A Small Step for Courts, a Huge Leap for Migrants

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LIRS resettles refugees, but you already knew that. What you might not know is that we also help reunite families torn apart by conflict, protect vulnerable children who arrive alone in the US, promote a spirit of welcome in American communities, and advocate for compassion and justice for all migrants.

The last of those objectives has been getting a lot of attention with the recent push to pass the DREAM act in the House and Senate. With a firm victory in the House, the Senate’s refusal to allow hundreds of thousands of children a future in the only country they know as home was a bitter disappointment.

With a new Congress setting the immigration agenda to focus exclusively on enforcing our broken immigration system, the struggle will shift to ensuring that the federal and state enforcement practices are humane, just, and compassionate.

LIRS’ Access to Justice (ATJ) unit works tirelessly to reverse what they call the “dire lack of ‘due process’ in immigration removal proceedings” and pressure the government to avoid detention except in limited cases when the government proves a need to detain.

The right to representation in immigration court is a high priority in ATJ’s work. The fundamental issue at hand is that immigration violations are considered administrative rather than criminal. Therefore, the right to free counsel, guaranteed to all criminal defendants by the Sixth Amendment, is not extended to immigrants in detention. ATJ works closely with partners to advocate on behalf of immigrants who cannot afford counsel, do not understand the complicated nuances of immigration law, and should be provided with counsel to ensure they are being given a fair chance to argue their case before the court.

(For more on why undocumented workers are not “illegals” or “criminals” and other myth-busting information listen to LIRS Director for Access to Justice Leslie Velez’s recent presentation in Dallas)

And so it was good news to hear that there has been a favorable U.S. district court ruling that guarantees the right to counsel to a subset of the immigrant population in detention: those with severe mental disabilities. The decision is a small legal step for courts but a huge leap for migrants.

On December 22, 2010 US District Judge Dolly Gee ruled that “federal officials must provide representation for two men with severe mental disabilities while they fight their deportation cases,” and that the defendants “must be afforded a bond hearing to determine whether they should remain in detention.”

More from the ACLU’s press release:

Judge Gee’s decision marks one of the first instances in which a federal court has required the government to provide representation for any individual in immigration proceedings.

“The court’s well-reasoned order recognizes what common sense should already tell us: people with serious mental disabilities cannot get a fair hearing without representation in immigration court,” said Ahilan Arulanantham, an attorney with the American Civil Liberties Union of Southern California.

In March, the ACLU/SC, the ACLU of San Diego & Imperial Counties, Public Counsel in Los Angeles and the Casa Cornelia Law Center in San Diego filed suits in U.S. District Courts in Southern California on behalf of Jose Antonio Franco, 30, and Guillermo Gomez Sanchez, 48. Because of their profound mental disabilities, both men had spent years in immigration detention without legal assistance to fight their cases but were released just days after the suit was filed.

The groups then obtained the assistance of Sullivan & Cromwell and moved to transform the case into a class action on behalf of detainees with mental disabilities in November.

The lawsuit alleges federal officials have deprived these immigrants of their Constitutional right to due process and violated federal anti-discrimination laws designed to protect people with disabilities.

Judge Gee’s ruling, which was temporarily filed under seal to protect private medical information, requires the government to obtain representation for the two individuals who are part of the class, both of whom face imminent deportation if not given assistance. The ruling also requires that these individuals be allowed a hearing with representation — to determine whether any further detention is legal.

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