Report: Representing Detained Clients in the Virtual Legal Landscape

Immigration legal service providers have long explored how to provide legal representation to underserved communities, including by providing remote representation. In the context of Immigration and Customs Enforcement (ICE) detention, for many years advocates have made efforts to connect with clients detained in remote locations using videoconferencing technologies. The COVID-19 pandemic forced all attorneys to figure out how to provide high-quality representation remotely, and importantly, forced immigration agencies—including the Executive Office for Immigration Review (EOIR)—to heavily rely on remote appearances. Read the Full Report

Although the height of the pandemic has waned, the legal profession has been forever changed. Remote representation is now, and will continue to be, a critical part of any legal practice. 

In representing detained noncitizens, this move toward remote work has many benefits, even beyond protecting lives during a pandemic.4 Remote work has greatly expanded access to counsel by making it easier for attorneys to take on representation. For example, now there is often no need to travel to an (often far away) courtroom for a five-minute master calendar hearing. Instead, the attorney can save hours on travel and waiting time by doing the hearing virtually. Similarly, attorneys do not need to drive five hours (or more) to visit their client in a remote detention facility every time they need to communicate. Instead, client communication can often be accomplished via televideo or phone calls. This huge time savings allow attorneys to take on representation of more detained individuals and allows more detained individuals to afford counsel. Moreover, remote options have allowed attorneys to continue to represent clients even if ICE transfers them to remote detention facilities. 

In some ways, internet-based immigration court hearings have also made it possible to provide more robust and effective representation to clients. For example, a witness who is outside the United States may be able to testify in court via Webex (the immigration court’s virtual hearing platform) even if they are unable to travel to the United States for a hearing. Similarly, a witness who is undocumented may be willing to testify via Webex even if they would be afraid to enter a physical courtroom. Additionally, it may be much easier to secure an expert witness if that expert can testify or conduct their evaluation from their office, instead of needing to go in person to a courtroom or to a detention center. 

But remote work in the detained context also comes with significant challenges. This practice advisory will focus on challenges unique to the detention context and how best to address some of the key challenges to effectively providing remote representation to detained noncitizens.

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