News Clips

December 21, 2011

National Law Journal: Judge certifies class of immigration detainees suffering mental problems

National Law Journal | Amanda Bronstad

A federal judge in California has certified a class of hundreds of undocumented immigrant detainees with mental disabilities who have alleged that they were unable to obtain legal counsel in violation of their due process rights.

U.S. District Judge Dolly Gee in Los Angeles certified the group in a ruling filed under seal on Nov. 21. The ruling applies to cases in Arizona, California and Washington — where, according to the suit, up to 25% of the nation's immigrant detainees are being held.

Gee unsealed the ruling on Dec. 19.

"Defendants present no evidence that there is any procedure or mechanism in place for either identifying or evaluating a detainee's competency to represent himself or herself in immigration proceedings," she wrote.

Gee went on to conclude that the problems were systemic, given the "dearth of guidance available to immigration judges in proceedings pertaining to unrepresented mentally incompetent aliens."

Michael Steinberg, a partner in the Los Angeles office of New York's Sullivan & Cromwell, who is working with Public Counsel and the American Civil Liberties Union of Southern California on the case, said the ruling will help his team locate previously unidentified undocumented immigrant detainees who could be mentally incompetent and have no attorney.

"We'd like competency exams for those where we suspect they're not competent, and counsel in those cases where they're not competent and asked to defend themselves in these complicated proceedings," Steinberg said. "And anyone who is in the system for more than six months is given a bond hearing, and not just forgotten."

He said such individuals deserve an attorney, possibly through the federal public defender program. "We know the resources are taxed, but we think that the public defender system is a workable system to assist with this population," Steinberg said.

Neelam Ihsanullah, a trial attorney with the Justice Department's office of immigration litigation in Washington, did not return a call for comment.

The suit originally was filed on March 26, 2010, as a writ petition of habeus corpus on behalf of José Antonio Franco-Gonzales, a Mexican immigrant with moderate mental retardation. Franco-Gonzales was identified as incompetent in 2005 upon being detained by the U.S. Department of Homeland Security after pleading guilty to assault with a deadly weapon.

His removal proceedings were closed due to his incompetence, but he was allegedly held for more than four years without a hearing. On Feb. 14, 2011, lawyers at Public Counsel, now representing Franco-Gonzalez, who has since been released from custody, moved to certify a class of hundreds of undocumented immigrants who allege they were unable to get legal counsel while detained in violation of their due process rights under the Fifth Amendment, the Immigration and Nationality Act and other laws.

"Without counsel to guide them, these detained individuals are often simply left to create their own 'defense' in detention centers, awaiting their point in time (if such a day ever comes) when their mental facilities will be sufficiently clear to allow them to represent themselves and navigate through the complex and highly-technical field of immigration law," wrote Ahilan Arulanantham, an attorney at the ACLU of Southern California, in an amended complaint filed on Oct. 25.

The ruling certified a class of undocumented immigrants being held in detention and facing removal proceedings, who have been identified or are suspected of having "a serious mental disorder or defect that may render them incompetent to represent themselves" and who "presently lack counsel." There are two subclasses: Those who already have proved incompetent to represent themselves and have no attorney, and those who are suspected or declared incompetent but have been detained for more than six months.

Also working on the case are the ACLU of San Diego & Imperial Counties, the ACLU of Arizona, the Northwest Immigrant Rights Project and Mental Health Advocacy Services.