Keeping Counsel: Challenging Immigration Detention Transfers as a Violation of the Right to Retained Counsel

Abstract

In 2019 U.S. Immigration and Customs Enforcement (“ICE”) incarcerated nearly 500,000 individuals. More than half of the individuals detained by ICE were transferred between detention facilities, and roughly thirty percent of those transferred were moved between federal circuit court jurisdictions. Detention transfers are isolating, bewildering, and scary for the detained noncitizen and their family. They can devastate the noncitizen’s legal defense by destroying an existing attorney-client relationship or the noncitizen’s ability to obtain representation. Transfers also obstruct the noncitizen’s ability to gather evidence and may prejudicially change governing case law. This Note describes the legal framework for transfers and their legal and non-legal impacts. It contends that transfers violate noncitizens’ constitutional and statutory rights to retained counsel by obstructing the attorney-client relationship. Further, it argues that federal courts have jurisdiction to review right to counsel challenges to transfers under the Immigration and Nationality Act. Written with practitioners in mind, this Note canvasses the practical and legal difficulties of making such a challenge.