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Federal Court Orders Legal Representation for Immigrant Detainees With Mental Disabilities

Public Counsel helped make history yesterday. In a landmark ruling, Federal District Judge Dolly M. Gee ordered the federal government to provide legal representation for immigrant detainees in California, Arizona and Washington who are unable to represent themselves in immigration court because of a serious mental disability.  This is a historic moment: it is the first time that a court has recognized a right to appointed legal representation for a group of people facing immigration proceedings.  Unlike in the criminal justice system, where defendants are provided court-appointed lawyers, there are no such safeguards in the immigration system.  As a result, over half of all people in immigration court - including 84% of those who are detained - face complex legal proceedings alone.  The court's ruling will help change that by providing legal representation for some of the most vulnerable immigrants - those with serious mental disabilities whom the government imprisons while their cases remain pending. As Judge Gee found, the appointment of a legal representative for such individuals "serves only to level the playing field by allowing them to meaningfully access the hearing process."

The government denied such a level playing field to José Antonio Franco-Gonzalez. José, now 33, has a cognitive disability; he did not learn to speak until he was six or seven years old, he does not know his own birthday or age, he has trouble recognizing numbers and counting, and he cannot tell time. He functions at the cognitive level of a child; by some measures, as young as two years old.

In April 2005, after serving a sentence in state criminal custody, José was transferred to immigration detention. A few months later, an immigration judge ordered the closure of his case, citing the finding by a government psychiatrist that José lacked even the most basic understanding of his immigration proceedings. Despite the fact that there were no open removal proceedings against him, José remained incarcerated for another four and a half years. Because he did not have an attorney, José never stepped foot into a courtroom during that time. Public Counsel attorney Talia Inlender eventually discovered José languishing in immigration detention and began the fight for his release. Public Counsel, along with the ACLU, filed a habeas petition in federal court and José was released from custody in March 2010.

Like José, hundreds of other immigrant detainees spend months, sometimes years, in detention without legal representation, even though they are not able to defend themselves or even understand the proceedings against them. About 34,000 individuals are put in immigration detention daily, and according to government estimates, 1,000 of those individuals have mental disabilities. Yet it took three years of hard-fought litigation by Public Counsel, the ACLU, Northwest Immigrants' Rights Project, Mental Health Advocacy Services, and Sullivan & Cromwell LLP to get to this historic ruling, because the government maintained that there was nothing wrong with an immigration system that left people like José to defend themselves against trained government attorneys in their removal proceedings, despite their serious mental disabilities.

Judge Gee's ruling also requires that all immigrant detainees in California, Arizona and Washington with serious mental disabilities who have been detained for more than six months must be provided with a bond hearing where the government must justify continued detention. Hundreds of immigrant detainees in these three states, many of whom are unnecessarily detained under so-called "mandatory" detention statutes, will finally have an opportunity to ask an immigration judge for their release.  If Judge Gee's ruling had been in place at the time of José's detention, he would never have languished for years without a chance to see a judge.

The court's order is a huge step in ensuring basic fairness for some of the most vulnerable in our immigration system. Recently, in response to the imminent issuance of the court's injunction, the government announced that it will change its policies nationwide to provide procedural safeguards to immigrant detainees with serious mental disabilities. While it is a shame that it took a federal lawsuit before the government took any action to protect this vulnerable population, we hope that today's victory helps spur the government to commit to implementing systemic changes that protect people like José.