The Departments of Justice (DOJ) and Homeland Security (DHS) issued a new nationwide policy for immigration detainees with serious mental disorders or conditions that preclude them from effectively representing themselves in immigration proceedings. Under the policy, individuals will be screened for serious mental disorders or conditions when they enter an immigration detention facility. Immigration judges will be able to order competency hearings and appoint lawyers, at government expense, for those who may have serious disorders. The immigration reform bill in the Senate, S.744, includes a provision for providing lawyers for unaccompanied children and for individuals with mental disabilities in immigration courts at government expense.
The federal court for the Central District of California handed down a decision in a class action lawsuit begun in 2010 on behalf of a 33-year old man with intellectual disability who had been held in detention for 5 years after he could not defend himself in a deportation hearing and others in similar circumstances. The court ordered immigration courts in California, Arizona, and Washington to provide legal representation for immigrants with mental disabilities who are in detention facing deportation and who cannot represent themselves. The court ordered bond hearings for anyone with a mental disorder who had been in detention for 6 months or longer.
The federal court decision, the new DOJ and DHS policy, and the immigration reform bill provision address the serious problem of prolonged detention that some immigrants with disabilities experience. Since these individuals cannot represent themselves effectively in immigration courts and do not have a right to counsel, they end up being held in detention centers for long periods of time – months, sometimes years – with no due process protections.