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 the ACLU and private counsel, asked the court for declaratory and injunctive relief, claiming that ICE violated the plaintiffs’ rights under the First and Fifth Amendments and the Immigration and Nationality Act. Specifically, the plaintiffs claimed that ICE restricted their access to telephones, contrary to the agency’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 might help them avoid deportation.
The plaintiffs were in ICE custody pending deportation proceedings. Most detainees were geographically isolated from family, courts, and attorneys. As a result, telephone access was critical. Many detainees would qualify for one or more of the several forms of “relief from removal,” but because of ICE policies restricting telephone access many plaintiffs were unnecessarily detained for months. Many were forced to seek multiple continuances while they attempted 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 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 the plaintiffs’ motion for class certification. 300 F.R.D. 628. 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 that time, the court approved an expansion of the plaintiff class on July 27, 2015. 308 F.R.D. 203. That expansion included detainees at newly-constructed detention facilities in California. The plaintiffs filed a supplemental complaint on August 27, 2015, which included allegations against telephone policies in the new facilities.
On March 18, 2016, the court ruled that the detainees had no Sixth Amendment right to counsel, and that the telephone policies did not violate the plaintiffs’ statutory rights to counsel. 171 F. Supp. 3d 961. However, the court allowed the due process and First Amendment claims to proceed.
On July 1, 2016, the court granted preliminary approval of the parties’ settlement agreement; on November 18, 2016, the court approved the settlement agreement and awarded attorneys’ fees in the amount of $405,000.
With this class-action settlement, restrictions on the 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:
- Adding free and private numbers to housing unit telephones, eliminating automatic telephone cutoffs of 20 minutes, and extending cutoff times to 40 or 60 minutes,
- Adding 40 phone booths and additional phone rooms in housing units to facilitate privacy,
- Provisions ensuring timely access to phones and messages such as providing facilitators to process phone requests, and
- Provisions for implementation of and compliance with the agreement.
On April 23, 2019, the parties filed a proposed order to extend certain terms of the settlement agreement. The court granted this order on the same day. The parties filed another proposed order to amend the settlement agreement on December 13, 2019, which the court again granted the same day. The proposed orders can be found in the Documents for this case on the Clearinghouse website.
The parties held a mediation conference with Magistrate Judge Ryu on March 24, 2020. Subsequently, they filed another proposed order on April 1, 2020, which was granted on the same day by the magistrate judge.
The case is ongoing.
Nadji Allan - 09/25/2014
Virginia Weeks - 08/01/2017
Edward Cullen - 03/15/2019
Bogyung Lim - 07/29/2020
compress summary
