Illegal Immigrants, Mental Illness and Due Process

By Zack Buck
In Uncategorized
February 20, 2012
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zack-buck_4Starting in 2010, states began addressing illegal immigration by rewriting their laws on the books.  Over the past two years, two states – Alabama and Arizona – have passed strict anti-immigration laws, and both states have had their laws challenged in court with split results.  Just last week, the Kansas legislature’s committee on House Federal and State Affairs reviewed new bills which would require police officers to verify citizenship and would criminalize the harboring of illegal immigrants.  Mississippi, which estimates it has 90,000 illegal immigrants living within its borders, has also discussed passing an anti-immigration bill which would force police officers to detain those who fail to produce identification.

With more illegal immigrants becoming ensnared in the growing detainment and deportation framework nationwide, the question of how they should be treated, once detained, is unavoidable.  How their mental health conditions affect their due process rights is one of the issues near the top of this list.

Four decades ago, the United States Supreme Court held that an incompetent criminal defendant could not be held by the state indefinitely while the state waited for him to become competent to stand trial.  Instead, the court held, the detention must only be held for a “reasonable period of time necessary to determine whether there is a substantial probability that he will attain that capacity in the foreseeable future.”  Jackson v. Indiana, 406 U.S. 715, 738 (1972).  The court added that if the individual’s competence is unlikely to be restored, then the state must civilly commit the individual or release the defendant.  Id.

However, today, contrary to the spirit of Jackson, those subject to removal proceedings who are declared incompetent to proceed are left in a lurch.  Many represent themselves during the proceedings – according to the Department of Justice, about 60 percent.  Further, the hearings are often complicated by language barriers.  Without counsel and unable to understand the proceedings, the result:  indefinite detention, or (arguably) worse, immediate deportation.

The lack of guidance – and dearth of procedural protections in this area – has even left judges seemingly frustrated.  Immigration judge Renee L. Renner, in dismissing a removal proceeding against Ever Martinez Rivas, wrote that “[t]he Attorney General has provided little guidance regarding steps to take to protect the rights and privileges of the alien.”  Likewise, in her decision, U.S. District Court Judge Dolly Gee noted “the absence of any systemic guidelines setting forth what is a ‘reasonable accommodation’ for unrepresented mentally incompetent aliens.”  See Franco-Gonzales v. Holder, — F.Supp.2d —-, 2011 WL 5966667, at *12 (C.D. Cal. May 4, 2011).

But help could be on the way.  Recently, purported class action lawsuits were filed by the ACLU, Public Counsel Law Center, and others, seeking representation for severely mentally disordered detainees.  Although many of the court documents remain sealed, in a May decision, Judge Gee went on to order that mentally incompetent detainees must receive a custody hearing – in which the court would review the appropriateness of the detainee’s current custody – and must be given the services of a qualified representative (an attorney, law student or law graduate, or “accredited representative”).  Id. at *11.  Subsequently, in late November 2011, Judge Gee granted class certification to the detainees in the lawsuit (individuals with severe mental disorders currently detained in California, Washington, and Arizona).  Franco-Gonzales v. Holder, No. CV 10-02211 (Order Re:  Plaintiffs’ Motion for Class Certification) (Dkt. 348) (Nov. 21, 2011).  Last week, the proceedings were stayed so that the parties could pursue a potential settlement.  Id. (Order Staying Proceedings) (Dkt. 372) (Feb. 13, 2012).

The lawsuit seems to be a vital first step in building a more equitable system for incompetent detainees.  And while litigation continues, the cases serve as a reminder to Americans to seek not only clear, enforceable guidelines governing removal and/or paths to citizenship, but also fair and clear procedures that govern deportation hearings themselves – especially for those who often are faced not only with language and cultural differences, but also the formidable challenge of severe mental disorder.

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