Access to Counsel and the Political Geography of Immigration Detention - Rendition Into the Archipelago

"Among the more striking comments at the event convened last week in New Orleans by Human Rights First, Dialogues on Detention: Lessons from Criminal Justice Reform for Immigration Detention, were those by Louisiana State University Law School Professor Ken Mayeaux, who directs the school’s immigration clinic.  In the day's final panel, on access to counsel, Mayeaux painted a grim picture concerning the ability of noncitizens detained within Louisiana – whose immigration detention beds comprise 6 percent of the total number of ICE detention beds in the country, but 90 percent of whose detainees have been transferred from out of state – to obtain legal representation, either for bond hearings or to defend against removal itself.  He offered up the Oakdale Federal Detention Center for particular scorn.  Back in the 1980s, he said, "someone had the brilliant idea to build a 900-bed detention facility in the middle of nowhere."  Today, in practice, Mayeaux asserted, “there is no access to counsel at Oakdale.”

Even when individuals are not detained, the complexities of immigration law make the role of counsel for noncitizens in removal proceedings – who, unlike criminal defendants, have no right to government-appointed assistance of counsel – exceptionally important.  For example, a 2011 study of cases initiated in New York – which was jointly conducted by the Vera Institute of Justice and the Immigrant Representation Study Group convened by Judge Robert Katzmann of the U.S. Court of Appeals for the Second Circuit – found that while 74 percent of non-detained individuals represented by counsel secured successful outcomes in their cases (defined as either relief from removal or termination of proceedings), that figure dropped to 13 percent for non-detained individuals who lacked legal representation.  But as with the criminal justice system, in which individuals held in pretrial detention fare worse in their cases than individuals who are not detained, noncitizens in immigration detention fare considerably worse in their cases: only 18 percent of legally represented individuals in detention secured successful outcomes, while a scant 3 percent of unrepresented detainees were able to do so.

Moreover, the likelihood of obtaining legal representation in the first place is considerably lower for detained noncitizens – and lower still when ICE transfers those individuals long distances to remote detention facilities that are far from major urban centers, as the 2011 New York study found to occur with approximately 64 percent of individuals originally taken into custody in New York.  According to Human Rights First, approximately 40 percent of ICE’s total detention bed space (which currently totals approximately 33,000 beds) is at least 60 miles away from an urban center – and in many cases even more remote.  The consequences of rendition into this archipelago of facilities can be dramatic." - Anil Kalhan, Dec. 5, 2012.