Under the Shroud of Freedom: The First Amendment Rights of Visitors in the Immigration Detention System

BY: JESSICA BRAUTIGAM

Past the outskirts of the city, off an unmarked road, you reach the barbed wire fence line and guarded gate of the detention facility. Leaving your phone and personal belongings behind, you walk through the metal detector and into the lobby. After filling out forms at the guard desk, you are escorted down a long hallway punctuated by locked doors. A few minutes pass and a despondent but friendly face greets you through the partitioned glass of the visitation booth.

On August 25, 2015, Community Initiatives for Visiting Immigrants in Confinement (CIVIC), an immigrant visitation program, along with the Southern Poverty Law Center sent a letter to U.S. Immigration and Customs Enforcement calling for a national policy that protects the First Amendment rights of visitors against “retaliatory discipline, suspension, or termination of volunteers for public criticism of a government entity.”[1] The letter came in response to the termination of the Etowah Visitation Project,[2] the sixth CIVIC-affiliated visitation program to be shut down in the last two years after volunteers publicly criticized the immigration detention system.[3]

Considered “the largest mass incarceration movement in U.S. history,” the unprecedented funding structure implemented by Congress has created an effective mandate of 34,000 people in detention every day at a cost of over $2 billion annually.[4] Addressing civil violations, the immigration detention system lacks many of the safeguards of the criminal justice system. There is no right to an attorney, leaving 84% of people in immigration detention without representation.[5] Access to translation services and legal materials for pro se representation are inadequate.[6] The remoteness of detention facilities, costly and monitored phone calls, and frequent transfers further impede access to legal services and isolate people in detention from their families and the outside world.[7]

Volunteer visitation programs work to end isolation in detention facilities across the country by providing people in detention with a means of connection with the outside world.[8] For many people, this may be their only regular contact beyond the detention system. However, there is no right to visitation[9] and visitation groups face program termination for speaking out.[10]

Frustration and despair reverberate through the barren walls of the detention center. Chilled by the re-circulated air and the current reality of a friend sitting only a few feet away on the other end of the phone, the disparity between your circumstances comes into focus. Separation. The line dividing you seems arbitrary, illusionary even, but the illusion has real and devastating implications.

There are no regulations or enforceable standards regarding conditions in immigration detention.[11] A recent report by the U.S. Civil Rights Commission, a non-partisan independent agency, found the immigration detention system to be “inconsistent with a system of civil detention that should not seek to punish immigrant detainees” as well as evidence of abuse and constitutional violations.[12] The Commission expressed serious concerns regarding transparency and accountability in the current system.[13]

Lacking institutional and legal safeguards, social and traditional media become an important avenue of redress, to bolster public support and apply pressure on detention facilities. Prolonged detention, physical and mental abuse, inadequate access to mental health and medical care, ill-treatment of LGBTQ individuals, denial of access to attorneys,[14] interference with religious observance, and retaliatory transfers are only a selection of the violations that have sparked protest from both inside and outside detention facilities.

Visitation leads to friendship and there is a time when the need to speak out about injustices surpasses the looming possibility of program termination. This is a choice that should never have to be made.

Recently, the Etowah Visitation Project was restored. But the call for a clear national policy protecting the First Amendment rights of visitors remains unanswered.

Driving away from the detention center, your freedom becomes palpable. The friend you watched disappear into the bowels of the system remains with you. Protected by the shroud of freedom, you must speak.

[1]Eucine Cho, Daniel Werner, Christina Fialho, Christina Mansfield, and Katherine Weathers, Unlawful Termination of Etowah Visitation Project at the Etowah County Detention Center, (Aug. 25, 2015), https://www.splcenter.org/sites/default/files/Etowah%20Visitation%20Project–Unlawful%20Termination%20Letter–FINAL%20FOR%20CIRCULATION.pdf.

[2] Id.

[3] Esther Yu-Hsi Lee, Detention Program Allegedly Barred Lawyers From Visiting Their Immigrant Clients, Think Progress (Aug. 27, 2015), http://thinkprogress.org/immigration/2015/08/27/3695441/detention-visitation-program-terminated-etowah/.

[4] Anita Sinha, Ending Mass Incarceration, But Not for Immigrants: A Tale of Two Policies, Huffington Post (Jul. 27, 2015), http://www.huffingtonpost.com/anita-sinha/ending-mass-incarceration-but-not-for-immigrants_b_7874750.html.

[5] American Civil Liberties Union: Deportation and Due Process, https://www.aclu.org/issues/immigrants-rights/deportation-and-due-process (last visited Oct. 9, 2015).

[6] U.S. Commission on Civil Rights, Statutory Enforcement Report, 127 (2015), http://www.usccr.gov/pubs/Statutory_Enforcement_Report2015.pdf.

[7] See id. at 109.

[8] CIVIC: Visitation Programs, http://www.endisolation.org/projects/visitation-programs/ (last visited Oct. 9, 2015).

[9] CIVIC, http://www.endisolation.org (last visited Oct. 9, 2015).

[10] Esther Yu-Hsi Lee, Detention Program Allegedly Barred Lawyers From Visiting Their Immigrant Clients, Think Progress (Aug. 27, 2015), http://thinkprogress.org/immigration/2015/08/27/3695441/detention-visitation-program-terminated-etowah/.

[11] American Civil Liberties Union: Immigration Detention Conditions, https://www.aclu.org/issues/immigrants-rights/immigrants-rights-and-detention/immigration-detention-conditions (last visited Oct. 9, 2015).

[12] U.S. Commission on Civil Rights, Statutory Enforcement Report, 106 (2015), http://www.usccr.gov/pubs/Statutory_Enforcement_Report2015.pdf.

[13] Id. at 124.

[14] Michael Kaufman & Aimee Mackay, Unlawful Denial of Attorney Visits at the Adelanto Detention Facility, (Aug. 24, 2015), https://www.aclusocal.org/wp-content/uploads/2015/08/Final-Ltr-to-GEO-re_-denial-of-attorney-access.pdf.

Jessica Brautigam is a 2017 Staff Editor of the Race and Social Justice Law Review.