Rights groups warn of canceled legal counsel for mentally incompetent migrants

WASHINGTON (CN) — The Justice Department struggled on Monday to defend the Trump administration’s decision to cancel federal contracts with immigrant rights groups to provide legal representation for detained migrants unable to represent themselves.

U.S. District Judge Amir Ali ordered the Justice Department and the coalition to file a status report on Wednesday detailing whether migrants deemed mentally incompetent were receiving any legal representation since the program was terminated on April 25.

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 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 — who 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.

Ivano Ventresca, of Zuckerman Spaeder and representing the rights groups, argued Monday since the Executive Office for Immigration Review terminated the program, immigration judges have 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 prior to 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.

Ali scheduled Monday’s hearing to consider the rights groups’ motion for a preliminary injunction to set aside the program’s termination and for the Justice Department’s motion to dismiss the case.

Using a now-common position, the Justice Department argued that the case was ultimately a contract dispute and thus should be addressed by the Court of Federal Claims. There, the rights groups could only obtain monetary damages rather than injunctive relief.

Ali, a Joe Biden appointee, noted that the Justice Department did not provide a substantive administration record detailing the administration’s decision to cancel the current contracts with the rights groups.

He pressed Justice Department attorney Sarah Welch on her position that he should view the case as simply a contract dispute and that the rights groups should instead bring a class action like Franco-Gonzalez if they want an injunction.

Welch suggested that the government was developing a new form of the program that would still allow immigration judges to appoint qualified representatives, just without those attorneys being paid by the government.

She said the government had been doing more than was required by contracting with Acacia and it was within the Department of Homeland Security’s discretion to cancel that contract at will.

Welch argued that Ali should view the case like the Supreme Court did in April in Department of Education v. California, where the high court ruled 5-4 that the Trump administration could freeze millions in teacher training grants on an emergency appeal.

She explained that, because the justices found the recipients of the funds could still operate without them, the immigrant rights groups should be considered the same.

The immigrant rights groups sued in Washington on May 5, warning that without the program in place, immigration judges would have no mechanism to appoint counsel.

“The termination notice does not suggest that defendants will contract with or otherwise procure replacement counsel, to the extent such counsel even exists,” the coalition said in the lawsuit. “They have given no indication that they intend to continue meeting their obligations to provide counsel to immigrants deemed mentally incompetent.”

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