Migrants detained in California are quietly being moved out of state

Photo by SANDY HUFFAKER/AFP via Getty Images)

Dozens are relocated by ICE, cutting them off from their attorneys and, sometimes, their families.

By Kate Morrissey, Capital & Main

This story is produced by the award-winning journalism nonprofit Capital & Main and co-published here with permission.

San Diego immigration detention officials have been quietly transferring dozens of detainees out of state, cutting some off from their attorneys and likely delaying their efforts to win asylum in the U.S.

Some of the people transferred had their final trials coming up in just weeks, but now Immigration and Customs Enforcement is asking judges in San Diego to move those cases to the states where the detainees are now being held — a request that will likely cause lengthy delays in their cases and worsen the enormous immigration court backlog that the Biden administration cited last week as part of its justification to shut down most asylum processing at the southern border. Asylum cases can often drag on for years

“I’ve never seen ICE do this before, transferring people en masse,” said Linette Tobin, a San Diego immigration attorney. “It just blows my mind.”

Jamal Forbes, a 21-year-old man from Belize who has been relocated to Texas, has an asylum hearing scheduled in a few weeks. 

Forbes has family in Los Angeles who used to come visit him every two weeks while he was at the Otay Mesa Detention Center in San Diego. Those visits were essential over his last six months there for keeping his morale up while he waited, he said.

“It’s stressful. Just being locked up without doing a crime in America or nothing like that — some days I just want to pull out my hair. That’s how stressful it is, you know,” Forbes said in an interview with Capital & Main. “In Texas, I don’t have no connection to no one here.”

Forbes said he would go back to Belize if he could — just to get out of detention — but he fears his life would be in danger there.

It’s not yet clear whether the judge will move his case to Texas. In the meantime, his attorney, Kirsten Zittlau, is worried that having Forbes in Texas while his case goes forward in California will affect its outcome.

When asked about the transfers, an ICE spokesperson, who declined to be named, said that the agency follows a policy memorandum set in 2012 regarding transfers. 

“U.S. Immigration and Customs Enforcement (ICE) officials use a network of detention facilities for the intake of individuals detained by the agency,” the spokesperson said. “All noncitizen transfers and transfer determinations are nonpunitive and based on a thorough and systematic review of the most current information available.”

The agency did not give a specific reason for the mass transfers from San Diego.

According to the ICE policy memo, ICE officials are generally not supposed to transfer people who have attorneys of record in their cases. The memorandum makes exceptions for transfers necessary for a detainee’s health and safety or those due to overcrowding or a facility’s closure. If a transfer is necessary for a represented detainee, ICE officials are supposed to notify the lawyer on the case beforehand.

But ICE does not appear to be following that policy.

At least 51 people who have attorneys through San Diego County have been transferred since April, according to Michael Garcia, who runs the county’s free immigration legal defense program. Private attorneys have also had clients relocated without notice, so the total number of transferred people who had lawyers working on their cases is likely much higher.

For Garcia, the transfers present a particular problem because his program provides lawyers to people in immigration custody at Otay Mesa Detention Center near the border in San Diego County. If their cases are moved out of state or elsewhere in California, his attorneys can no longer represent their clients. All of the resources that the county has put into the case then feel like a waste of time and resources, Garcia said. But, the impact on the program’s clients is more profound.

“My clients are losing their representation,” Garcia said.

Many attorneys representing those that have been transferred are fighting to keep their clients’ cases at the Otay Mesa court but with mixed results, depending on the judge. 

Clients have ended up in detention facilities in Texas, Colorado, Louisiana, Arizona and Georgia. Courts in many of those states are notorious for turning down asylum requests, and most of the detention centers in those states are in rural areas with little access to local lawyers.

Ed Perez, a private attorney who contracts with San Diego County, said that 19 of his clients have been transferred so far. ICE didn’t notify him before any of his clients were relocated, he said.

Perez said an official at Otay Mesa told him in April that the facility was being converted into a transit hub rather than a long-term holding facility. The attorney said he assumed that meant that new arrivals to the detention center would stay for short periods of time before being transferred, but then his clients started to disappear. Concerned family members began to call him to ask where their loved ones had gone, he said.

“It’s a complete interference in the attorney-client relationship and interference in our ability to manage our case when we can’t see our client on short notice in person,” Perez said. “Could it be done, could we represent people that are in other states? Yeah, but it’s basically like doing it with one hand tied behind our back and blindfolded.”

One of his clients already had a final hearing before a judge at Otay Mesa. Because the hearing took more than the allotted time, it was scheduled to resume on a second day. But now that the detainee has been transferred to Louisiana, the fate of the case is unclear. Perez said he’s struggling to even communicate with his client before the upcoming hearing date.

“I don’t have a clear cut way of me reaching out,” Perez said.

Every attorney interviewed by Capital & Main said that since the transfers, it’s been difficult to get in touch with their clients or even the ICE officials responsible for their cases. Each detention center in the country has a different process or system for communication, and it’s not always clear how to set up a virtual visit with their clients.

Tobin, a San Diego attorney who contracts with the county, said that in one of the cases, she just needs to inform ICE that her client, who’s been moved to Colorado, is giving up because she can’t tolerate being in detention any longer and is willing to be deported. But, Tobin said, she hasn’t been able to reach anyone at ICE, dragging out the time the woman spends in custody.

“I’m trying to contact the ICE officials in Denver, but I don’t have contacts there,” Tobin said. “I’ve never spoken to anyone there. I can’t go in person. No one is returning my calls, answering the phone or responding to my emails.”

Another one of Tobin’s transferred clients, a woman from Colombia who was a victim of human trafficking, has her asylum trial coming up in a matter of weeks.

“To treat someone with no criminal conviction who has been the victim of trafficking and rape and attempts on her life in this way is just crazy,” Tobin said. “They go into a real panic about what’s going to happen, and at this point, I’m just saying to her, ‘I don’t know.’”

Attorney Zittlau has had two clients transferred so far, including Forbes, the asylum seeker from Belize. Her clients’ families are paying for her legal services, but she didn’t include expenses for traveling to the small town in Texas where they’re now being held. If she had, the families probably couldn’t have afforded to hire her, she said.

“It will end up becoming cost prohibitive to take detained cases,” Zittlau said.

Zittlau’s other transferred client, a man from Kenya named Abdirizak Elmi who was relocated to Texas, is supposed to submit evidence for his asylum case at an upcoming hearing. Normally, Zittlau would sit down with him at the detention center and make sure everything is in order. Now, she can’t do that.

“I’m just somebody who is just following the rules, being told to do this, keep on following,” Elmi said in an interview. “Emotionally, it’s actually tiresome and stressful. I’m afraid I might develop emotional problems from all of this.”

Elmi said he is worried how the transfer will affect his case. If he doesn’t win asylum, he said, he doesn’t know where he will go. He knows he can’t go back to Kenya.

“I still have hope because I’m a human being,” Elmi said. “I keep patience and hope.”

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