DOJ legal advice – Trusted Consult Insights

After abruptly declining to renew a contract with a nonprofit to provide court-ordered legal assistance to families separated at the border under the first Trump administration, the U.S. Department of Justice has proposed providing that service itself.

Experts worry that’s a conflict of interest that could put those families at risk of deportation and being separated again.

“[Families are] being asked to trust the government that harmed them to tell them how to move forward in the best way for them,” said Sara Van Hofwegen, managing director of legal access programs at Acacia Center for Justice, which has provided the services for the past year. “The government hasn’t shown them that they have their interests in mind.”

At a Wednesday hearing in federal court, the American Civil Liberties Union contended that the government is not prepared to provide legal advice to what could be as many as 8,000 individuals with complex cases and looming immigration deadlines.

The DOJ did not immediately respond to a request for comment.

The ACLU in 2018 filed a class-action lawsuit, Ms. L v. ICE, against the federal government for illegally separating migrant families at the U.S.-Mexico border, and reached a settlement agreement with the Biden administration in 2023. The agreement provides a pathway to a temporary immigration status called parole and asylum for families who were separated, along with certain other relatives, as well as legal assistance in navigating the byzantine immigration system.

Until now, that assistance, which includes legal advice and help with immigration applications, as well as referrals to pro bono attorneys, has been provided through Acacia, a nonprofit immigrant legal defense organization, which distributed federal funding to nine subcontractor organizations around the country, including two based in California. Earlier this month, the Department of Justice abruptly informed Acacia it would not renew that contract. The contract ended yesterday.

Last week, the ACLU asked U.S. District Court Judge Dana Sabraw of the Southern District of California, who approved the settlement agreement, to intervene.

On Friday, the DOJ specified in court filings that its Executive Office for Immigration Review, which is part of the DOJ, plans to provide legal services to formerly separated families directly “to maximize efficiency in the delivery of the program services.”

A crowd of people, including young children, are standing with some looking at a border patrol agent. One woman in the center raises her hand as she speaks to the agent.

David Super, a professor of constitutional and administrative law at Georgetown University Law Center, said that EOIR’s plan is likely illegal, violating families’ constitutional right to due process.

“It is about as extreme a conflict of interest as you can imagine for the party that is adjudicating matters to provide legal advice,” he said, adding that he knows of no precedent for EOIR’s proposal. “The government ordinarily is quite careful to not put itself in the position of providing this sort of advice in legal matters.

“The only analogy that I can think of is when police officers play good cop, bad cop in the interrogation room. But that’s not legal representation and they certainly are not allowed to present themselves as the attorney for the suspects they’re questioning.”

In court filings, EOIR has provided little detail about how it will deliver legal services to class members, noting that by May 15th it “will begin providing regularly scheduled group sessions and self-help workshops” to “equip them with the knowledge and information to successfully navigate their immigration proceedings.”

In interviews, legal service providers worried that group sessions would not provide the “ in-depth individualized consultations” required under the settlement agreement, and could make it difficult to serve families who speak different languages.

EOIR said in a court document filed yesterday that it will refer Ms. L class members to private pro bono attorneys who can provide individualized advice. Lee Gelernt, lead counsel for the ACLU in the case, contended during the hearing that this is unrealistic.

“We’re talking about thousands of cases,” Gelernt told the judge. “It takes a lot of work to get a firm to take one [pro bono] case.”

The settlement agreement required that the government “ensure that the Program is adequately resourced and funded to provide services for all unrepresented Ms. L. Settlement Class members, with the ability to increase funding to meet projected needs.”

Acacia has pointed out that, even under its existing contract, the government only supplied enough funding to provide legal services for about 12% of those who qualify.

The organization maintains a waitlist with the names and contact information of class members who are eligible for legal services under the settlement agreement, but have not yet received it. Van Hofwegen said that EOIR, communicating for the first time with Acacia, asked for a copy of the waitlist on Tuesday.

Van Hofwegen said subcontracted providers have already told families they’ve been advising that services are no longer available starting May 1.

“There were people who were scheduled for appointments next week to finish their parole applications or to help them get ready for court hearings that are coming up,” she said. “Those appointments have been canceled.”

A young girl holds a sign that reads "Keep families together!" Other signs are partially visible in a crowd of people. Three people facing the camera are out of focus in the foreground.

Immigration Center for Women and Children, one of Acacia’s subcontractors, has said it cannot abandon the cases of about 10 families who face immediate court deadlines and will continue to provide them legal services on its own dime, but they’re not taking on new participants. “As of 5-1, we’re operating without any funding,” said ICWC’s directing attorney, Danielle Fritz.

Among Van Hofwegen’s concerns is that EOIR, which has already suffered staffing cuts, may not have the capacity to handle the difficult cases presented by separated families. “These are people who have been through a lot, who have really complicated immigration histories, really complicated options of how to move forward,” she said.

Further, Fritz of ICWC worried that if services are provided directly by the EOIR from now on, program participants may be reluctant to divulge sensitive information, as they normally would as part of a legal consultation.

“We always emphasize in our services that even though we’re funded by the government and we have certain reporting requirements, we don’t reveal the content of our appointments or what we’re advising them,” she said. “There are going to be questions, of course, lack of trust, people may be unwilling to participate.”

Super, the Georgetown law professor, said that’s a reasonable fear, given that the government is essentially these families’ opposition in court, as well as the adjudicator of their cases.

“There certainly is a risk that this is going to be used to trick people into sharing information that might seem to weaken their case, when they have no representation to clarify it,” he said, citing the government’s recent use of allegedly gang-related evidence like tattoos to justify deportations.

“This administration is already taking information out of context,” he continued. “Putting them in a position to purport to provide legal services for immigrants facing deportation or incarceration opens the door wide for them [to get] more information they can distort.”

But at the hearing yesterday, Sabraw did not address the conflict-of-interest issue. Instead, he noted that the ACLU asked for relief from harms that haven’t happened yet, including the potential loss of legal status or deportation for separated family members.

The judge said that if class members miss important deadlines for parole or work authorization because they did not get legal services, the ACLU can ask the government, and then the court, for relief on a case-by-case basis.

Sabraw set a new hearing date for May 15, two weeks after the end of Acacia’s contract. He asked the ACLU to then bring any evidence that the government is failing to meet its obligations under the settlement agreement.

The California Newsroom is a collaboration of public media outlets throughout the state, with NPR as its national partner.

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