Judge orders DOJ to reinstate legal aid for mentally incompetent migrants

WASHINGTON (CN) — A federal judge on Monday ordered the Trump administration to revive a policy authorizing immigration judges to appoint legal counsel for immigrants deemed unable to represent themselves, finding the Justice Department’s sudden cancellation of the policy was unlawful.

U.S. District Judge Amir Ali ruled that Executive Office for Immigration Review Acting Director Sirce Owen’s decision to rescind the National Qualified Representative Program was arbitrary and capricious under the Administrative Procedure Act and taken without any consideration of its consequences.

“Defendants have not offered a persuasive reason why the acting director was free from the APA’s proscription of arbitrary and capricious decision,” the Joe Biden appointee wrote. “Accordingly, and given the irreparable harm caused when people found mentally incompetent are stripped of their representation and the threat to the public interest when immigration courts are denied any mechanism to appoint representation, the court finds plaintiffs are entitled to preliminary relief.”

Created in 2013, the National Qualified Representative Program connects migrants without documents with attorneys — referred to as qualified representatives — during their removal or bond proceedings before an immigration judge.

The program operates nationwide, except in Arizona, California and Washington, where a settlement in the 2013 case Franco-Gonzalez v. Holder requires the government to provide legal representation to noncitizens deemed mentally incompetent in those states.

In the other 47 states, the government had contracted with the Acacia Center for Justice — which then subcontracted with the plaintiff groups like American Gateways, the Amica Center for Immigrant Rights, the Galveston-Houston Immigrant Representation Project and more — to provide attorneys for appointment.

However, Ali noted that the injunction must be tailored — an effort to avoid the Supreme Court’s recent prohibition of universal injunctions in Casa v. Trump ; thus, his decision only vacates the decision to rescind the program and does not require the government to “forever carry out the program through identical means.”

While the government must reinstate the policy and authorize the appointment of counsel for detained immigrants at their bond and removal hearings, Ali wrote that the government can choose how to carry out the policy.

Evan Benz, senior attorney at the Amica Center for Immigrant Rights, said in an emailed statement that Ali’s decision confirms the “common-sense notion” that the government must act reasonably, particularly when its actions affect fundamental rights.

“In this case, the government decided to stop providing lawyers to some of the most vulnerable people in our immigration system — those with severe mental and cognitive disabilities who are detained in ICE custody — for no other reason than ‘convenience,’” Benz said. “As the judge recognized, that is simply not acceptable.”

At a court hearing in June, Ivano Ventresca of Zuckerman Spaeder, representing the immigrant rights groups, argued that since the program’s termination, immigration judges had been unable to appoint any attorneys.

In one example, the Rocky Mountain Immigrant Advocacy Network said an immigration judge, who was apparently unaware of the program’s termination, ordered the appointment of counsel on April 29, only for no such representative to appear for that person.

Ventresca explained that before 2013, the government would not provide attorneys for detained migrants, and the sudden return to that policy has left attorneys actively engaged in court proceedings with an “untenable choice.” They must withdraw from their representation and see if immigration judges will allow them to, he said, or continue representing the migrants without payment.

Following the hearing, Ali ordered the government to provide a status report explaining whether migrants were receiving any legal representation since the program’s termination on April 25.

In a declaration filed June 4, Owen, the acting director, said she began reviewing the qualified representative policy in January before announcing in April that the program was “no longer in effect” nationwide, except in Arizona, California and Washington under the Franco decision.

In their response, the advocacy groups said Owen’s declaration confirmed that immigrants detained in the remaining 47 states were being denied the safeguards necessary to “ensure due process and fundamental fairness” and further suggested immigration judges would have been largely unable to conduct competency hearings outside the Franco states.

As part of his order, Ali ordered the government to provide notice of his order to all relevant agencies and immigration judges within 48 hours and file a status report by July 28 regarding its compliance.

Keren Zwick, director of litigation at the National Immigrant Justice Center, lauded Ali’s decision in an emailed statement Monday.

“We are relieved to see that the judge held that the government cannot strip this population of their right to a fair hearing without reasoning, justification, or any other plan in place to make sure these hearings are fair,” Zwick said.

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