Access to Counsel by the Numbers

RAICES.” RAICES would collect that list from GEO at regular intervals throughout the day to call in and screen women for emergency legal needs. On April 11, 2019, RAICES was informed that the list would no longer be provided throughout the day or posted in the visitation waiting area and instead would be faxed once a day. This rule change - with no prior notice - made it difficult for RAICES to inform clients where they could sign up to meet with the team but also to accommodate emergency requests to prepare clients for last-minute deportations, Credible/Reasonable Fear interviews, or court hearings. Again, considering that the vast majority of people in Karnes were in expedited removal, a delay of just a few hours could result in deportation. Interviews and court hearings often come with less than a day’s notice, if any, so allowing detained people multiple avenues to request RAICES’ services is crucial.

Over the course of adult women’s detention at Karnes, ICE and GEO also imposed a number of rule changes that made working conditions markedly more difficult for the RAICES team who spent upwards of ten hours a day at the prison. In April, 2019, ICE informed RAICES that they could no longer use the “pro bono room,” a small office in which RAICES stored paperwork, a printer and scanner, tissues for clients, writing utensils, and other materials pivotal to provide legal services for those in expedited removal. In the weeks following, RAICES staff saw the room utilized to give GEO employees massages as well as to host visiting insurance advertisers there to meet with prospective GEO clients. Additionally, the refrigerator and microwave in the break room outside of legal visitation were removed, eliminating the ability of the RAICES team to store food in order to maximize time with detained persons at the prison. To add insult to injury, in May 2019 RAICES was barred from even eating in the break room, though the space was not used for any alternative purpose. RAICES staff had to eat on a bench without a table outside the facility or in the prison lobby.

Additionally, attorneys and volunteers were required to bring their materials in transparent bags, a rule imposed in addition to passing through a metal detector and searches of personal items. Without explanation or notice, for a time ICE forced RAICES staff to carry all items in their hands. In September 2019, ICE removed RAICES access to lockers in the lobby for storage of cell phones, and the team had to instead leave their phones in parked cars in the Texas heat. At one point, an ICE officer prohibited a RAICES attorney from using a cell phone for a representation-related call in the lobby and the staff person had to take the call in a parked car in the sweltering summer.

Ultimately, the impact of these changes is most important to the people detained. It should also be noted that many of the so-called accommodations or amenities cited are exceedingly rare at immigration prisons. These changes are significant, not only because ICE and GEO targeted attorneys and created an environment in which it is more difficult for detained people to access regular legal services, but also to illustrate the swiftness with which ICE authority can undo years of past collaboration with advocates to erase conditions that favored robust attorney presence.

ACCESS TO COUNSEL BY THE NUMBERS

The rule changes had a significant negative impact on detained women’s access to counsel during this period, especially RAICES’ clients. There were an average of 196 women with whom RAICES scheduled a legal visit each day, but some days there were as many as 565. RAICES was, on average, able to meet with only 64 women per day. This is a distinct departure from

the daily average prior to the population shift, in which RAICES regularly met with over 100 families a day, and often exceeded that number, meeting with 200 families or more. From the time a meeting was originally requested, women waited an average of 8 days to be seen by RAICES, in contrast with a typical wait of 0-2 days prior to the rule changes.

During the six month period in which women were detained at Karnes, a total of 206 women requesting legal counsel were never able to meet with RAICES. This compares to only 67 families who requested legal counsel from RAICES with whom RAICES was unable to meet in the six months prior to the population change. The fact that ICE detained more people at Karnes at the time produced inadequate counsel in itself--for example, the visitation room capacity did not increase in tandem with the population increase. As previously mentioned, access to counsel can significantly increase the chances of halting a deportation. Any delay or restriction in accessing attorneys, especially for people in expedited removal proceedings, can have life-altering consequences.

families on average met with RAICES each day

maximum families on average that met with RAICES each day

typical wait to be seen by RAICES

women on average requesting a legal visit with RAICES each day

maximum women on average that met with RAICES each day

the most legal visit requests RACIES received for a single day

women on average that RAICES was able to meet with each day

The impact of the conditions women experienced prior to and during their detention at Karnes, coupled with changes in access to counsel that limited RAICES’ ability to operate its legal services operations at full capacity, resulted in a higher rate of deportations. In addition, the change from a family population where—on the whole—detention of more than a few weeks was relatively rare, to an adult women population experiencing prolonged detention, exposed how ill-equipped services at Karnes are to provide appropriate medical and mental health care. This section provides an overview of the legal and health-related outcomes for the women detained in 2019.

Asylum protections were not intended to be wildly unattainable. Yet, as the cases of the women detained in 2019 illustrate, success in accessing asylum protection is rare and deportations of refugees are rampant. Furthermore, even with access to counsel, asylum seekers who receive a negative decision from the Asylum Office in their Credible or Reasonable fear interview face nearly insurmountable hurdles to appeal that decision, and the facade of legal safeguards in place often serve to rubber-stamp the initial decision. These challenges also result in many individuals choosing to accept a deportation order after issuance of a negative interview decision rather than suffer more detention during a futile appeal. Furthermore, many of the Trump Administration’s draconian anti-asylum rules placed additional barriers to women overcoming expedited removal and having the opportunity to seek asylum before an immigration judge. Though many of Trump’s policies were challenged in court, they had devastating effects on many people before they were overturned or altered. RAICES data and client experiences from 2019 demonstrate not only that the intended carve outs to expedited removal do not effectively protect asylum seekers, but also that without meaningful and secure change to the legal scheme for recently arrived migrants, policy whims of varying administrations will continue to have abysmal results.

The total number of adult women at Karnes who received any type of service from RAICES was 2,891. This number includes not only individuals who received representation from a RAICES attorney in court, but also women who completed an intake screening, attended a “know your rights” presentation, or were prepared by the RAICES team for their interview. It is important to note that the level of services each woman received was inconsistent due to the access to counsel issues outlined in Part III. Of the 2,891 women served, at least 472 received negative decisions in their credible or reasonable fear interviews. This number is likely much higher due to issues of access to counsel, women agreeing to be deported without having the opportunity to consult with RAICES, and women retaining the services of private attorneys after initially meeting with RAICES prior to their interview.

Yet, the scale of the increase in negative interview results was remarkable; from January to March of 2019, RAICES provided services to a total of 42 families who received negative interview results, but with the new population, that number increased to working with an average of 44 negative cases each day.

Only 157 of those 472 women served with negative decisions had an opportunity to prepare with RAICES before their credible or reasonable fear interview. As mentioned in Part III, women waited an average of 8 days for their initial intake meeting with RAICES as opposed to 0-2 days prior to the rule changes. By that time, many had already completed their interview. While there is limited data surrounding the effectiveness of representation in the credible fear interview, access to counsel prior to an interview is critical, as many persons who receive negative decisions express that they had little to no understanding of the purpose or gravity of the interview. Data regarding representation for asylum seekers in court proceedings demonstrates the usefulness of counsel. In 2020, the odds of success in an asylum claim without representation was 17.7% compared to 31.1% with a lawyer.51 Women detained at Karnes in 2019 had slightly better than a 50% chance of success on appeal of a negative decision if they had access to a RAICES lawyer, and if the judge affirmed their negative decision, a positive outcome on further appeal was all but impossible. Of the 472 women who reported negative interview decisions to RAICES, only 310 received preparation for their hearings in which a judge reviewed and could overturn the negative decision. Of those 472 women, immigration judges affirmed 217 negative decisions. The negative outcomes at this stage fell along lines of race and nationality, with Haitian women being the highest percentage of those who received negative decisions, followed by women from the so-called “Northern Triangle” countries of El Salvador, Guatemala, and Honduras. Cuban women were the least likely to receive a negative credible fear decision.

Of the 217 women whose negative decisions were upheld by the immigration court, RAICES filed at least 138 Requests for Reconsideration with the Asylum Office outlining reasons why their initial decision was faulty and should be overturned. All but ten of those requests were denied. The ten women whose negative

PERCENT A GE OF POPUL A TION TO RECEIVE A NEGA TIVE DECISION

CUB A, 9%

HONDUR AS , 29%

GU A TEMAL A, 31 %

EL SAL VA DOR, 35 %

HAITI, 44 %

51. N/A, Asylum Denial Rates Continue to Climb, TRAC Immigration, Oct. 28, 2020, https://trac.syr.edu/immigration/reports/630/