Wednesday, April 24, 2013

Mentally Disabled Immigrants in Removal Proceedings Must be Guaranteed Counsel

A federal district judge has ordered the U.S. Immigration and Customs Enforcement, the Attorney General, and the Executive Office of Immigration Review to provide legal representation to immigrant detainees with mental disabilities who are facing deportation and who are unable to adequately represent themselves in immigration hearings. The ruling in the class-action lawsuit is the first of its kind for immigrant detainees. For the full press release, click here.

The U.S. District Court for the Central District of California today issued an order granting judgment in favor of plaintiffs in the case, Franco-Gonzalez v. Holder, which applies to certain detainees in Arizona, California and Washington. The decision comes more than three years after a lawsuit was filed by José Antonio Franco-Gonzalez, a Mexican immigrant with a cognitive disability who was detained in federal immigration facilities for nearly five years without a hearing or a lawyer.

In 2010, Plaintiffs sought to expand the reach of the challenge to the government’s inadequate procedures by converting the lawsuit into a class action. In the Court’s ruling, Judge Dolly M. Gee determined that for this class, appointed counsel “is the only means by which they may” defend themselves. Moreover, the court criticized the government for not having any safeguards to protect this most vulnerable population. As a result, the court ordered that these detainees with serious mental disabilities be provided with qualified representatives at government expense and a bond hearing to avoid prolonged detention.

In addition to the Northwest Immigrant Rights Project, the ACLU, Public Counsel, Mental Health Advocacy Services and the law firm of Sullivan & Cromwell all represented the class of immigrants who benefit from the court’s ruling.

Franco-Gonzalez, now 33, was forced to represent himself even though a psychiatrist determined that he had no basic understanding of the immigration proceedings, and did not know how to defend himself. While judges regularly appoint legal counsel in the criminal court system, immigration courts and detention facilities have no safeguards to ensure representation of immigrants. About 34,000 immigrants are detained daily and government estimates indicate that well over 1,000 of them have mental disabilities of some kind. Prior to today’s ruling, none of these individuals were guaranteed legal representation even though they would have great difficulty trying to represent themselves in the complicated legal proceedings against them.

To see the district court order issued today, please click here.

To see the permanent injunction issued by the district court, click here.

For more information about Franco-Gonzalez v. Holder click here.

UPDATE (4/26):  Julia Preston of the N.Y. Times reports that "On Monday, federal immigration officials issued a new policy that would, in practice, expand the California ruling nationwide, making government-paid legal representation available to people with mental disabilities in immigration courts in every state. The release of that policy indicates that the Justice Department, which runs the immigration courts, broadly accepts the approach ordered by Judge Gee."

KJ

http://lawprofessors.typepad.com/immigration/2013/04/mentally-disabled-immigrants-in-removal-proceedings-must-be-guaranteed-counsel.html

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