A federal judge on Thursday extended her order requiring that federal authorities give immigrants detained in Minnesota access to attorneys immediately after they are arrested and before they are transferred out of state.
U.S. District Judge Nancy Brasel issued a preliminary injunction requiring that U.S. Immigration and Customs Enforcement must ensure that people detained at a holding facility in Minneapolis are entitled to reach lawyers quickly and to communicate with them privately while their cases proceed.
“Due process is not a game of keep-away,” the judge wrote. “ICE recognizes detainees’ right to access counsel in theory and written policy, but not in practice. Instead, it has placed obstacle after obstacle in front of detainees and their attorneys, blocking communication between clients and counsel.”
Brasel's decision followed a temporary restraining order she issued Feb. 12, when she said it appeared the federal agency had failed to plan for how to protect the constitutional rights of people detained during the Trump administration's immigration crackdown known as Operation Metro Surge.
“The Constitution does not permit the government to arrest thousands of individuals and then disregard their constitutional rights because it would be too challenging to honor those rights,” Brasel wrote in February.
The judge on Thursday extended her original order mandating that the government ensure that every noncitizen held at the Bishop Henry Whipple Federal Building be given the opportunity to contact an attorney within one hour of their detention.
She maintained her requirement that detained people must not be transferred out of state for the first 72 hours of their detention to ensure that they have time to reach attorneys, and that their lawyers have time to try to halt any transfers.
The Advocates for Human Rights filed the lawsuit in January, saying immigrants in detention have a fundamental right to access to counsel. It welcomed the decision, which will remain in place pending further proceedings.
“The ability to speak freely and privately to an attorney is crucial to due process and essential to protecting people from unjust rulings, coercive detention, and life-threatening deportation,” Michele Garnett McKenzie, executive director of the public interest law firm, said in a statement.
Officials with the Department of Homeland Security and ICE did not immediately respond to emails requesting comment on the ruling.
During a hearing last week, Jeffrey Dubner, an attorney for the plaintiffs, told the judge that the government's compliance with her temporary restraining order had been “fitful at best.”
The judge issued her initial order on the same day that border czar Tom Homan officially declared Operation Metro Surge over. Government officials say new detentions have subsided since then, as the number of ICE officers in Minnesota has receded from a high of around 3,000 to close to their previous levels of over 100. They say there are times now when there are no people detained at Whipple.
Government attorney Christina Parascandola told the judge that ICE had been complying with her order and that extending it with a preliminary injunction was unnecessary. She said conditions at Whipple have “returned to a more manageable pace” with the wind-down of the surge.
But local immigration attorneys testified that it was often impossible to reach their clients in Whipple, even when they went there in person, or to get information on whether their clients were there or had been transferred to larger facilities in Texas.
One attorney, Hanne Sandison, testified that when she and a few others were allowed inside under the judge's order to see conditions there, she was unable to get the phones to work. In the one place where the phones did work, she said, ICE officers would have been able to hear every word.
