In important news, the parties in Dilley Pro Bono Project v. ICE reached a settlement in proceedings before the United States District Court for the District of Columbia [PDF version]. The settlement agreement helps ensure that pro bono attorneys for detainees at two U.S. Immigration and Customs Enforcement (ICE) facilities will be able to facilitate telephonic mental health examinations for their clients in a timely manner. For this article, we will also rely upon the statement of facts contained in the plaintiff's complaint for declaratory and injunctive relief [PDF version].
The plaintiff, Dilley Pro Bono Project (DPBP), provides free legal services to mothers and children in immigration detention who are seeking asylum.
The incident sparking the litigation occurred at the South Texas Family Residential Center (STFRC), the largest of the U.S. Immigration and Customs Enforcement's (ICE's) detention facilities. The STFRC was established in 2014, and since its establishment, the ICE has permitted legal service providers to enter the facility to meet with clients. According to the complaint, the ICE provides offices and telephones for use by the legal service providers and their detainee clients. However, the complaint stated that in May of 2017, the ICE adopted a policy requiring that any telephonic mental health medical examinations (during which counsel is present while the client consults by telephone with the medical professional) required pre-approval. The complaint states that the ICE relied upon this policy to justify revoking access to the facility by Caroline Perris, an attorney for the DPBP, who had arranged a telephonic medical examination for a client for March 3, 2017. The complaint states that she arranged this telephonic mental health evaluation because it was necessary in order to avert the deportation of her client and her client's child to the country from which they fled.
The DPBP stated that the revocation of Perris's access to the STFRC “significantly impeded” the ability of both the DPBP and its managing attorney, Shalyn Fluharty, to effectively represent potential clients in immigration detention. They noted, first, that because the DPBP relies on mental health professionals who are willing to provide free services the DPBP must be able to accommodate their schedules. The DPBP stated that the ICE had implemented no guidelines or timetables for approving requests for telephonic mental health examinations and, in fact, would often fail to approve them in a timely manner. The DPBP accordingly argued that the ICE's policy was contrary to law.
On August 15, 2017, the plaintiffs and the ICE entered into a stipulated settlement agreement. The ICE denied and continues to deny that its policies involving telephonic medical examinations were improper. Nevertheless, both parties agreed to the stipulated settlement agreement, finding it to be in their best interests and in the interests of justice.
The agreement affects the STFRC and the Karnes County Residential Center (KCRC), which is also in Texas. Under the settlement agreement, legal counsel must still make a request to ICE regarding a telephonic medical examination. Furthermore, the request cannot stay removal or otherwise interfere with any actions of the United States government related to the detainee that would conflict with the scheduled evaluation. However, the agreement prohibits the ICE from “tak[ing] actions for the purpose of interfering with a resident's ability to participate in a telephonic medical evaluation.”
Under the agreement, the ICE may only base the denial of an initial request for a telephonic medical examination on one of the following grounds:
- Confirmation that the health provider's relevant professional license or credential is currently revoked or suspended;
- Identification of relevant criminal history of a health provider that indicates a risk of harm or abuse to the resident;
- Confirmation that the provider's access to the family residential center is currently revoked for misconduct that indicates a risk of harm or abuse to the resident.
If the ICE denies an initial request, it will be required to provide the requester with a detailed written explanation for the denial at the same time that the denial is issued. This must give the requester time to independently verify the basis of the denial. In the event that the parties disagree over a denial, the settlement agreement sets procedures for “good faith” conferrals to jointly and informally resolve the dispute.
One condition of the agreement was that Judge Christopher R. Cooper of the District Court for the District of Columbia, or a magistrate judge designated by Judge Cooper, retain jurisdiction over the case for 2.5 years in order to enforce the settlement agreement. Judge Cooper assumed such jurisdiction and dismissed the case with prejudice on the same day [PDF version].
Additionally, the ICE agreed that Caroline Perris's access to the STFRC is reinstated. The ICE also agreed to refrain from taking any action to inhibit the access of any of the plaintiffs' attorneys based on the events of March 3, 2017. It is worth noting that Perris' access was reinstated in response to the initial complaint filed by the DPBP.
The settlement agreement represents an important victory for pro bono attorneys and their clients at two major ICE detention facilities. It is important that individuals in immigration detention have access to legal counsel and services to assess their situations and protect their rights. As the plaintiffs noted, mental health evaluations may in many cases be decisive for mothers and children staking a claim for relief after crossing the Southwest Border. Regardless of the concerns that led to the ICE's implementation of the policy in question, individuals in immigration detention must be permitted to have their cases fully assessed by qualified legal representatives, which includes having access to crucial mental health evaluations when necessary. The settlement agreement promises to help ensure that attorneys have the ability to offer clients in detention at the two covered facilities the full and robust representation that they deserve. In so doing, the agreement will ensure that clients at the facilities have the opportunity to have their cases for relief effectively developed and considered.