Immigrants’ Access to Counsel Topic of New Rulemaking Petition

WASHINGTON, DC – The American Immigration Lawyers Association (AILA) and the American Immigration Council (Council) have petitioned the Department of Homeland Security and the Department of State to issue new regulations that will ensure all immigrants have access to legal counsel in secondary and deferred inspection, as well as overseas consular interviews. If the agency fails to respond or denies the petition, AILA and the Council may pursue litigation in federal court.
Benjamin Johnson, AILA Executive Director, explained:

“Due process is never optional but this is especially true in today’s tumultuous atmosphere. Everyone needs access to legal counsel in immigration proceedings, from start to finish – when applying for visas at a U.S. Embassy or Consulate, when seeking recognition or relinquishment of U.S. citizenship or nationality status, and when seeking admission to the United States. Earlier this year, many immigrants were detained for hours by U.S. Customs and Border Protection (CBP) officers at airports around the country and denied access to counsel even as officers were asking them detailed, complicated questions about their immigration status. Immigration law is incredibly complex and denying someone access to counsel is contrary to basic American principles of due process.”

Beth Werlin, Executive Director of the Council, noted:

“Access to counsel in government proceedings is fundamental to ensuring that our laws are properly executed and that due process is afforded those navigating the immigration system. Barring lawyers from participating—particularly when a complicated legal issue arises—can result in both citizens and noncitizens being subjected to prolonged and unnecessary detention and questioning at a port of entry. Moreover, the lack of meaningful access to counsel can result in an unjust refusal of a visa, denial of admission, or removal from the U.S.  The presence of counsel allows proceedings to move more efficiently and effectively, a benefit for the government in a time of backlogs and delays in the immigration arena.”

Background:

• With few exceptions, lawyers are generally not permitted to accompany their clients to visa interviews and other proceedings at U.S. Embassies and Consulates, or during the secondary or deferred inspection processes.
• Even close relatives of U.S. citizens and lawful permanent residents, as well as employees of U.S. corporations and non-profit entities, are often denied access to their attorneys at critical stages of the immigration process.
• Further, individuals seeking to pursue complex claims to U.S. citizenship or nationality, or to relinquish their U.S. citizenship, are often denied access to counsel.
• The presence of counsel could improve the quality and efficiency of immigration decision‐making by ensuring that immigration officers have relevant evidence and legal analysis and by encouraging clients to be as forthcoming as possible.
• Attorneys could also protect the rights of their clients, who often lack the specialized knowledge required to properly present their own claims, whether the issue is eligibility for a visa or admission, or a claim to U.S. citizenship.
• For example, a U.S. business may invest many thousands of dollars in a process that ends in the unnecessary denial of a visa at the consulate. A U.S. citizen can be separated from family for years due to an easily correctable issue. While many consular adjudications and admissions decisions are based on sound reasoning, there are also countless examples of improper and unjust refusals of admission and visa denials that are ultimately overturned.  Access to counsel can make a critical difference. 
• On February 9, 2017, Senators Harris (D-CA), Blumenthal (D-CT), Booker (D-NJ), Carper (D-DE), Gillibrand (D-NY), Markey (D-MA), and Warren (D-MA) introduced a bill to guarantee access to counsel to those who are held or detained at a port of entry or at a detention facility overseen by CBP or ICE. A companion bill was introduced in the House by Representative Jayapal (D-WA).