February 09, 2017

Following Muslim Ban Detentions, Senator Harris Introduces First Bill to Guarantee Access to Counsel at Border, Ports of Entry

WASHINGTON, D.C. - U.S. Senator Kamala D. Harris, a member of the Senate Committee on Homeland Security & Governmental Affairs, introduced her first piece of legislation today, the Access to Counsel Act, to ensure that those held or detained while attempting to enter the United States, whether at a border crossing or a port of entry, be guaranteed access to legal counsel.

In the wake of the Trump Administration's Muslim Ban, reports flooded in of refugees, Green Card holders, and even U.S. citizens-many of whom were women, elderly, or children-held for long periods of time, and denied access to volunteer lawyers. Last week, a federal court in Virginia issued a temporary restraining order that mandated that Legal Permanent Residents returning from abroad should have access to lawyers while being detained at Dulles International Airport. Subsequently, a federal court in Washington State issued a temporary halt to the Muslim Ban, after which the time the Departments of State and Homeland Security explicitly stopped enforcing the Ban. However, accounts of protracted holding at ports of entry still came in, even after the reversal in the agencies' policies. Families are still scared to let their loved ones board planes, for fear that they will be held for long periods of time without access to a phone or an attorney.

Sens. Richard Blumenthal (D-CT), Cory Booker (D-NJ), Tom Carper (D-DE), Kirsten Gillibrand (D-NY), Ed Markey (D-MA), and Elizabeth Warren (D-MA) are original co-sponsors.

The Access to Counsel Act has received support from nearly 40 leading organizations from the international, faith, Asian, Latino, Muslim, Jewish, and immigrant rights communities such as Amnesty International USA, Bet Tzedek, Church World Services, Council on American-Islamic Relations, Kids in Need of Defense, National Council of La Raza, National Immigrant Justice Center, South Asian Americans Leading Together, the Coalition for Humane Immigrant Rights Los Angeles, J Street, and the U.S. Committee for Refugees and Immigrants.

"Detention without access to representation goes against the basic values of our judicial system," said Senator Harris. "Refugees, immigrants, students, and tourists all deserve to be able to access their lawyer in legal proceedings that could change the course of their lives, whether they enter the country at an airport or come across the border. Interactions with immigration enforcement officials are often confusing and disorienting and no one should be exploited because of their lack of knowledge of our legal system."

"Access to legal counsel is a fundamental right-one that has come under assault like never before by an administration that has allowed and enabled blatant disregard for the law," said Senator Blumenthal. "Several U.S. Customs and Border Protection officials were reported illegally arresting, detaining and intimidating innocent individuals arriving at our airports-depriving them of legal counsel, contact with their families and forcing them onto planes out of the country. Congress must act to unequivocally denounce these destructive and denigrating acts, and to firmly protect the bedrock civil rights on which our democracy is built."

"The right to counsel is a fundamental American value enshrined in the Constitution," said Senator Booker. "In the early weeks of the Trump Administration, we've already seen federal officials deny access to counsel to those detained upon entering the United States. Our bill seeks to fill in gaps that leave people vulnerable and without adequate legal representation at the border and ports of entry."

"This legislation takes important and necessary steps to help protect the legal rights of anyone who is detained at our borders, ports of entry, and other locations throughout the country," said Senator Gillibrand. "Our border patrol agents have a very difficult job, but we've seen too many cases of families and young children being wrongfully detained at our borders for hours with little accountability and no access to legal counsel. I urge all of my colleagues to support this bill and improve our customs and border control processes."

"Those seeking to enter the United States, especially unaccompanied children, need and deserve the opportunity to have a lawyer help them understand their rights and chart their first steps through our immigration system," said Senator Markey. "Last week, in the wake of President Trump's unlawful executive order, it was news to many that arrivals to our country are routinely denied the ability to consult with counsel, and subject to difficult, even intolerable, conditions. This bill would bring a much-needed fix to our broken immigration system."

"Justice is denied when refugees, interpreters, students, professors, doctors, and visitors to the United States are detained, deported, and removed without any legal counsel or advice. The Access to Counsel Act reminds us of who we are: a nation that believes in fairness and justice for all, no matter where we come from." - Senator Elizabeth Warren

The introduction of the Access to Counsel Act follows a letter sent by Harris to Department of Homeland Security Secretary John Kelly urging the Customs and Border Patrol (CBP) not to inhibit access to counsel for those arriving at U.S. ports of entry, and another signed by two-thirds of the Senate Democratic caucus sent to President Trump urging him to revoke the Executive Order.

Since the announcement of the ban, reports have revealed that elderly people with medical conditions, children, and students were pressured to sign forms to give up their legal permanent resident status. These types of abuses demand that people have access to counsel under these circumstances, especially where detention endangers their health, rights, and safety.

This legislation builds off of Senator Harris' record on this issue. In 2014, as Attorney General of California, Harris sponsored legislation (SB 876) that provided $4 million to qualified non-profits to provide legal services for unaccompanied minors, and convened law firms and legal services organizations to help close the legal services gap between what unaccompanied minors needed and what they were receiving.

The Access to Counsel Act of 2017:

  • Affirms that the right to access to counsel attaches at the time of holding or detention;
  • Provides a redress option if counsel cannot personally meet with those detained at the border or ports of entry for the provision of legal advice remotely (e.g., phone or Video Teleconference);
  • Invalidates any effort by immigration enforcement officials to persuade someone to relinquish their legal status (by executing a Record of Abandonment of Lawful Permanent Resident Status or Withdrawal of Application for Admission) if that person has been denied access to counsel;
  • Directs that immigration enforcement officials shall limit detention to the briefest term possible and least restrictive conditions practicable, and will include access to food, water, and restroom facilities.

U.S. Rep. Pramila Jayapal (D-WA) today introduced companion legislation in the U.S. House of Representatives with Reps. John Conyers (D-MI), Zoe Lofgren (D-CA), Jerrold Nadler (D-NY), Sheila Jackson-Lee (D-TX), Luis Gutierrez (D-IL), Judy Chu (D-CA), Hakeem Jeffries (D-NY), Eric Swalwell (D-CA), Lucille Roybal-Allard (D-CA), and Michelle Lujan Grisham (D-NM) as cosponsors.

Click here for a PDF file of the legislation.