Among the thousands of immigrants facing detention and deportation every day are countless individuals struggling with serious mental illness. With no right to appointed counsel, these individuals are often unable to even understand the charges brought against them. Their mental health frequently deteriorates due to the stress of detention. CAIR Coalition has long advocated for this vulnerable population in the face of a detention and removal system severely lacking in protections. Last week the federal government took a first step toward a workable solution for these problems by outlining new safeguards to be implemented for unrepresented mentally ill detainees. Most remarkably, these policies include the guarantee of a qualified legal representative for detained individuals found by an immigration judge to be incompetent to represent themselves. The Executive Office for Immigration Review (EOIR), the agency that houses the federal immigration courts, issued a policy directive on April 22nd requiring implementation of the following new guidelines: 1) immigration judges will be required to conduct a competency hearing if any evidence demonstrates that an individual appearing before them has a mental illness that precludes her from adequately representing herself; 2) immigration judges will be able to order independent mental competency examinations to serve as a tool in determining competency; 3) EOIR will provide a “qualified legal representative” for those found to be incompetent; and 4) all unrepresented detained immigrants with a serious mental illness that may render them incompetent must be provided a bond hearing if they have been held in detention for six months or longer. These procedures are to be in place by the end of 2013. On the same day, Immigration and Customs Enforcement (ICE) issued its own memo complementing the new EOIR policy. The memo focuses on the development of procedures to properly identify those detainees with significant mental illness and competency issues, including robust screening mechanisms and the development of a national hotline for family and friends of detainees. Additionally, the memo requires ICE officers and attorneys to ensure that all documents regarding an unrepresented detainee’s mental competency are brought to the immigration judge’s attention. Like the EOIR memo, the ICE memo requires compliance by the end of 2013. The issuance of these directives was prompted by a landmark ruling handed down by the federal court for the Central District of California ordering the government to provide legal representation to those individuals not competent to represent themselves in detention and removal proceedings because of a mental disability. The Court’s finding, in a case called Franco v. Holder (Case No. CV 10-02211) brought by the ACLU of Southern California, marks the first time a court has mandated legal representation for any group of individuals in removal proceedings. Although geographically limited, the decision marks a stunning victory for immigrants across the United States and for those organizations like CAIR Coalition who believe that no one should have to navigate the vast detention and removal system without an attorney. Last week’s developments mark an important preliminary step in the ongoing work to restore due process and fairness to the detention and removal system. We at CAIR Coalition call upon both EOIR and ICE to work with us and other immigrant advocates to ensure that these policy directives are implemented in a manner that is compassionate and respectful of the fundamental rights of those they intend to protect.
