Detained Aliens Can Sue U.S. on Its Own Dime

     LOS ANGELES (CN) – The U.S. government must give legal representation to a class of immigrant detainees with serious mental disabilities, a federal judge ruled.
     A class of immigrants with serious mental disabilities sued the government in 2011, claiming they were often left to rot in detention facilities for years without counsel.
     Class representatives the American Civil Liberties Union of Southern California touted the “historic” and “landmark” decision in a blog post, calling it the first time a court has ever recognized immigrants’ rights to legal counsel in immigration proceedings.
     In the Wednesday order, U.S. District Judge Dolly Gee said that U.S. Immigration and Customs Enforcement, the attorney general and the Executive Office of Immigration Review have an obligation under the Rehabilitation Act to provide the mentally disabled immigrant detainees in California, Arizona and Washington with “qualified representatives.”
     The ACLU said that the government plans to introduce nationwide safeguards to ensure that immigrants with mental disabilities are now represented in detention and removal proceedings.
     Uncle Sam must also explain at bond hearings why immigrants with serious mental disabilities have been detained beyond six months.
     Gee rejected the government’s contention that providing counsel would place an “undue financial burden,” and result in a “fundamental alteration of the immigration court system.”
     Law students and law graduates who had not yet been admitted to the bar could represent the class, according to the ruling. The judge also found that a requirement of representation was not inimical to the Immigration and Nationality Act (INA).
     “Defendants can hardly argue that it is audacious to require a qualified representative for mentally incompetent individuals in immigration proceedings when the INA itself has pronounced that some form of procedural safeguards are required for those who are mentally incompetent,” Gee wrote. “By the same token, the appointment of a qualified representative for sub-class one members serves only to level the playing field by allowing them to meaningfully access the hearing process.”
     The ruling defines sub-class one members as individuals “who have a serious mental disorder or defect that renders them incompetent to represent themselves in detention or removal proceedings.”
     At bond hearings, the government must show, by “clear and convincing evidence,” that detainees were either a flight risk, or too dangerous to be released, Gee said.
     Denying the class’s motion for summary judgment on all remaining issues, the court also rejected the class’s motion for a preliminary injunction as moot.
     The ACLU noted that more than half of defendants in immigration courts, “including 84 percent of detained individuals” – have to argue their cases without representation. Of the 34,000 immigrants detained every day, 1,000 are mentally disabled, the civil rights group said, citing government statistics.
     Lead plaintiff Jose Antonio Franco-Gonzalez, 33, functions “at the cognitive level of a child,” the ACLU said.
     “In April 2005, after serving a sentence in state criminal custody, José was transferred to immigration detention,” it added. “A few months later, an immigration judge ordered the closure of his case, citing the finding by a government psychiatrist that Jose lacked even the most basic understanding of his immigration proceedings.
     “Despite the fact that there were no open removal proceedings against him, Jose remained incarcerated for another four and a half years. Because he didn’t have an attorney, Jose never stepped foot into a courtroom during that time. Finally, after an attorney learned of Jose’s case and filed a habeas petition in federal court seeking his release, Jose was released from custody in March 2010.”
     The ACLU called the ruling a “huge step.”
     “While it is a shame that it took a federal lawsuit and protracted litigation before the government took any action to protect this vulnerable population, it is necessary that, going forward, the federal government commit to implementing systemic policy changes that protect individuals like Jose,” it said. “As the country engages in a debate over comprehensive immigration reform, it is important to remember that principles of due process, fairness, and humanity must govern our immigration enforcement policies.”

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