Denial of lawyer sparks suit

Government claims discretion, but immigration advocates protest

Published 09:00 p.m., Monday, March 22, 2004

The Department of Homeland Security has rejected a Renton man's request to have an attorney present at an immigration interview that could lead to his imprisonment or deportation.

"I have a family -- two kids and a wife," Ramon Torres said. "I should at least have the right to have lawyer to defend myself."

The government's insistence that the interview be held in private has drawn complaints from immigration advocates and inspired a first-of-its-kind lawsuit filed earlier this month in U.S. District Court in Seattle asserting that Torres has a right to an attorney and due process under the law.

Immigration lawyers nationwide say they have also been denied access to these hearings. In others, however, lawyers are permitted. The government argues that it has discretion in these cases, but advocates for immigrants say the policy is inconsistent and unfair.

Torres, who has lived legally in the United States for more than a decade, was flagged at a routine reentry screening while returning from a two-week trip to Mexico where he visited his ailing grandmother.

The border agent noticed an old conviction, which had been expunged, for possession of a controlled substance on his record and told him that he may not be admissible.

Because Torres' status was not immediately clear, the agent granted him what's known as a deferred admission, allowing him in on the condition that he show up for a follow-up interview in Seattle.

With so much at stake and immigration law so complex, Torres hired Christopher Strawn, an immigration lawyer at Seattle law firm Gibbs, Houston and Pauw.

"I didn't want anything to go wrong," Torres said.

But when Strawn began discussing the upcoming interview with immigration officials, he learned that he was not welcome at the interview.

"I was told that immigrants have no right to counsel when they have deferred inspections -- even when they pay for the attorney themselves," Strawn said. "In other words, lawyers are prohibited."

Mike Milne, spokesman for Homeland Security's Customs and Border Protection division, said he couldn't comment on Torres' case because of the pending federal case.

However, in general terms Milne said, "The right to counsel is not afforded during the inspection process, unless it involves a criminal investigation and (the suspect) has been taken into custody."

But if the inspection process leads to deportation proceedings -- then the person has a right to an attorney, Milne said. He added that a person couldn't be removed from the United States as a result of a secondary inspection.
What would be the harm in allowing an attorney to sit in on the interview?

"I'm not going there," Milne said. "The regulation is clear."

However, reports from other districts and other lawyers in this district indicate that in many cases, lawyers are allowed in the interview at the government's discretion.

Strawn said the facts of the case indicate that the Torres case is clearly admissible under the law. But Torres, a construction plasterer, faces a situation fraught with serious consequences and complex legal issues -- including a 9th U.S. Circuit Court of Appeals ruling maintaining admissibility for people with expunged convictions such as Torres' -- it's prudent to have a lawyer present in the interview.

"He wanted a lawyer to make sure that questions or concerns about his immigration status could be answered by someone who understands the law," Strawn said.

Torres could be denied admission in the differed inspection interview, Strewn said. In that case, the government could start deportation proceedings that would cost more money in legal fees and with no guarantee that he would be allowed to stay.

Having a lawyer could be invaluable, Strawn said, because "most immigration officers are used to seeing any conviction, even if it's been expunged, as a problem. So, you really want to make sure there is somebody there who can explain why this old expunged conviction does not make him inadmissible."

Matt Adams, directing attorney for Northwest Immigrant Rights Project, said he's glad the issue is going to be resolved in court.

"These are fundamental rights," Adams said. "An individual does have the right to have an attorney to make sure these rights aren't forfeited. Our position requires that when someone is facing an interview that can have such severe impact, the U.S. Constitution requires that everyone receive due process under the law. In general, due process includes having an attorney there to help them navigate the immigration."

U.S. immigration law is modeled after, but in many ways different than, the due process principles established by the Constitution. Immigrants are, for example, allowed to have a legal representation in immigration court -- but unlike citizens accused of a crime, the government is not required to provide a lawyer if the immigrant cannot afford one.

Re-entry inspections are not considered part of immigration court, although the interview can become a significant part of subsequent immigration litigation.

Adams said it's good that the case is going forward "to help clarify this policy and whether there is a Constitutional right to an attorney" in these inspections.

But even if the policy is ruled constitutional, Adams said the way the government is applying it is a problem.

"When an agency has these arbitrary actions -- it is still unlawful," Adams said.

"Democracy does not operate based on whether a person is in a good mood or not."