In mid-July, a group of attorneys and legal workers visited Chittenden Regional Correctional Facility in South Burlington to meet with women in Immigration and Customs Enforcement detention for a legal orientation.
The visit brought into focus a reality the lawyers have become familiar with: without legal representation, immigrants face steep odds, and ICE’s frequent transfer of people between states makes access to legal counsel increasingly challenging.
The group found nine women in ICE detention, twice the number they expected. Most of the women weren’t represented by an attorney or weren’t sure if they had a lawyer.
Some women had been arrested in Vermont, while others had been transferred from facilities in other states, said Jill Martin Diaz, executive director of the Vermont Asylum Assistance Project, who organized the visit.
“Close to half the women didn’t know where they were,” said Emma Matters-Wood, a law fellow with VAAP.
Matters-Wood spoke with five women during the visit, she said, and three of them said they had been moved every few days. One said she had been detained for a week and transferred four times, with two of the trips lasting about 16 hours. The woman couldn’t name the states where she had been detained before, but said this was the first time she could speak with a lawyer, according to Matters-Wood.
The encounter highlighted the troubling lack of legal representation many people in immigration detention face at a time when they need it most.
Only a small number of attorneys in Vermont practice immigration law, and even fewer take cases of removal proceedings, but the sharp rise in immigration cases in recent months has stretched their capacity to the limit. Left unrepresented, people who are detained are more likely to lose their cases and be deported and less likely to be released while their cases play out, experts say.
The group’s goal at Chittenden was to help the women understand their basic legal rights. Martin Diaz said some of the women didn’t have immigration paperwork with them during the visit, and some had never seen their paperwork or received a translation of the documents, so they didn’t know why they were detained. One of the women had already been granted release on bond a few days earlier and the bond was paid, but she hadn’t been released yet, according to the group.
The day after the visit, the lawyers learned that five of the women they spoke with had been moved from Chittenden — two of them were later rebooked in the facility. The lawyers don’t know where they were transferred or why some were rebooked.
“The biggest takeaway for me,” Matters-Wood said, “was just, this is a very, very effective system for disappearing people before they have any opportunity for any kind of defense or any real substantive due process.”
Rapid transfers raise concerns about legal access
When federal immigration officials shuffle people from one detention center to the next, Matters-Wood said, those who are detained often lose access to their immigration paperwork, which has their identification number, information about their case, potential charges, and if they received a notice to appear in court.
“It’s actually pretty significant and important for people to know that information,” she said.
“This sort of shuffling people between facility to facility really is a very effective way to deny people their due process rights because it’s impossible to adequately state any form of defense or have any contact with the outside world when you’re being moved so frequently,” Matters-Wood said.
People are also deprived of their right to request a bond hearing in this situation, she added, because if they are moved frequently and don’t know where they are, they don’t have enough information to complete and submit a bond request.
Andy Pelcher, a pro bono attorney working with VAAP, said the federal government has “no rational basis” for moving detained immigrants from facility to facility “other than to hinder access to counsel and frustrate their ability to successfully defend themselves.”
He said he thinks the administration is trying to ramp up deportation proceedings to unprecedented levels, producing a caseload that the legal system is not designed to handle. Pelcher is trying to open a private practice specialized in immigration matters in the near future.
Two of the women Matters-Wood met during the visit, who had been in Chittenden Regional Correctional Facility for longer periods, told her they had to wait more than three days to make a phone call, she said. So if people are transferred sooner, they may not be able to contact anyone in the meantime.
Kristen Connors, a private attorney focusing on immigration cases, said she has heard from clients and colleagues that people in immigration detention were held at Chittenden Regional Correctional Facility or Northwest State Correctional Facility for a few days without being able to speak with a lawyer. Nathan Virag, an attorney with the Association of Africans Living in Vermont, also said his clients reported being denied an initial phone call.
Haley Sommer, director of communications at the Department of Corrections, responded to VTDigger’s inquiries on the matter saying that any individual who enters a DOC facility can make a phone call immediately upon intake. Incarcerated individuals can make requests to add someone to their phone list, and generally requests are reviewed daily. But if someone has just arrived, it may take days for the request to be processed, she said.
“Time is really of the essence,” Martin Diaz said. “Every day that a person spends in detention without counsel is a day that ICE is scaring them in bad conditions, in literal prison conditions, with the purpose of motivating people to self-deport.”
Tricia McLaughlin, assistant secretary for public affairs at the Department of Homeland Security, denied the claim that the government is intentionally making it harder for detained immigrants to access legal counsel.
“Any allegations that ICE is transferring illegal aliens to make the legal process as grueling as possible are FALSE,” she said in an emailed response to VTDigger. McLaughlin claimed that all detainees have opportunities to communicate with lawyers and family members, then outlined a current Trump administration policy that encourages self-deportation as an alternative to detention.
An immigration system under strain
Unlike in criminal cases, immigrants facing deportation aren’t guaranteed a public defender, so many people end up going through these complex proceedings alone.
According to the Transactional Records Access Clearinghouse at Syracuse University, based on data collected through June, there are 852 pending immigration cases in Vermont. Of those, 365 people — or 42.8% of cases — officially have legal representation.
Chittenden County has the highest number of pending immigration cases in Vermont, but only 39% have legal representation.
Right now, a rough patchwork of legal groups across the state are anchoring the legal response to the climbing numbers of immigration detainments and deportation cases. The Vermont Asylum Assistance Project, in addition to Martin Diaz, staffs three attorneys and has about five to 10 pro-bono attorneys each month who provide limited or full representation. At the Center for Justice Reform Clinic at the Vermont Law & Graduate School, director Brett Stokes takes active removal cases while teaching law students, who work with him on some cases.
Nathan Virag with the Association of Africans Living in Vermont is taking removal cases for the first time due to the greater demand of representation in this field, while in the private sector, Connors seems to be the only attorney providing removal defense at the moment.
The lawyers agreed that when people have an attorney representing them, their chances of success increase dramatically. A 2016 nationwide study by the American Immigration Council showed that represented immigrants were twice as likely as unrepresented immigrants to achieve the legal result they sought, and the immigrants in detention who had a custody hearing were four times more likely to be released if represented.
Immigration lawyers have found that filing a habeas corpus petition with a federal district court is the best approach, Pelcher said, because it forces the government to provide legal justification for keeping an immigrant in custody.
Lawyers can also submit a request to prevent their client from being moved to another state and then make a request for bond. In recent cases of immigration detention in Vermont, such as the ones of Heidi Perez and Jose Ignacio “Nacho” De La Cruz and Esther Ngoy Tekele, the lawyers successfully prevented the transfer or their clients and obtained bond releasing them from jail to ensure they could be with their family while their cases move forward in court, which can be a lengthy process.
In addition, attorneys can file a motion to request an online hearing to avoid traveling to Boston, where the closest immigration court is. However, people without legal representation are automatically required to attend in person and may have more difficulties understanding how to file the motion to change hearing format and gathering the information to make that request.
In January, President Donald Trump also signed an executive order to expand expedited removal proceedings for undocumented immigrants who can’t prove they have lived in the U.S. for at least two years, including individuals who entered the country unlawfully or those who had their parole status revoked.
Often, people meet border patrol agents before they have a chance to file an asylum application since the process might take time given the shortage of asylum lawyers, Martin Diaz said. When these encounters happen, immigration officers can decide to place the person in expedited removal before they get in front of a judge. Immigrants placed in expedited removal cannot be released on bond.
“The resources are so constrained. It’s only when someone is detained and, like, at risk of immediate removal, then they finally make contact with a lawyer,” Martin Diaz said.
An overstretched legal community
With more cases of removal proceedings against immigrants, the few lawyers practicing immigration law in Vermont have seen their caseload grow exponentially.
“I think I probably had three or four clients who were in removal proceedings pre-January,” Connors said. “Now I have about, I would say, 15 clients who have active removal proceedings.”
While Vermont has allocated funds to civil legal aid in the past, it has never appropriated money for immigration legal aid, according to Martin Diaz.
The state’s reliance on the law school clinic to provide a high volume of legal support is unsustainable, Martin Diaz said. Law school clinics have limited intake parameters and their priority is teaching students, who need guidance and don’t necessarily have the capacity to take too many cases, they added.
One reason for the shortage of immigration lawyers in Vermont, Connors said, is that the nearest immigration court is in Boston and, before the COVID-19 pandemic, most hearings occurred in person.
“The immigration legal services sector in Vermont was not developed in tandem with how quickly our communities diversified,” Martin Diaz said. “We’re welcoming all of these new communities, and the challenge is that we did not invest in the legal support that they need to achieve long-term stability and safety at a proportional rate.”
Attorneys have increasingly volunteered to receive training and take on immigration cases, but the demand is still too large, Martin Diaz said.
Expanding the immigration legal sector in Vermont is going to take time. Meanwhile, legal visits to the facilities where immigrants are detained may be the only way unrepresented people in immigration detention have access to some form of legal counsel, or contact with the outside world in general.
Martin Diaz and the other volunteers said they spent about four hours in the law library of Chittenden Regional Correctional Facility speaking with the women in ICE detention, the first time they were able to hold a legal training in the facility.
“The initial feedback we got was just one of emotional, overwhelming gratitude,” Martin Diaz said. “Everyone wanted to talk all at once because this is the moment that they’ve been waiting for.”
Correction: A previous version of this story misspelled Emma Matters-Wood’s name.
