Departments of Justice and Homeland Security Announce New Safeguards for Immigrants in Removal Proceedings with Serious Mental Health Disorders

Wednesday, May 22, 2013 - 5:30pm

The Department of Justice (DOJ) and Department of Homeland Security (DHS) have announced new safeguards to protect the rights of immigrants with mental disabilities who are in detention and facing deportation. DHS is the agency in charge of prosecuting individuals in removal proceedings and also detains many mentally ill non-citizens. DOJ is in charge of the nation’s immigration judges, who will generally determine whether or not an individual will be removed or deported from the U.S.
The announcement by the two agencies came just one day before a federal judge in California, Judge Gee, ordered immigration courts in three states to provide legal representation to mentally ill detainees, after a class action lawsuit was filed by the American Civil Liberties Union in 2010. The announcement by DOJ and DHS would essentially make the California judge’s order apply nationwide.
The procedural protections announced include: conducting screenings for serious mental disorders when a detainee enters a detention facility; providing competency hearings and independent psychological or psychiatric evaluations of inmates; appointing qualified representatives to immigrant detainees who cannot afford to hire an attorney; and providing bond hearings to mentally incompetent individuals who have been detained for at least six months (regardless of whether those individuals would otherwise be subject to mandatory detention under the immigration laws).
This announcement represents the first time that the government has agreed to pay for legal representation for respondents before the immigration court. The Senate bill on comprehensive immigration reform also contains provisions providing government funds for representation not only for the mentally incompetent but also for minors in immigration court proceedings.
The danger of a system with no oversight and no protection for mentally ill immigrant detainees is illustrated by the story of one of the lead plaintiffs of the California lawsuit, Jose Antonio Franco Gonzalez. Mr. Franco suffers from severe mental retardation and his immigration court case was administratively closed because he was unable to understand the nature of his immigration court proceedings. However, after his case was closed, he was detained for more than five years and shuffled among various detention centers before he had a chance encounter with a lawyer for a non-profit organization. The ruling by Judge Gee and the announcement by DOJ/DHS represent positive steps forward in protecting the rights of the most vulnerable in our immigration system, such as Mr. Franco.