Steinberg: Congress Must Correct Injustice for Immigrants With Mental Disabilities

Detained immigrants with disabilities must be allowed to have legal representation

Posted April 8, 2013 at 5:48pm

One issue that I am hopeful Congress will incorporate in immigration overhaul legislation is one that ought to be uncontroversial: that people with serious mental disabilities should receive legal representation in their immigration proceedings so that they are not compelled, as they are now, to represent themselves.

Recently there have been bipartisan statements of support for this issue. During a Senate Judiciary Committee hearing in March, Sen. Chris Coons, D-Del., noted that immigrants, including those with mental disabilities, “lack not just the right to appointed counsel, but also the ability to obtain documents from the government that may be necessary to prove their cases.”

This statement was supported by testimony submitted to the committee by disability rights groups. In February, Julie Myers Wood, an immigration official under President George W. Bush (for whom I proudly voted), provided testimony to Congress on an immigration overhaul. At the end of her presentation, she made a plea, asking that the most vulnerable immigrants — unaccompanied children and those with mental disabilities — be provided with representation in their immigration proceedings.

And then in March the president’s immigration proposal was leaked, and it was equally unambiguous with respect to individuals with serious mental illnesses. It stated that “the Attorney General shall appoint representation” for a “mentally incompetent alien.” With such bipartisan support for the issue, you’d think the problem should be solved quickly.

But now for the irony in the president’s statement. For all of his rhetoric in support of coming to the aid of this most vulnerable population, the Obama administration has litigated vigorously against providing representation to a class of detained immigrants who suffer from serious mental illnesses and are forced to represent themselves.

I know this because I represent that class in a federal court class action that I filed in California more than two years ago. At each and every hearing where I appear to seek representation for my incompetent clients, Obama, through his Department of Justice, firmly and unconditionally opposes providing any legal assistance to immigrants with serious mental disorders. Although many of my clients hear voices in their heads, the president’s lawyers vigorously argue that they must represent themselves, no matter how absurd the outcome.

This isn’t just rhetoric; it is fact. Let me give but one example: the case of Jose Antonio Franco-Gonzalez. Franco-Gonzalez suffers from profound mental retardation, possessing the cognitive abilities of a young child and an IQ of 33 to 55. Franco-Gonzalez spent nearly five years in a detention facility at the mercy of the United States government, lost in an immigration system that does not have a basic structure in place to address his profound mental health problems.

And, what makes it worse is that shortly after the government took Franco-Gonzalez into custody, a psychiatrist determined that Franco-Gonzalez had no basic understanding of the immigration proceedings facing him, did not understand what was at stake in the proceedings or even how to defend himself. But, nevertheless, Franco-Gonzalez was forced to represent himself.

And despite the fact that an immigration judge closed Franco-Gonzalez’s removal proceedings in 2005, Franco-Gonzalez remained in detention until 2010, until a lawyer filed a habeas petition demanding his release. Franco-Gonzalez lost five years of his life because our government refuses to provide basic legal rights to individuals who are just not mentally capable of representing themselves.

If you are distressed by this tragedy, you are not alone. Wood clearly gets it. But, sadly, the current administration has shown little actual desire to solve the problem.

And lest you think I’m just a “government should just pay” advocate, the actual economics here are startling and compelling. Let’s again take Franco-Gonzalez’s case, in which he was detained for nearly five years. Government estimates of the per-day cost for immigrant detainees are $94 to $150. If we take an average per-day cost of $125, the government spent well over $200,000 to keep a mentally disabled immigrant with an IQ of 33-55 in custody for five years.

The moment that a lawyer got involved and sought redress, our government finally (but reluctantly) acted. Franco-Gonzalez is now released. Others, however, are not as lucky, and we continue to fight to require the government to provide representation to these immigrants with mental disabilities.

But waiting for cases to truly become so egregious to have to run into court is not humane, is not good policy and makes no fiscal sense. If the government pocketed the amount that it spent keeping Franco-Gonzalez in detention, it could pay a lawyer for about four years (a public defender in Los Angeles gets paid roughly $50,000 a year), and a full-time lawyer could certainly represent dozens of immigrants over that course of time. In the words of the president in another context, it’s “just math.”

Between the tragedy of it all, the numbers, the bipartisan support, the administrative inaction and the public outcry for an immigration overhaul, now is the time for Congress to act to ensure representation for detained immigrants who suffer from serious mental illnesses. Politics is one thing, but basic human compassion is another. Providing representation is just the right thing to do.

Michael H. Steinberg is a partner at Sullivan & Cromwell LLP in Los Angeles.