Should People in Customs & Border Patrol Custody Have Legal Counsel? (H.R. 1573)

What is H.R. 1573?

(Updated August 29, 2021)

This bill, known as the Access to Counsel Act of 2021,  would require that access to legal counsel or another “interested party” be provided to specified persons during inspection upon their entry to the U.S. at ports of entry or deferred inspection sites. 

Covered individuals would include U.S. nationals; lawful permanent residents; non-citizens seeking admission as an immigrant with a valid unexpired immigrant visa; non-citizens seeking admission as a non-immigrant with a valid non-immigrant visa; a refugee; a returning asylee; or a non-citizen approved for parole with a valid advance parole document.

The Dept. of Homeland Security (DHS) would have to provide covered individuals with a meaningful opportunity to consult with counsel and an interested party within one hour after the beginning of the secondary inspection process and as necessary throughout the inspection process (including during deferred inspection); allow counsel and an interested party to advocate on behalf of the covered individual such as by providing the immigration officer with information, documentation, and other evidence in support of the individual; and accommodate a request by the covered individual for counsel or an interested party to appear in-person at the secondary or deferred inspection site.

Covered individuals could also consult with an “interested party” including a relative, their visa sponsor, or any person, organization, or entity with a bona fide connection to the individual.

Any effort by CBP to persuade someone to relinquish their legal status by executing an I-407 or Record of Abandonment of Lawful Permanent Resident Status would be invalidated if the person had been denied access to counsel.

Argument in favor

Everyone, regardless of legal status or ability to pay, should have access to legal counsel if they’re detained by Customs and Border Patrol (CBP). Ensuring access to both legal counsel and interested parties is one means of helping ensure that people in CBP custody have the best chance to defend their own interests and make their cases to the U.S. government.

Argument opposed

There’s nothing keeping people in CBP custody from retaining legal counsel, or preventing people with family members in CBP custody from retaining legal representation for their loved ones. This bill is unnecessary at best, and at worst adds a bureaucratic burden to the Dept. of Homeland Security’s operations at a time when it’s already struggling to address large numbers of migrants at the southern border and operational challenges during a pandemic.

Impact

Detainees in Customs and Border Patrol (CBP) custody; legal representation for CBP detainees; “interested parties” of those in CBP custody; and the Dept. of Homeland Security (DHS).

Cost of H.R. 1573

The Congressional Budget Office (CBO) estimates that this bill would cost $825 million over the five-year period from 2021-2026.

Additional Info

In-Depth: Sponsoring Rep. Pramila Jayapal (D-WA) reintroduced this legislation — which was the first bill she ever introduced after taking office in 2017 — from the 115th and 116th Congresses to ensure defendants’ access to counsel when detained by Customs and Border Patrol (CBP) at borders and ports-of-entry. Last Congress, Rep. Jayapal offered the following statement on this bill’s introduction:

“January 27, 2020 will mark the third anniversary of President Trump’s xenophobic and unconstitutional Muslim Ban. The recent accounts of Customs and Border Protection officers unjustly detaining Iranian Americans at the border crossing in Blaine, Washington, are a stark reminder that this Administration’s attacks on civil liberties are far from over. It is more critical than ever that we affirm the civil rights of individuals in detention and ensure that all who cross our borders are treated with dignity and respect. Our nation’s reliance on detention and deportation, both in ICE and CBP custody, is a shame. Denying access to an attorney on top of that is a gross violation of basic civil rights and civil liberties. The Access to Counsel Act makes sure we uphold principles of due process and fair treatment.”

After this bill passed the House in July 2020, Rep. Jayapal said:

“Since the day this president took office, his xenophobic administration has carelessly stripped basic civil rights and civil liberties away from individuals solely because of the color of their skin, their religion, the language they speak or their country of origin. I’m proud to see the House of Representatives pass my legislation to ensure that individuals with lawful status have the right to call a lawyer and receive assistance if they are detained by CBP. I’m grateful for those in Washington state who bravely came forward to share their stories about what happened to them at Sea-Tac and in Blaine as we worked to move this proposal through Congress.”

House Judiciary Committee Republicans opposed this bill when it was considered by the committee this Congress. In an April 16, 2021 minority views report, the Judiciary Republicans contended that this legislation “would significantly burden federal immigration agencies and do nothing to stop the Biden Border Crisis.” They called this bill’s right of access to counsel and an interested party “misguided,” as the bill doesn’t address the possibility that the interested party could be used to help further a crime (for example, to contact and communicate with a co-conspirator). Additionally, Judiciary Republicans argued that this bill would have “significant negative effects on CBP”:

“Giving individuals the right to access counsel during secondary inspection would have serious logistical and practical consequences for CBP’s ability to screen travelers and carry out its mission of facilitating lawful trade and travel quickly and efficiently… CBO officials have indicated that H.R. 1573 could increase the length of secondary inspections and drastically delay processing, which would have an upstream effect on primary inspection as well. CBO also notes that CBP does not have physical space in its ports to accommodate in-person attorney visits for everyone referred to secondary inspection. CBP will thus need to build out facilities to accommodate in-person attorney consultations and will have to dedicate countless additional manhours holding individuals in secondary inspection who are waiting for counsel or interested parties to show up at the port and spend time consulting. CBP will need to hire additional personnel at each port of entry, provide security and transportation for each individual seeking access to counsel, upgrade current space, and construct new space for necessary meetings. CBO estimates that H.R. 1573 will cost $825 million over the next five years… H.R. 1573 would only further strain CBP’s resources and complicate CBP’s ability to carry out its mission and protect our country.”

The Trump White House expressed opposition to this package and threatened to veto it over the inclusion of this bill and the NO BAN Act, while also chiding Democrats for adding prescription drug legislation to the bill that should’ve been considered separately. It wrote in a statement of administration policy:

“The Administration also opposes Title III of H.R. 2486, the Access to Legal Counsel Act of 2020, which would negatively affect trade and travel… Implementing this requirement would divert Government resources, including personnel, technology, and facilities, from their mission of facilitating lawful trade and travel, slowing processing times at our ports of entry.”

In the current session of Congress, this legislation has passed the House Judiciary Committee with the support of 49 Democratic House cosponsors. In the 116th Congress, it had 50 Democratic House cosponsors and passed the House as part of Rep. Alma Adams’ (D-NC) FUTURE Act. 

Leading immigration and civil rights groups, including OneAmerica, the Center for Gender & Refugee Studies, and the Immigration Equality Action Fund, supported this bill in the 116th Congress.

Of Note: Rep. Jayapal originally introduced this bill on February 13, 2017 in response to then-President Donald Trump’s travel ban. The ban unleashed chaos at airports across the U.S. as people from seven Muslim-majority countries were detained for hours without food in water, in some cases pressured to sign papers giving up their legal status, and then deported. In many cases, affected individuals weren’t given opportunities to see attorneys or even call anyone for legal guidance.

In early 2020, at least 200 people of Iranian descent were detained at the U.S.-Canada border in Blaine, Washington for up to 12 hours without access to counsel. These lengthy detentions occurred while CBP repeatedly denied that Iranian-Americans were being targeted for different treatment. A month after the incident, CBP Acting Commissioner Mark Morgan said border officials had gotten “a little overzealous” in their actions.

Media:

• Sponsoring Rep. Pramila Jayapal (D-WA) Press Release After House Passage (116th Congress)
  
• CBO Cost Estimate (117th Congress)
  
• House Judiciary Committee Report (117th Congress)
  
• Bill Text