordered the Department of Homeland Security to give immigrants detained in Minnesota access to attorneys immediately after they are taken into custody and before they are transferred out of state.
U.S. District Judge Nancy Brasel issued the emergency restraining order Thursday, finding detainees at the Bishop Henry Whipple Federal Building faced so many logistical barriers to contacting legal counsel that it was likely the Department of Homeland Security had stepped on their constitutional rights.
The order is temporary, and will last for two weeks unless the judge extends it.
“It appears that in planning for Operation Metro Surge, the government failed to plan for the constitutional rights of its civil detainees,” Brasel wrote in the 41-page ruling. She rejected arguments by DHS attorneys that suggested changes to improve access would lead to “chaos.”
“The Constitution does not permit the government to arrest thousands of individual and then disregard their constitutional rights because it would be too challenging to honor those rights,” she wrote.
Department of Homeland Security officials did not immediately respond to a request for comment.
The Advocates for Human Rights and a detainee sued late last month, contending people held at Whipple on the outskirts of Minneapolis are denied adequate access to lawyers, even as they face the prospect of deportation. Attorney Jeffrey Dubner told Brasel that detainees are allowed to make phone calls, but ICE personnel are typically nearby.
Justice Department attorney Christina Parascandola told the court last week that people detained at the facility have access to counsel and unmonitored phone calls at any time and for as long as they need. She conceded that she had never entered the Whipple facility.
But the judge found the evidence at this point in the lawsuit showed detainees face often insurmountable barriers to accessing attorneys. She cited evidence presented by The Advocates for Human Rights that showed detainees are moved to new locations quickly, frequently and without notice, leaving attorneys with no way to know where their clients are or how long they will be there.
The transfers happen so quickly that sometimes DHS struggles to locate its detainees, the judge wrote, and the online system used to find detainees isn’t always updated accurately or in a timely manner.
She also noted that detainees appear to be offered one phone call — which is done in earshot of ICE personnel, and is frequently used to contact families — and the list of free and low-cost legal service providers given to detainees isn’t always accurate.
Federal agents have also rebuffed attorneys trying to reach their clients in person, she found, and detainees are often pressured to sign voluntary deportation agreements without being allowed to talk to counsel.
“All of these barriers make it difficult — if not impossible — for attorneys to effectively represent their clients,” the judge wrote.
The order directs the government to ensure that every noncitizen taken into custody and held at Whipple be given the opportunity to contact an attorney within one hour of their detention and before they are transferred out of state.
She also detailed how that access should be given — detainees must be given an accurate list of legal service providers, get free and private access to a telephone, and not be limited in the number of calls they can make to their lawyer.
The judge also said that attorneys must be allowed to visit clients at the facility in a private room seven days a week, and that detainees cannot be transferred out of state for the first 72 hours of their detention.
DHS must inform detainees where they will be transferred, and give them access to the telephone until they can reach an attorney or their family, the judge wrote.
“The court has made clear that the Trump-Vance administration’s overreaching and inhumane approach to immigration enforcement is unlawful and violates basic constitutional rights,” Democracy Forward President Skye Perryman said. The organization is part of the plaintiffs’ legal team. “Access to a lawyer is not optional; it is a fundamental right in America, and we will continue to fight to protect it.”
___ Boone reported from Boise, Idaho.
