In a precedent-setting case, a federal judge upheld a right to counsel for immigrants with mental disabilities who are facing deportation if they cannot represent themselves. The ruling applied to the immigration courts of three states, but a new policy issued by federal immigration officials expands the protection to immigration courts nationwide.
This is the first time a federal judge has recognized such as right for individuals facing deportation in the country's immigration courts. The class-action lawsuit was filed by the American Civil Liberties Union in 2010. One of the plaintiffs was a mentally retarded man who was detained for five years after his deportation case was closed because his disability prevented him from representing himself or even comprehending his situation.
Currently, detainees facing deportation in immigration court do not have a right to a lawyer provided by the government if they cannot afford their own, such as in criminal law cases. Even children and the mentally disabled have been forced to represent themselves when they cannot afford to hire a private immigration lawyer.
The federal judge's decision, which applied to immigration courts in Arizona, California and Washington, held that mentally disabled detainees are entitled to a government-appointed immigration lawyer after being detained for more than six months. The judge reasoned that without the protection, mentally disabled detainees cannot "fairly participate" in removal proceedings.
Last week, the president of the American Immigration Lawyers Association called the decision "the first step in recognizing that, given the complexity of our immigration laws, it is not appropriate to force a vulnerable population through the system without appointed counsel."
Source: The New York Times, "In a First, Judge Orders Legal Aid for Mentally Disabled Immigrants Facing Deportation," Julia Preseton, April 24, 2013