March 22, 2023

Judge sets competency protocol for immigrant detainees

Immigration-DetentionBy Amanda Bronstad, From The National Law Journal

The federal government has 90 days to implement court-ordered procedures that for the first time would screen undocumented immigrant detainees for mental competency.

U.S. District Judge Dolly Gee, who ruled in a class action last year that mentally incompetent immigrant detainees should be afforded a lawyer, now has outlined how the Department of Homeland Security should handle such screening. Her order, designed to identify members of the class, pertains only to immigration detention facilities in Arizona, California and the state of Washington. But lawyers who brought the case predicted the federal government would apply the protocol nationwide.

“We believe that, given the procedures that are now here, this will be a model for the rest of the country,” said Michael Steinberg, a partner at New York’s Sullivan & Cromwell in Los Angeles working with Public Counsel and the American Civil Liberties Union of Southern California on the case. “These procedures have been strongly vetted and reviewed and we think offer a protected environment for our class members.”

Justice Department spokeswoman Nicole Navas declined to comment.

The case was brought in 2010 as a habeas corpus petition on behalf of José Antonio Franco-Gonzales, a Costa Mesa, Calif., immigrant from Mexico who was held for five years despite suffering from moderate mental retardation. The complaint alleged that hundreds of undocumented immigrants were unable to secure legal counsel while detained, in violation of their due-process rights under the Fifth Amendment and other laws.

In 2011, Gee certified two subclasses: Those already proven incompetent to represent themselves and lacking attorneys; and those suspected or declared incompetent and have been detained for more than six months.

In 2013, Gee, an Obama appointee, granted the plaintiffs’ partial summary judgment after finding that immigrant detainees incompetent to represent themselves are entitled to an attorney. Her ruling came one day after the departments of Justice and Homeland Security announced a new nationwide policy that would allow mentally incompetent detainees to have legal representation.

Remaining in the case, however, were claims for adequate competency evaluations.

“The government had no system in place,” said Talia Inlender, a staff attorney at Public Counsel. “That’s what this order does. It creates the comprehensive system that was nonexistent before.”

Gee’s latest order, dated Oct. 29, approved a set of procedures crafted with the help of a special master, retired U.S. District Judge A. Howard Matz, now senior counsel at Bird, Marella, Boxer, Wolpert, Nessim, Drooks, Lincenberg & Rhow in Los Angeles.

Initial screenings must take place 14 days after an immigrant enters a detention center. Information on the mental health records of detainees must be shared with immigration judges. The ruling also sets forth a detailed competency procedure for judges to use to determine whether immigrant detainees can represent themselves.

“It was a disaster beforehand,” Steinberg said of the government’s evaluation methods. “There were examples in the files we saw where the person wouldn’t even be interviewed in person.”

Photo: Jason Doiy/ALM

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