On April 23, 2013, a federal district judge ordered in the case of Franco-Gonzalez v. Holder, a class action lawsuit, the U.S. Immigration and Customs Enforcement, the Attorney General, and the Executive Office of Immigration Review to provide legal representation to immigrant detainees with mental disabilities who are facing deportation and who are unable to adequately represent themselves in immigration hearings. Franco-Gonzalez v. Holder, No. CV 10-02211 DMG, slip op. (C.D. Cal. April 23, 2013) (Gee, J.).
The ruling is the first of its kind for immigrant detainees who are mentally ill and who often languish in detention facilities for years without legal representation. The case applies only to certain detainees who reside in Arizona, California and Washington and comes as a result of a lawsuit filed by José Antonio Franco-Gonzalez, a Mexican immigrant with a cognitive disability who was detained in federal immigration facilities for nearly five years without a hearing or a lawyer
In the court’s ruling, Judge Dolly M. Gee determined that for this type of immigrants who suffer mental illness, appointed counsel “is the only means by which they may” defend themselves. Moreover, the court criticized the government for not having any safeguards to protect this most vulnerable population: “In this case . . . the very basis of Plaintiffs’ claim is the absence of meaningful procedures to safeguard” detainees with mental disabilities. As a result, the Court ordered that these detainees with serious mental disabilities be provided with qualified representatives at government expense and a bond hearing to avoid prolonged detention.
The ruling provides that immigrant detainees with mental disabilities finally get their day in court with representation that will ensure their due process rights are protected. The lawsuit was brought by the ACLU of Southern California and the ACLU Immigrants’ Rights Project.
The decision is a milestone but does it go far enough? My answer: No.
Problem: A relatively small but identifiable portion of society, our mentally ill immigrants, are needlessly suffering from the inability of immigration judges to order alternative detention solutions or court-ordered mental health counseling.
In the early 1970s, there was a shift in public policy regarding the mentally ill that consisted mainly of reducing public services. Politicians did not want to create a “welfare state”. L.L. Bachrach, Deinstitutionalization: An Analytical Review and Sociological Perspective (1976). As a result of this shift in policy, there was systematic mass closing of residential psychiatric hospitals nationwide treating the mentally ill. The process known as deinstitutionalization aimed at mainstreaming mentally ill patients back into the public. Id. Included in this population of the mentally ill were undocumented immigrants. Id. The unintended consequence of this deinstitutionalization was the shift in care of the severely mentally ill from the mental health community to the emergency services and corrections communities. It resulted in thousands of severely mentally ill persons being sent into the public, most often without psychiatric care and follow-up that they would need to function in society. Without resources available to them, many of the mentally ill became homeless or involved in otherwise preventable criminal activity. Id.
One such individual is a client I am defending in removal proceedings. Mr. Alvarez is a sweet and gentle 47-year-old who as a young child exhibited mentally illness and severe epileptic attacks. Mr. Alvarez may be 47 in physical age but he thinks, acts and speaks as someone with the acuity of a six-year-old.
His parents came to this country many years ago and brought him to the United States to get treatment when he was 6-years-old. At the time, Mr. Alvarez had no status. Eventually, his parents and the rest of his family became lawful permanent residents. Unfortunately someone had told his mother and father that because Mr. Alvarez was mentally ill and “stupid,” they could not petition for him. As a result, Mr. Alvarez was left without any status.
In 1985, his parents put Mr. Alvarez in a hospital hoping and praying that the doctors could treat him. He was there for 72 hours and then the hospital discharged him because he was illegal and because there was no room at the hospital. Mr. Alvarez didn’t get any help.
A few years later, in 1992, he was arrested for lewd and lascivious acts upon a child under 14 years of age. Mr. Alvarez’s mental illness was never discovered by his public defender. It was never raised as a defense to the criminal charges. Why? I have no idea. Mr. Alvarez has no recollection of the day he got arrested, but his family said that “he would not do something like that.” His family believes that he was playing like a gentle child but that someone mistook his innocent mindset as an abusive physical contact. Mr. Alvarez pleaded guilty to the lewd and lascivious charge without understanding what he did or what it meant. He did 4 years in jail during which he received no mental health treatment.
In the 1990s, an illegal immigrant who was in the criminal system did not necessarily go straight to immigration authorities so Mr. Alvarez was not placed in deportation proceedings after his conviction. It was not until 2012 when Mr. Alvarez was convicted of failing to register as a sex offender that he came to the attention of immigration authorities. Mr. Alavarez failed to register because he had suffered a severe epileptic attack and was at a public hospital trying to get medical help. It did not matter because again his public defender didn’t recognize the mental health issues. Like before, Mr. Alvarez pleaded guilty to this offense and was sentenced to probation, only this time he was turned over to ICE.
I’ve met Mr. Alvarez and, as a prior prosecutor, I’m convinced that he is innocent. That is irrelevant, however, because immigration judges cannot look behind the conviction documents. Mr. Alvarez was detained for a very, very long time because ICE believed that his conviction in 1992 subjected him to mandatory detention. It did not, but that’s of no consequence now.
His family, desperate to get their son, their brother, out of detention, borrowed money to hire a lawyer to get him out of detention because Mr. Alvarez’s epileptic attacks were worsening. They are humble folks that see legal services as a luxury. Somehow they found me and I was able to convince the immigration judge that his 1992 conviction did not make him “mandatorily” detainable. The immigration judge agreed.
Had Mr. Alvarez not had an attorney to point out the legal requirements of when and how mandatory detention works, he would still be sitting in detention. But, having a lawyer to represent a mentally ill immigrant is not enough. Yet, having a lawyer at counsel table is still not sufficient to safeguard an immigrants’ due process. Without having legal status, most mentally ill immigrants have few resources from which they can seek medical assistance. After I obtained Mr. Alvarez’s release from detention, he has gone twice to mental health hospitals and twice they have refused to treat Mr. Alvarez because he has no legal status.
If comprehensive immigration reform happens, it would be important to give immigration judges the power to order mental health counseling or the power to order a mentally ill alien to be enrolled in an out-patient program so that people like Mr. Alvarez get the treatment they need and that a just society should provide.
Patty Corrales is a Former Senior Attorney with ICE. She worked at ICE for over 17 years. She is now in private practice and has dedicated her practice to criminal defense and immigration defense.