On December 19, 2013, four immigration detainees of U.S. Immigration and Customs Enforcement (ICE) filed this class-action lawsuit in the U.S. District Court for the Northern District of California under 28 U.S.C. § 2201 against ICE and the Department of Homeland Security. The plaintiffs, represented by private and ACLU attorneys, asked the court for declaratory and injunctive relief, claiming that defendants violated plaintiffs' rights under the First and Fifth Amendments and the Immigration and Nationality Act. Specifically, the plaintiff claimed that defendants restricted the plaintiffs' access to telephones contrary to ICE's National Detention Standards, thereby denying or severely limiting the plaintiffs' statutory and constitutional rights to retain counsel, to communicate with retained counsel, to gather and present evidence, to obtain a fair hearing, to apply for immigration benefits, and to petition for documents that may help them avoid deportation.
Plaintiffs were in ICE custody pending deportation proceedings. Most detainees are geographically isolated from family, courts, and attorneys. As a result, telephone access is critical. Many detainees would be able to use one or more of the several forms of "relief from removal," but because of ICE policies restricting telephone access many plaintiffs are unnecessarily detained for months. Many are forced to seek multiple continuances while they attempt to gather information and documents to contest their deportation. Others would accept deportation much earlier if they were able to obtain legal consultation over the telephone.
The following are examples of the practices restricting telephone access, some of which violated ICE's own detention standards: Detainees are confined for up to 22 hours a day and are permitted to make calls only during inconsistently scheduled "free time," which is often and early in the morning or at night. Detainees have no privacy when using telephones. Phone calls from the facilities are prohibitively expensive, especially for indigent detainees. Detainees are completely unable to receive incoming calls. Telephone systems in the facilities disconnect after 15 minutes, or if a recorded greeting begins to play (including voicemail or automated systems requiring the selection of options to reach a live person). Although ICE policy requires that detainees have access to a free-call platform for contacting nonprofit legal services, that platform is often unavailable and usually ineffectual.
On April 16, 2014, the district court (Judge Edward M. Chen) granted plaintiffs' motion for class certification. Then, on April 28, 2014, the court referred the case to Magistrate Judge Donna M. Ryu for settlement negotiations.
Settlement discussions went on for over two years, during which time the plaintiffs filed a supplemental complaint on August 27, 2015. On July 1, 2016, the court granted preliminary approval of the parties' settlement agreement, with final approval pending a fairness hearing currently scheduled for November 2016.
With this class action settlement, the restrictions on detainees' use of telephones were lifted such that they could make outgoing calls and ultimately obtain legal assistance. The terms of the preliminary settlement agreement included the following: (1) adding free and private numbers to housing unit telephones, eliminating automatic telephone cutoffs of 20 minutes while extending cutoff times to 40 or 60 minutes, (2) adding 40 phone booths and additional phone rooms in housing units to facilitate privacy, (3) provisions ensuring timely access to phones and messages such as providing facilitators to process phone requests, and (4) provisions for implementation of and compliance with the agreement. The agreement also provided for attorneys' fees in the amount of $405,000.
On November 18, 2016, the court approved the settlement agreement and attorneys' fees. As of March 15, 2019, the court retains jurisdiction to enforce the settlement agreement, and the settlement remains in force.
Nadji Allan - 09/25/2014
Virginia Weeks - 08/01/2017
Edward Cullen - 03/15/2019
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