Victory on Right to Appointed Counsel in Immigration Proceedings for People with Mental Disabilities

Thursday, December 23, 2010 7:48 PM  -  LINK TO PRESS RELEASE

Ahilan Arulanantham  writes:

Some good news just before the holidays.  Yesterday night a federal district court judge in the Central District of California ordered the government to appoint a "qualified representative" to represent two men in their immigration proceedings, including before the BIA, at bond hearings, and in any appeals.  Both men suffer from very serious mental illnesses.  One had won termination before an Immigration Judge (who had relied on a psychiatric evaluation that we had provided to the federal court in our case), while the other had been ordered removed in a very cursory hearing, notwithstanding his serious mental illness, where his deportation officer was designated to "assist" him in representing himself.  Both were pro se before the BIA.

I wanted to attach the decision, but unfortunately it contains some privileged medical information and it looks like we aren't going to work out the redactions for the public version for at least several more days because it requires government consent and court approval.  We'll send it along as soon as possible.

The decision arose in the context of a motion for a preliminary injunction to 1) appoint counsel for both men in all future immigration proceedings and 2) give them both bond hearings notwithstanding their criminal convictions, which subject them to 236(c).  The underlying case -- Franco Gonzalez v. Holder -- is a class action on behalf of immigration detainees with serious mental disabilities in Washington, California, and Arizona.  It seeks a system for determining which detainees are not competent to represent themselves, and then appointed counsel and bond hearings for all such detainees. 

The court first found there was jurisdiction notwithstanding 8 USC 1252(b)(9), 1252(a)(5), and 1252(g), and that exhaustion was unnecessary, in part because it would be futile. 

On the merits of the appointed counsel claim, the Court found that the Rehabilitation Act (the federal government equivalent of the ADA) requires that the government appoint a "qualified representative" for both men as a reasonable accommodation for their disabilities.  Such a representative need not be an attorney, but must meet the following five criteria:  they must be obligated to provide zealous representation, subject to santion by EOIR for ineffective assistance, free of any conflicts of interest, "have adequate knowledge and information to provide representation at least as competent as that provided by a detainee with ample time, motivation, and access to legal materials," and obligated to maintain client confidentiality.  The court found that one detainee's mother, who had appeared at some of his proceedings, did not meet these criteria, in part because she has no legal knowledge, no access to a computer, and does not read English. 

Having found for us on the Rehabilitation Act ground, the judge did not address our Due Process arguments for appointed counsel.

With respect to bond hearings, the judge found that neither man was subject to 236(c) because it was meant to authorize mandatory detention only for "expeditious" proceedings.  Because the two men had been detained for 8 months and 14 months respectively and because both men likely faced lengthy further proceedings, their proceedings have not been expeditious and therefore they are detained under 236(a).  She therefore ordered the government to provide them with bond hearings within 30 days, and to appoint counsel to represent them at those hearings as well.

Obviously this win is only a first step for several reasons -- it's only a PI on behalf of two people, it's only a district court decision, and the Court just orders the government to ensure appointed counsel, regardless of whether the services are provided pro bono or at Government expense.  Most important, we expect the government to appeal. 

Nonetheless we are very happy about it, and view it as an important step to a fairer system for people with mental disabilities in immigration detention.  I wanted to thank the amazing team of lawyers that has worked on this case:  Mike Steinberg at Sullivan & Cromwell and the team of excellent attorneys he leads, Talia Inlender and Judy London from Public Counsel in LA, Matt Adams and Riddhi Mukhopadhyay at NWIRP, Sarah Mehta and Judy Rabinovitz at the ACLU IRP, Sean Riordan and David Blair-Loy at ACLU of San Diego, Jim Preis at Mental Health Advocacy Services, and Jen Stark at the ACLU of SoCal, who has worked tirelessly on the case with me.  Believe it or not, each and every one of these attorneys has played a central role in at least one aspect of this complex case, from the factual development to the expedited discovery to the mountain of briefing we've done already. 

We will send the decision as soon as we can.  Happy holidays everyone.

PS -- I would be remiss in also failing to thank Lucas Guttentag, who came up with the idea that the representative must be at least as competent as a detainee with time, motivation, and access to legal materials.  At oral argument on the PI the judge was stuck on our assertion that she had to appoint an attorney, given that other detainees have no right to appointed counsel and you don't have to be an attorney to practice in immigration court.  We gave her Lucas's suggestion in a supplemental brief, and she adopted it in her decision.

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