Legal help for detainees

A U.S. Border Patrol detainee processing center in McAllen, Texas.
(John Moore / Getty Images)

On Monday, the Obama administration announced a new policy to provide legal help to mentally disabled immigrants awaiting deportation trials in federal detention centers. A day later, a federal judge in Los Angeles reached the same conclusion, ruling that the Department of Homeland Security is required to provide free legal assistance to immigrants in detention if they are not capable of representing themselves because of mental illness.

Both decisions are welcome and could help bring more fairness to the system. Currently, only criminal defendants are entitled to court-appointed lawyers; deportation trials are civil cases.


Yet the new policy will be meaningful only if all detention centers in the country provide adequate screenings that can identify immigrants who are mentally incompetent. And the Department of Homeland Security has an uneven track record when it comes to implementing such reforms because it operates only a fraction — 10 out of 250 — of the immigration jails scattered across the country. In fact, 60% of the 34,000 immigrants detained on any given day are housed in local jails or privately run facilities that contract with the U.S. government but that at times ignore the rules. Operators of many of those private detention centers and local jails have often resisted adopting even minimal reforms, arguing that they are too costly or too cumbersome.

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No doubt critics of the policy will argue that providing lawyers to immigrants, even those who are legal permanent residents, is too expensive. But so too is the current detention process. It costs an average of $122 a day to detain an immigrant. And those who are mentally disabled can sometimes languish in detention.

Consider the case of Jose Antonio Franco, a mentally disabled man who faced deportation because he threw a rock during a fight. An immigration judge suspended his case rather than allow him to represent himself. He spent nearly five years in a Southern California detention center, and was released only after civil rights groups took on his case.

The administration deserves praise for its promise to provide mentally incompetent immigrants with the due process they deserve. Now it needs to muster the strength to see that the promise is fulfilled. And while it’s at it, the administration should throw its support behind the Senate’s immigration reform bill, which would guarantee similar legal protections for children awaiting deportation trials.