May 15, 2014
Arali was at home with her three-year-old son, Jose, when she got a call from Suffolk County Jail, a correctional facility about half an hour from her apartment in Framingham, Massachusetts. Her husband, Milton, was on the other end of the line. In tears, Milton explained to her that he had been detained after being in a car that was pulled over for a minor traffic violation.
Both Milton and Arali are undocumented immigrants from Guatemala. Milton migrated to the United States at twenty-one years-old in 2005 following a hurricane that devastated his farm and much of Guatemala’s highland region, leaving him without a source of income to support his two children. Since then, Milton’s family back in Guatemala has been overwhelmed by the drug and gang-related violence that has ravaged the country over the last three decades. Drug traffickers recently killed Milton’s cousin. For Milton, deportation could mean risking death.
Milton, who prefers to use only his first name because of his open immigration case, was carpooling with his friend when a state policeman pulled them over on Highway 495, near his home. The police officer said the car’s stickers had expired. He asked Milton, who was in the passenger seat, for identification and Milton handed him an ID from the Guatemalan consulate. Shortly after, Milton says the police officer told him, “ICE is looking for you.”
What he didn’t know was that ICE, or Immigration and Customs Enforcement, had issued a deportation order for him. These orders are relatively common. They instruct immigrants to appear in court at some undetermined time and place, and further instructions are, in theory, supposed to reach the immigrant by mail. This often does not happen. In Milton’s case, the police officer arrested him and took him to Suffolk County Jail, where five hours after his arrest he was finally given a chance to call his wife. “What are we going to do?” Arali asked him in tears over the phone. “What’s going to happen to us?”
During the following four months that Milton was detained at Plymouth County Detention Center, phone calls were his single lifeline to fighting deportation and talking with his wife and son Jose, who was told his father was away for work. But that lifeline came with a heavy price. Each of these calls cost about $7, according to Milton and Arali. Every eight days or so, Arali would deposit about $75 in an account to pay for the phone calls. Because of Jose, Arali didn’t think twice about the cost. “Milton would say, ‘Don’t deposit any more money. You need that for other things,’” Arali, 28, explains. “I would tell him, ‘I need to.’ I couldn’t find the words to tell [our son] what was happening.”
Arali and Milton are just two of thousands of undocumented immigrants across the United States who are charged exorbitant rates for calls from county jails that contract with ICE to hold immigrant detainees. About 50 percent of all immigrant detainees are held in county jails, according to ICE, and many of these cash-strapped jails, like Plymouth County Detention Center, have sought to raise revenue through contracts with phone companies that charge excessive rates and kick back part of the profits. Immigrant detainees end up paying the same inflated telephone rates charged to their citizen inmate counterparts, but unlike jail inmates charged with a crime, immigration detainees don’t have access to court-appointed attorneys. This means they are responsible for finding an attorney or representing themselves, both tasks that require affordable phone access.
“There is no right to court-appointed council if you’re an indigent immigration detainee,” confirms Claudia Valenzuela, associate director of litigation with the National Immigrant Justice Center based in Chicago. “So communicating with family or friends is extremely important because you have to get your own evidence. If you don’t have an attorney, you’re basically navigating alone.”
The few rights afforded to immigrant detainees are detailed in a series of national detention standards issued by ICE in three different editions in 2000, 2008 and 2011. The telephone standards from 2011 are the most robust. In them, ICE requires facilities to offer effective and confidential communication with legal counsel and “reasonably priced telephone rates” in which “contracts for such services shall…be based on rates and surcharges comparable to those charged to the general public.” Any difference in rates should “reflect actual costs associated with the provision of services in a detention setting.”
But jails contracting with ICE are not compelled to follow the most recent version of these standards. Some facilities reviewed by The Nation do in fact follow the most recent edition of ICE’s detention standards. But other facilities, like Essex County Jail in New Jersey, which can hold up to 800 detainees on any given day, operate under ICE’s 2008 standards. These only mention “reasonably priced telephone services” and make a thin reference to telephone policies that will “foster legal access.” Still other facilities, like Plymouth County Detention Center where Milton was held for four months, function under the 2000 standards. These standards, which were created by Immigration Naturalization Services, an agency that was replaced by ICE in 2003, do not mention the cost of calls, stating only that detainees be permitted “to make direct calls to legal service providers.”
Immigrant rights advocates say these ill-defined, inconsistent and unenforceable standards allow jails to charge immigrant detainees rates that effectively disconnect them from family and legal access. In February, county jails and state prisons began implementing a recent Federal Communications Order that capped interstate debit and pre-paid calls at $0.21 per minute and $0.25 per minute for collect calls. But that left in-state calls, which fall under state regulation, untouched.
The exclusive contracts county jails hold with telephone companies like Securus, Global Tel*Link and ICSolutions continue to charge high rates. At Santa Ana City Jail in California, for example, a long-distance, 15-minute in-state phone call can cost more than $13. The jail charges 69 cents a minute for in-state calls and a $3.30 connection fee. The city collects a 54 percent commission on the total profits from the calls. The jail in Yuba County, also in California, has a rate structure that is based on the distance to the receiver and time of day. A long distance, 15-minute in-state phone call can cost more than $12 for a detainee. The county collects a 45 percent commission. Santa Ana made more than $237,000 in commission on calls last year; Yuba County more than $109,000.
“ICE is aware of the considerable range in detainee phone rates at facilities across the detention system,” ICE wrote to The Nation in an e-mail. “In some facilities, rates are substantially less than rates and surcharges comparable to the general public, but in the other facilities, certain types of calls are higher. At local jails and municipal facilities, ICE does not have input or control over the telephone rates or telephone service providers subcontracted by the government entity.”
As ICE denies a role in this odd patchwork of varying standards, the families of immigration detainees stretch themselves thin to maintain their family connections and stay in contact with their lawyers. When Milton was detained in June of last year, stay-at-home mom Arali took two part-time restaurant jobs, making $8 an hour. But even then, some weeks Arali didn’t have enough to pay for rent, let alone a phone call.
Many detainees are held in facilities in remote areas, and while criminal defendants in those same jails have a right to court-appointed counsel in the county where they are held, immigrant detainees do not. Because many immigrant detainees seek out free legal services from non-profit law firms—the median household income of undocumented immigrants was about $36,000 in 2007 compared to $50,000 for US-born households—phone access is essential.
Exacerbating the problem, people in detention can’t receive calls or leave voice messages unless they pay an additional fee. About 78 percent of detainees are in facilities that do not allow attorneys to schedule calls with their clients, according to a 2010 report from the National Immigrant Justice Center, and many jails have phone policies that make it difficult for detainees to use the phones during business hours when their lawyer might be available. Family members end up playing a crucial role in facilitating legal cases between attorneys and their detained loved ones.
“A lot of clients have complained to me when they do get access to phones, it’s late at night like 8 or 9 o’clock,” says Anoop Prasad, an attorney with the Asian Americans Advancing Justice-Asian Law Caucus in San Francisco, California, which currently has between fifteen and twenty active immigration cases. “They might be able to call family, but they can’t call their attorneys to prepare for their case.”
In Milton’s case, Arali found a local private immigration lawyer through a friend at church. Arali worked overtime to be able to pay for an attorney and sometimes didn’t deposit phone money to cover the fees. The law firm pays a company to accept collect calls from the local detention centers, including Plymouth, but the costs were “not nominal,” according to Alejandro Heredia-Santoyo, Milton’s attorney. “Most of the time that we spoke, Milton would call or I would let Arali know I needed to talk to Milton,” says Heredia-Santoyo. “Then she would give me a message that he would call me at a certain time. Without family, it becomes tremendously difficult to have that line of communication.”
ICE does provide a pro-bono platform for detainees to make free calls to approved nonprofit legal services, but even with this service, attorneys say the telephone tree system is complicated. It requires a live person to pick up the phone and sometimes fails to connect calls. If no one is available to answer the call, detainees can’t leave messages and attorneys are often left waiting to hear back from their client. “A lot of people I represented would have…appeals coming up,” says Aneesha Gandhi, an attorney with the National Immigrant Justice Center in Chicago. “The fact that I couldn’t get in touch with them when I needed to made it difficult for me to advocate for them.”
Some facilities reviewed by The Nation, like Pinal County Jail in Arizona, McHenry County Jail in Illinois, Calhoun County Jail in Michigan and Portsmouth City Jail in Virginia, do allow inmates to leave and receive voice messages—for a fee. This fee can range from 50 cents to $1.50 per message. These counties collect a percentage of the calls from 45 cents a call at Calhoun to 75 cents at Portsmouth, according to their contracts.
“As a nonprofit, the demand for services is higher than resources we have as staff,” explains Eleni Wolfe-Roubatis, immigration program director for El Centro Legal de la Raza in Oakland, California, which represents immigrant detainees. “If you’re able to arrange a call with a client rather than driving to a county jail for 3 hours, you can do more cases.” Wolfe-Roubatis says El Centro reviews about 120 possible detention cases each month, but ends up only taking on about twenty-five at a time. The organization also has a network of volunteer attorneys who are currently handling ten other cases.
Because nonprofit legal services are overstretched or detainees may not know they are available, many low-income immigrants represent themselves in court. In 2013 about 41 percent of undocumented immigrants did not have a lawyer during their immigration case, according to the Department of Justice. For detained immigrants that figure rises to 84 percent, according to a 2007 report from Amnesty International.
ICE allows detainees to make free phone calls to government consulates, the Office of the Inspector General to make complaints, some non-profit agencies and ICE itself. But self-representing detainees can’t make free phone calls to former attorneys, possible witnesses or any other government agency to help their case. They have to pay for those calls themselves.
“If you don’t have friends or family and you need documentation from a criminal case or a school, you’re on your own in gathering this information,” says Valenzuela of the National Immigrant Justice Center. “How do you make that call to that school if it is not on a pre-approved list or if you don’t have the funds? It really infringes on a person’s right to due process to be able to make your case.”
The issue is not new to ICE. A 2007 Government Accountability Office report outlined the severity of the poor quality of telephone access for detainees, writing the “detention facilities showed systemic telephone system problems.” ICE then implemented a new provision in its contract with Talton Communications, the telephone service provider that serves the few detention facilities it owns. It now withholds half the profits from debit and collect calls until the provider passes a semi-annual performance review. ICE does not accept commissions on phone calls because of the Anti-Kickback Act of 1986, which prohibits contractors from offering the agency any commissions on services.
Calls from the six facilities owned and operated by ICE now cost substantially less than calls from many county jails. Since ICE implemented these changes, many of the nonprofit law firms and advocacy organizations interviewed by The Nation say they have brought the issue of phone call costs to their local ICE offices, but the price of a call has yet to change at county jails.
In December, the American Civil Liberties Union of Northern California filed a class action lawsuit against ICE on behalf of all detainees held at Contra Costa, Sacramento and Yuba County detention facilities, arguing that restricting phone access “denies or severely limits Plaintiffs’ statutory and constitutional rights.”
“The cost and structure pose a huge barrier to even contacting a lawyer and asking them to represent you through an initial consultation,” says Julia Harumi Mass, lead counsel in the lawsuit with the ACLU. “Off the bat [that] limits your ability to get an attorney to such an extent that we think it violates the right to counsel.”
At Sacramento County Jail, inmates pay up to $4.75 for a 15-minute in-state call, according to its contract with ICSolutions provided by the ACLU. The company also charges $6.50 for a “credit/debit card transaction fee for pre-paid collect” accounts and a monthly collect billing fee of $2.49. Sacramento County collects a 65 percent commission on every call. At West County Detention Center in Contra Costa County, detainees can pay up to $8 for a 20-minute in-state phone call. The county collected a $75,000 bonus for signing the contract on top of a 57 percent commission on all calls, according to its contract obtained by the ACLU.
Audley Barrington Lyon Jr., a 34-year old Jamaican immigrant and the lead plaintiff in the case, is currently being detained at West County Detention Center. He has been trying since October to get the documents he needs to apply for a U-Visa, a class of visa granted to immigrants who are crime victims, but his wife can’t afford to pay for his phone calls to prove he was randomly shot and cooperated with authorities to find the shooter.
“My wife and I have been forced to communicate by writing letters to one another,” he wrote in his declaration. “However, it has been extremely slow and inefficient for us to work together on my immigration case by mail. A simple question causes a delay of several days.”
ICE denied any allegation of “ongoing violations of the constitutional and statutory rights of immigrants held in government custody pending deportation proceedings,” according to its court response. The lawsuit is now moving forward at the Northern District Court of California.
That same month, California Assembly member Bill Quirk introduced a bill that would prohibit inmate telephone service contracts with jails and juvenile facilities from including “commission or other payment” to the facility. They would also have to provide the “lowest cost of service” to inmates and detainees. The California-based advocacy group Community Initiatives for Visiting Immigrants in Confinement (CIVIC), has long pressed for such a measure. Co-directors Christina Mansfield and Christina Fialho founded a visitation program at West County Detention Center in 2010. “[Detainees] inability to maintain contact with their families was completely dire,” says Mansfield, whose organization now has about 700 visiting volunteers across the country. The bill passed the Local Government Committee on April 23, and the Assembly will vote on the bill later this month.
Advocates are also laying the groundwork for reform in New Jersey. On April 30, a group of family members of current county jail inmates, former ICE detainees and criminal justice organizations filed a petition with the Board of Public Utilities, which regulates in-state phone policies, calling for it to enforce “just and reasonable” phone costs for county jail inmates.
Meanwhile, after months in detention, Milton was eventually released from detention after ICE determined he was a low-priority deportation case. He is now at home in Massachusetts, finally reunited with his wife and son. He came home pale and thin—he rarely had free time outside and the jail served mostly potatoes for meals—and their son still suffers from the trauma of his dad being gone so long, but most days are peaceful. Monday through Saturday Milton works at a company that sells rugs in nearby Wesley, and every Sunday they go to church in Framingham. Sometimes Milton plays soccer with his friends on the weekends.
“We’re just grateful he’s out now,” said Arali, who still lives with fear that the immigration court could eventually decide to deport her husband. “We’re just fighting for another opportunity to stay.”