May 1, 2003
When the Bush Administration orders male Muslim immigrants to report for what is called Special Registration, it often interferes with their Sixth Amendment right to counsel. The men have to appear at designated immigration offices for fingerprinting, photographs, and questioning, but their interrogators don't want their lawyers around.
Obstructing the right to counsel is "standard operating procedure" in Tampa, Florida, says Mayra Calo, an immigration attorney there. "They allow the attorney in for the first phase of Special Registration," which involves filling out forms and some basic questioning, says Calo. But if there is a problem with the person's immigration status, the authorities transfer him to a separate area for questioning. "I wouldn't mind if they were going to fingerprint them and book them," says Calo. "But that's not happening. They interrogated my client. I even had one client who was questioned by the FBI back there without me. If you're taking my client to a closet, I want to be in there. Otherwise, why hire an attorney?"
B. John Ovink, another Tampa lawyer, had a similar experience. He accompanied one of his clients to the federal immigration office, and after the authorities found a problem with the man's papers, the trouble began. "They said, 'OK, we'll send him in to investigations, but you can't be there,' " Ovink recalls. "I said, 'What?' They said, 'You can't be there.' "
Ovink says immigration authorities have deprived his clients of access to counsel three times. "Every time I insist on getting access, and every time I'm denied," he says.
John C. Miotki, yet another Tampa attorney, took a Moroccan client in to the local immigration office. When the officials decided there was a problem with his client's status, "I requested to accompany him," says Miotki. But they kept him out. "The pretext given at the time was that it was a secure area and that there was no room for an attorney." Miotki says immigration had never before prevented him from accompanying a client.
This is not a local Tampa story. This is happening all over the country.
In Los Angeles, says Faith Nouri, who heads the Special Registration committee of the L.A. County Bar, denial of the right to counsel occurs "whenever we take clients."
Julie Dinnerstein, an attorney based in New York City, says agents at the district immigration office there have denied her access to her clients "at least a dozen times" since the Special Registration process started. In one case, denial of access to counsel had potentially severe repercussions. "They denied him bond and had him sign a paper waiving aside his right for a bond redetermination hearing, which is a significant legal right," she says. Dinnerstein's client also signed a paper waiving his right to delay his deportation hearing. "Waiving your right to a hearing, that's a huge civil liberties issue," she says.
The Bush Administration's Special Call-in Registration Program requires males over the age of sixteen from twenty-five predominantly Muslim countries to make an appearance at designated immigration offices. The controversial program has led to deportation proceedings for approximately 5,400 of the more than 41,000 who have registered across the country. More than 1,700 have been detained.
Sabena Khan accompanied her husband, Jahangir Ahmed, a Pakistani national, to Special Registration in New York on February 14. They took lawyer Krishna Vempaty with them. But, says Khan, after her husband filled out papers, the immigration authorities transferred him to "the investigations unit" on the tenth floor. The lawyer "went with him to the door, but after that, he wasn't allowed in." Neither was Khan. "I was absolutely nervous and scared beyond belief because it's so arbitrary," she says. "It's totally in their hands at that point. I didn't know if I was going to see him again."
Khan's husband recalls what happened next.
"They said, 'Bring all your paperwork, and we're going upstairs,' " Ahmed says. " 'We're not going to let your attorney come, but you bring your papers yourself.' "
After a long wait, says Ahmed, the officials took him into a room filled with computers and desks, where immigration agents sat questioning people. Ahmed says the agent did fingerprints of all five of his fingers, then proceeded to interview him, asking when he had arrived in the United States, when he had gotten married, and where his wife was. Ahmed says the agent also made a point of asking his wife's nationality and race.
Ahmed had to remain in that room for six-and-a-half hours. Khan and Vempaty stayed in the waiting room. Eventually, Ahmed was let go because the couple had brought with them a letter that listed an interview date for his work authorization.
Vempaty confirms that he was denied access to his client and calls the government's action "really not fair."
Johanna Habib, a lawyer with the Arab American Family Support Center in New York, says that she and other lawyers from her organization tried repeatedly to accompany their clients who were being interrogated. "We sort of stopped trying because they just weren't letting people up there," she says.
The government's view on the question of legal representation is all over the place. An undated INS document dealing with questions and answers about the Special Registration process says, "Legal representation is not necessary, but at your option, you may be represented at your own expense by the legal counsel of your choice."
The New York Civil Liberties Union says that policy is not always put into practice. "Two attorneys . . . representing scores of persons seeking to register repeatedly were denied the right to accompany clients to interviews" in Manhattan, says a January 28 letter from the group to Edward J. McElroy, formerly district director of the INS and now district director of the Bureau of Citizenship and Immigration Services. (The INS was recently split into two separate organizations under the Department of Homeland Security. The other organization is the Bureau of Immigration and Customs Enforcement.)
In a February 27 response, McElroy wrote, "Any sworn statement or similar substantive interviewing conducted by the Investigations branch shall be undertaken in the presence of the attorney or representative in another designated space."
But Bill Strassberger, a spokesperson for the Bureau of Immigration and Customs Enforcement, says the right to counsel lasts only until the authorities find something wrong with a person's papers. After that, it may not exist at all. "If it's determined that they are out of status, under normal circumstances, they don't have the right to have an attorney with them," he says. "We make some accommodations, but more on a case-by-case basis."
What about reports that people are being asked to sign waivers of their rights without a lawyer present? "If someone does elect to sign a waiver on their own, that's their choice," says Strassberger. "No one is forcing them." He also says that a competent attorney should know enough to prepare a client for such events as waivers.
"There is a difference of opinion between us and organizations like the ACLU that say an immigrant should have the right to representation," he says. "We maintain that, during the booking, that's just not the case."
Even when people are interrogated? "Even if there is some questioning that does take place during the booking process," says Strassberger. "That's correct."
Lucas Guttentag, director of the ACLU's Immigrants' Rights Project, has a different understanding of the law. "Asking about waivers and that sort of thing plainly goes against anything that should be encountered during the booking process," he says. "The fact is that people do have a right to counsel. Anything that has to do with information-gathering or rights or waivers, a person is entitled to have a lawyer present."
On March 18, Guttentag wrote a letter to Brian Myers, acting deputy general counsel of the Bureau of Immigration and Customs Enforcement. "The right of registrants to be represented by counsel has been affirmed by the Department of Justice's explanation of the Registration process and is protected by federal regulation, statute, and the Constitution," Guttentag wrote. "It is incumbent on the government to dispel any confusion about the right to legal representation and to ensure that all INS/BCIS offices are fully complying with the registrants' right to counsel."
Myers responded on March 20. "It is most appropriate to address these problems working through the local ICE [Immigration and Customs Enforcement] offices in which problems may exist," he wrote.
Guttentag says the federal government is intentionally opting out. "It's shifting the burden in an inappropriate way to say, 'You find the violations,' instead of the government operating in a way that complies with the law. I don't think it's in the least bit unintentional." He says the government is "exploiting people's vulnerability and lack of understanding of the law."
The American Immigration Lawyers Association is documenting allegations from attorneys across the country who say the government is separating them from their clients during interrogations. The organization has posted the allegations on its website, www.aila.org. "It's happening in virtually all the offices, and there are more than thirty offices," says Crystal Williams, director of liaison and information for the group. "What it comes down to is you have the right to counsel as long as there are no problems. As soon as a problem arises--which is why you want counsel--you no longer have access to counsel."
Williams says her organization has heard from attorneys who say immigration agents have asked their clients "questions that might be considered inappropriate." These included such questions as, "What mosque do you go to?" "What are your political opinions?" and "What do you think of the war in Iraq?" But questions "about your political beliefs, your religious beliefs, they're not relevant to the line of inquiry on someone's immigration status," says Williams. "The last time I checked the Constitution, you are entitled to a political opinion."
The lawyers' group has repeatedly asked local immigration offices to stop obstructing contact between clients and their attorneys. She says that none have agreed to change their practices. "They say, 'Well, having lawyers there interferes with our questioning,' " says Williams. "That's the point of legal representation--to inform clients of their rights."