As of January 1, 2019, the federal government held more than 51,000 noncitizens in immigration detention. Over the course of a year, nearly half a million noncitizens will pass through Department of Homeland Security custody within the interior of the United States while the government initiates proceedings to remove them from the country. Many of those detainees pursue immigration relief and contest both their detention and removal. However, numerous reports from the Office of the Inspector General and immigration practitioners consistently observe substantial barriers to effective communication from detention: Detainees are frequently held in or transferred to isolated locations, detention facilities often do not provide adequate telephone access or even alternative forms of communication, and facilities often deny or substantially delay in-person meetings with attorneys or other visitors. These barriers significantly affect the ability of unrepresented detainees to gather and present relevant evidence critical to litigating their removal claims. They also undermine essential communication between legal counsel and the detainees they represent in those proceedings.
This Article argues that due process imposes affirmative obligations on the government to facilitate evidence gathering and communication with legal counsel for those noncitizens that it detains. While previous scholarship has advanced arguments for “immigration Gideon”—i.e., suggesting noncitizens should have a right to appointed counsel at state expense—our intervention instead focuses on how conditions of confinement that impair communication with counsel and evidence gathering may themselves run afoul of noncitizens’ Fifth Amendment due process rights.
We offer a novel interpretation of recent Supreme Court and circuit court precedents on civil detention in order to ground noncitizens’ right to communicative access in the Fifth Amendment and propose a new framework for evaluating noncitizens’ rights to effective communication. Importantly, we also argue that the scope of noncitizen detainees’ rights to communicate with counsel should not be determined by the stark division between criminal and civil detention precedents. Rather, noncitizens’ access to counsel rights should encompass the procedural protections due process requires whenever the government acts as both initiator of adverse legal proceedings and jailor, including those protections traditionally associated with the Sixth Amendment. Our analysis finds that the scope of governmental obligation to provide communicative access derives from the noncitizens’ liberty interest in avoiding both detention and deportation and, in particular, follows from the government’s dual role in immigration proceedings as both initiator of adverse proceedings and jailor. The obligation to ensure a “full and fair” hearing requires that the government not impose barriers to communication that provide it with an unfair advantage in the litigation of noncitizens’ removal claims.
We conclude that the Fifth Amendment’s Due Process Clause imposes affirmative obligations for the government to facilitate evidence gathering and communication between noncitizen detainees and their counsel. While the scope of the state’s affirmative obligations may vary in accordance with the immigration status of the detainee, we argue that in all cases the Fifth Amendment requires the federal government to provide detained noncitizens adequate means to solicit legal representation, meet privately with retained counsel, communicate with potential witnesses, access necessary records, and prepare evidence and testimony. Conditions of confinement that frustrate these basic guarantees offend the Fifth Amendment’s protection of a full and fair hearing and should be held unconstitutional.