Mentally disabled facing deportation win right to free legal help

Immigrants who are too mentally disabled to represent themselves in deportation proceedings are entitled to free legal assistance, a federal judge has ruled.

Until now, some defendants languished in detention centers for years after judges declared them incompetent but could not assign them an attorney. The ruling, issued Tuesday in Los Angeles by U.S. District Judge Dolly M. Gee, applies only to immigrants in custody in Arizona, California and Washington, but a new federal policy will extend the judge’s decision to detainees nationwide.

Immigrants fighting deportation do not have access to public defenders, as criminal defendants do. They must either hire private attorneys or represent themselves.

Gee based her decision on federal disability law, which requires “reasonable accommodations.” The only way for mentally disabled defendants to exercise their rights, which include presenting evidence and cross-examining witnesses, is through a representative, she wrote.


The legal representative will not necessarily be an attorney. Mentally disabled defendants may also be represented by law students and others with training in immigration law, according to the judge’s ruling and the policy from the departments of Justice and Homeland Security.

The plaintiffs in the lawsuit, which was brought by the American Civil Liberties Union, Public Counsel Law Center and others, have a range of disorders, including mental retardation, schizophrenia, psychosis and depression.

Gee also ruled that immigration detainees with serious mental illnesses are entitled to a bond hearing after 180 days. The new federal policy contains a similar requirement.

Plaintiffs’ attorneys hailed the ruling as historic. It is the first time any class of immigration detainees has been awarded the right to counsel, said Carmen G. Iguina, an ACLU staff attorney.

“They won’t be lost in the system, forced to suffer, forced to represent themselves when they can’t do so,” Iguina said. “It takes the most vulnerable group and provides them with procedural protections, which is huge.”

One plaintiff, Jose Antonio Franco-Gonzalez, has an IQ between 35 and 55, according to his attorneys. He is 32 years old but can’t count past 10.

An immigration judge declared Franco-Gonzalez incompetent to represent himself. Unable to appoint an attorney for him, the judge closed the proceedings. But instead of being released, Franco-Gonzalez was sent back to a detention center, where he stayed for almost five years.

“We know these protections will help judges be more efficient and effective in carrying out their duties,” said Lauren Alder Reid, an attorney for the Executive Office for Immigration Review, which administers the federal immigration courts.

Franco-Gonzalez, who came to the U.S. from Mexico when he was 18, doesn’t know how to use a telephone and had to rely on other inmates to call home, said his mother, Maria Franco. He applied for a green card through his U.S. citizen brother in 2001 and is still waiting in line.

In an interview Thursday, Franco-Gonzalez said of his time in federal custody: “I was waiting to get out.”

Asked his age, Franco-Gonzalez struggled to say “treinta” — 30 in Spanish — before settling on 11.

“If the court’s decision had been in place when Jose was found incompetent, he would have been afforded legal representation and a bond hearing, and so you wouldn’t have had him sitting in a jail cell for five years with his case in limbo,” said Talia Inlender, a staff attorney with Public Counsel who is representing Franco-Gonzalez in his immigration case.


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