Court hears arguments on attorney access at ICE field offices amid rise in detentions

Legal advocates seeking a court order requiring “meaningful” attorney access for those detained in Oregon by U.S. Immigration and Customs Enforcement officers spoke about the recent surge in ICE detentions, including in Lane County, at a court hearing Thursday, Dec. 18.

The federal government has “significantly increased the flow of resources and personnel to Oregon to accomplish their enforcement surge objective,” but attorneys have been mostly unable to advise those in detention at ICE offices in Oregon, Tess Hellgren, an attorney with the Portland-based Innovation Law Lab, said at the hearing.

Such access has been granted “only if it is convenient,” Hellgren said, adding that, based on testimony, it’s been “rarely convenient” for ICE to grant such access.

Oregon has ICE offices, but the closest detention facility is in Tacoma, Washington. 

In written statements submitted as part of the court case, ICE officers in Oregon described a lack of time and space to accommodate attorney visits at offices in Portland, Eugene and Medford.

As ICE offices in Oregon are not considered detention facilities, the government has argued that there is a need “to process and transfer” detainees within 12 hours, and that attorney access is not always possible because of “operational, logistical, and safety needs and limitations” at the Oregon offices.

Government attorneys have argued in a court filing that “there may be brief deferral of attorney access” until detainees arrive at a detention facility.

Hellgren and Innovation Law Lab attorneys argued their case on behalf of a legal organization, CLEAR Clinic, and a community advocacy group, Pineros y Campesinos Unidos del Noroeste.

The request for a court order includes proposed guidelines for “meaningful” attorney access, to include in-person consultation for a minimum of an hour.

In stating the importance of having attorney counsel in Oregon, Hellgren said that simply waiting until detainees arrive at an out-of-state detention facility provides access “too late” to help many detainees.

ICE officials “have already made significant decisions impacting individual rights and liberty in Oregon, including making decisions about [the detainees’] custody and in many cases, coercing them to make unknowing or involuntary waivers of their rights,” Hellgren argued.

The hearing Thursday took place over the phone before U.S. Senior District Judge Ann Aiken.

Katrina Kilgren, a Eugene-based immigration attorney, testified about the surge of enforcement activity in the area.

“In October and November of this year, and ongoing, we’ve seen a dramatic increase in community enforcement actions, so ICE officers in the community conducting traffic stops or conducting apartment raids, stopping people on their way to work,” Kilgren said.

Kilgren noted how on Nov. 19, “at least 15 people are understood to have been arrested” in the Eugene and Lane County area, while on Nov. 5 “at least” 12 were arrested. On some other days, there have “been one or two people taken,” Kilgren said, adding that, before this surge, while working in Eugene as an immigration attorney for 10 years, “I haven’t heard of any community enforcement by ICE.”

Kilgren referred specifically to an apartment raid on Oct. 15, in which she said she understood four people to have been taken to an ICE detention center. The date matches that of an FBI and ICE raid at the Woodland Creek apartment complex in Eugene.

In written testimony, Kilgren has described being denied access to meet with detainees at the Eugene ICE office and being threatened by a Federal Protective Service security guard with trespassing.

The attorney access issue also affects not only those already detained, but also those expected to appear at the ICE office in the federal building in Eugene for administrative check-ins, according to Kilgren. Such regular check-ins are often a requirement for those pursuing a case in immigration court.

Since the stepped-up street enforcement actions by ICE officers, “I’m getting a lot more calls about people who are worried about going to the ICE building and wanting to know whether they should go to their appointment or not,” Kilgren said, adding that she sends emails to ICE officers before such appointments for her clients to let the officers know she represents those checking in.

Earlier this year, before the recent surge in street-level enforcement activity, data showed an increase in detentions in Eugene that advocates linked to people arriving for administrative check-ins and then being detained.

Kilgren said she’s approached supervisory ICE officials in Eugene about access concerns to try to understand the restrictions.

“But when I haven’t gotten answers, or at least I haven’t gotten kind of an understanding that I think is in accordance with the law, then I’ve advocated with our Oregon senators, and have discussed it with other advocates and attorneys,” Kilgren said.

In a written statement submitted as part of the case, an ICE officer in Eugene said: “Attorney access to an individual in ICE custody at the [Eugene office] is limited while [Enforcement and Removal Operations] is actively booking and processing the individual, which often accounts for the majority of time spent in the office prior to transfer” to a detention facility outside the state.

Government opposition

Michael Velchik, an attorney with the federal Department of Justice, argued against the request for an injunction, citing safety concerns for federal Department of Homeland Security officers and the federal government’s authority when it comes to immigration enforcement.

Those seeking the court order “would like some CLEAR Clinic attorney to have sign-off before DHS can transfer a detainee to an actual DHS facility,” Velchik said.

“We think that’s insane. We have protesters setting federal buildings on fire, and then we’re going to have some veto power over where the federal government can reallocate different detainees to their facilities?” Velchik said.

Velchik did not explain further about a building fire, but last month a 34-year-old man pleaded guilty to arson after federal officers reported seeing him toss a lit flare onto a pile of materials near a vehicle gate at an ICE office in Portland.

In his argument, Velchick referred to dozens of arrests related to alleged offenses that have taken place at ICE offices. Portland has seen frequent demonstrations against immigration enforcement activity and many arrests, while at similar Eugene protests there have been far fewer arrests and citations.

“The president of the United States had to call on the National Guard. And in this context, plaintiffs are asking to be able to dictate who can leave buildings at different times,” Velchick said in his argument, referring to a stalled effort by President Donald Trump to deploy National Guard members to Portland despite opposition from Gov. Tina Kotek and others. The deployment has been tied up in court after numerous legal challenges.

Velchik also argued a lack of standing, meaning that he questioned whether the parties seeking the court order have actually or will imminently experience harm from a lack of attorney access.

The lawsuit, first filed in October in U.S. District Court in Eugene, changed in November to add a plaintiff, “Leon X,” who testified Thursday about his fears of being detained by ICE officers despite having Deferred Action for Childhood Arrivals status. The lawsuit was amended to seek class action status.

Velchik argued that “Leon X” lacks standing.

“He has not been arrested. He is not subject to any removal action,” Velchik said.

What’s next

At the end of the hearing, which lasted just over two hours, Aiken said she had no date for when she would make her ruling. 

After the hearing, those seeking the court order spoke with reporters via an online conference.

Kilgren said ICE officers have not been arresting people with criminal records.

“The cases that I’ve seen in Eugene, individuals are being arrested who have zero — like, absolutely zero, not even traffic tickets, much less criminal arrests,” Kilgren said. “It’s something that I can say really confidently, that the majority of the people do not have criminal arrests, at least that have been arrested in Lane County.”

Hellgren said that along with whether to grant a court order, Aiken could also issue an order with different guidelines for attorney access than those put forward in the request for a court order.

“The court absolutely has broad powers to decide what is appropriate in the case, so the court could absolutely grant an injunction that looks different from the exact request that we made,” Hellgren said.