Appointed Counsel and Bond Hearings for the Mentally Disabled
By Debbie Smith
Jose, an unrepresented noncitizen who did not learn to speak until he was six or seven years old, does not know his own birthday or age, has trouble recognizing numbers and counting, and cannot tell time, spent four and a half yearsin immigration detention after his immigration case was closed. CLINIC has long advocated for the right of immigrants like Jose to appointed counsel, especially in cases involving unaccompanied children, asylum seekers, and other vulnerable populations. On April 22, 2013, the government issued instructions to be implemented nationally to identify detained mentally incompetent noncitizens and appoint counsel for such individuals. The ICE and EOIR memos preceded by one day the April 23, 2013 federal district court order in Franco-Gonzalez v. Holder, 10 CV 02211 DMG (C.D. CA August 2, 2010), a permanent injunctionthat required the government to appoint counsel and provide bond hearings for detained seriously mentally ill noncitizens in Arizona, California and Washington. The new ICE and EOIR policies, while encouraging, are only a first step towards ensuring that at-risk noncitizens receive legal representation in immigration proceedings.
The April 22, 2013 ICE memo directs the establishment of procedures to ensure that mentally incompetent noncitizens in ICE detention are identified and that information about these individuals is provided to the immigration court. By sharing this information, the immigration judges hearing cases involving seriously mentally ill respondents will be able to rule on their competency and invoke the new EOIR procedures for appointment of counsel. The ICE memo specifies that all immigration detention facilities must have the following procedures in place by December 31, 2013.
Identification and Assessment Procedures: As of April 22, 2013, all immigration detention facilities that are staffed by ICE Health Service Corps are required to develop procedures to screen every immigration detainee when he or she enters the detention center. Detainees also will receive a more thorough medical and mental health assessment within 14 days of entering the detention facility. In the case of private detention centers where ICE holds detainees, DHS staff is required to begin work immediately with the detention facilities' medical staff to develop procedures to identify detainees with serious mental conditions. The required procedures include creating a national telephone hotline for detainees and family members to report and provide information about those detained. Once a detained individual is identified, ICE will request that either a qualified mental health provider complete a mental health review report or the facility provide the detainee's medical records to ICE for review.
Information-Sharing: DHS staff must also immediately develop procedures to transmit all documents related to the mental competency of an unrepresented detained individual to the ICE attorney (Office of Chief Counsel - OCC) in order for OCC to inform the immigration court of the individual's mental incompetency.
The EOIR April 22, 2013 memo requires Immigration Judges to implement several procedures to provide the following protections for mentally incompetent individuals.
Competency Hearings: Immigration Judges must conduct competency hearings when medical records or other evidence reflects that the individual appearing in immigration court may have a serious mental disorder or condition causing the individual to be unable to represent himself/herself in removal proceedings.
Mental Competency Examinations: Immigration Judges may order an independent mental competency examination and the production of a psychiatric or psychological report if unable to decide whether an individual is competent to represent himself or herself following a competency hearing. EOIR will be working with DHS to obtain these reports. Although the Immigration Judge will make the ultimate decision regarding competency, the independent evaluation will assist in this determination.
Appointment of Counsel: Immigration Judges may appoint counsel to represent an individual found to be mentally incompetent in removal and/or bond proceedings. EOIR will provide qualified legal counsel in such situations.
Steven Lang, Program Director, Office of Legal Access Programs at EOIR noted at the CLINIC Convening in May, 2013 that EOIR had signed contracts with several immigration legal services providers, including our CLINIC affiliate, Esperanza Immigrant Rights Project in Los Angeles, to provide legal representation to mentally incompetent detainees.
Bond Hearings: Unrepresented mentally incompetent detainees who have been held in detention for six months or longer will be provided a bond hearing.
Franco-Gonzalez Class Action Case
On April 23, 2013, federal district judge Dolly M. Gee granted a permanent injunction in the Franco-Gonzalez v. Holder class action lawsuit brought in 2010, a lawsuit that began with Mr. Franco-Gonzalez's petition for writ of habeas corpus. The ruling, covering three states – Arizona, California and Washington – requires immigration courts to provide legal representation for detained immigrants with mental disabilities "in all aspects of their immigration proceedings," and bond hearings for detained immigrants with mental disorders or disabilities who have been detained for more than six months. The government's April 22, 2013 policy expands the Franco-Gonzalez order nationwide. For the first time immigrants unable to afford legal representation who are mentally disabled will have an opportunity to present their cases with the assistance of counsel and request release under bond.