Many of the immigrants detained at Northwest State Correctional Facility in Swanton have the same question for the volunteer attorneys who’ve visited to provide in-person counsel.
“One of the questions that we got asked the most often was, ‘Where am I? What state am I in?’” said Emma Matters, an immigration attorney with the Vermont Asylum Assistance Project. “Even that very, very basic information that you assume someone has access to, people go without if they don’t have someone coming in and conversing with them in their language and explaining to them just what is going on.”
Matters says the experience underscores the disadvantage that immigrants who don’t speak English face when they’re detained in facilities that can’t communicate in a language they understand. And she says prohibitions on language-access devices at the Vermont Department of Corrections have in some cases prevented attorneys from providing the basic legal services that immigrants need to fight their cases.
“Without someone who’s able to provide them with that information, let them know what’s being put in front of them or what might be put in front of them, people end up being vulnerable to life-changing harm,” Matters said.
The number of people arrested and detained by Immigration and Customs Enforcement is up tenfold in New England since the start of President Donald Trump’s second term in office. Some of them have ended up in two prisons operated by the Department of Corrections, which contracts with the Department of Homeland Security to provide temporary lodging for immigrant detainees.
Local immigration attorneys almost universally support the state’s decision to lodge detained immigrants, at Northwest, for men, and Chittenden Regional Correctional Facility, in South Burlington, for women.
“We need these beds,” Jill Martin Diaz, executive director of the Vermont Asylum Assistance Project, told lawmakers in January. “Because there is absolutely no substitute to me getting in my car and driving up the road ... flashing my attorney credential and being able to meet with my client face-to-face.”
But a Department of Corrections policy that prohibits attorneys from using their own translation services in state facilities has hindered their ability to help, attorneys say.
“DOC policies and deficiencies are preventing low bono and volunteer attorneys from being able to speak with their clients who are in detention and is thereby depriving them of access to their due process rights,” said Hillary Rich, a staff attorney at the Vermont ACLU who spent two years practicing asylum law in Laredo and San Antonio, Texas.
No outside devices
Matters said the Vermont Asylum Assistance Project has been making regular trips to the state prisons since last year to meet with newly detained immigrants. She said the organization explains their rights, advises them of potential claims, and provides referrals to lawyers who might provide representation.
VAAP attorneys had previously been allowed to bring in their own “tools of interpretation,” including laptops or cell phones on which they could call out to access live translation services.
“It’s very hard to know in advance what type of language capabilities we’re going to need on that day,” Matter said. “We see people detained who speak a wide variety of languages, including rare and Indigenous languages.”
But in October, officials at VAAP say, the department told them they could no longer bring those devices into the facilities. The single DOC landline that attorneys now have access to drops calls frequently, Matters said. And she said it bottlenecks a process that previously allowed multiple attorneys to work several cases simultaneously. The process became so inefficient that VAAP has cut the number of trips it makes to state prisons in half.
“The numerical reality of that is that … between tens and hundreds of people who would otherwise have access to legal screenings, basic know your rights, and case advice and potential referral out to legal services, go without,” she said.
Corrections Commissioner Jon Murad said in an interview Wednesday that the department has a longstanding policy that prohibits people from bringing “anything with cellular capacity” into a state prison.
“What if it’s misplaced? What if it disappears? What if it is then transferred over to the direct control of people in our custody?” said Murad, who joined the department in August. “That is a risk, and one that we don’t want to countenance.”
VAAP’s ability to bring in its own devices up until October, according to Murad, might have been related to a lapse in policy enforcement.
'Set up to fail'
The commissioner said the department has since taken steps to lower the language barrier, by providing attorneys with DOC-owned devices that have translation capabilities.
Murad said DOC had six such devices at Northwest and three at Chittenden Regional. Matters said VAAP attorneys who visited DOC facilities as recently as March 6 have not been told about the new devices.
“That was brand new information to me and to all of my colleagues,” Matters said Wednesday.
The DOC devices don’t have cellular capacity – a shortcoming Matters said would likely render them useless to VAAP attorneys.
“We require live interpretation services. We need to be speaking to a human,” Matters said.
Murad said the department is working on a plan that would give lawyers the ability to make calls to translation services on DOC-owned devices, though he said he doesn’t have a timeline for that yet. He said the department has undertaken other efforts to facilitate access to counsel for detained immigrants – it sends VAAP a daily list of names of new arrivals at facilities, so the organization is aware of individuals who might need assistance.
Rich, of the ACLU, said a DOC policy she obtained in February through a public records request shows that immigrant detainees are responsible for coordinating their own remote hearings.
“Which for a limited English proficient detainee who does not have counsel and doesn’t even know what state they’re in is going to prove impossible,” she said. “These folks are being set up to fail in their immigration court systems by the deficiencies in DOC procedures.”
Rich said Northwest and Chittenden Regional are subject to public accommodations laws that include language-access requirements. She said the Department of Corrections might be violating those laws.
“Lawsuits are just one tool in our toolbox,” Rich said, “but of course it is a tool we are very comfortable wielding when necessary.”
