ACLU and Partners Win Right to Legal Representation for Mentally Disabled Immigrant

Los Angeles — People who suffer from severe mental illnesses should not be detained for more than six months without the right to counsel, a federal court in Los Angeles ordered at the behest of the ACLU and legal partners.

The court ordered the Department of Homeland Security to find legal representation – whether paid or pro bono – for a man suffering from a serious mental illness held in immigration detention. The court’s order, which was unsealed this week, defined the procedures that the government must follow to protect the rights of immigrants with severe mental disabilities held in detention.

The court ruled that the government must provide an attorney, an accredited legal representative, or a law student or law graduate supervised by an attorney whenever a “mentally incompetent” individual has a hearing to be released from detention. The court also ruled that immigration detainees with such mental disabilities have a right to a release hearing once they have been detained for more than six months.

The decision involves Maksim Zhalezny, a 21-year-old lawful permanent resident with schizophrenia who has been subject to detention for over 13 months. Throughout this time, Mr. Zhalezny, who was declared mentally incompetent by a forensic psychiatrist, has been unrepresented by counsel, unable to understand the proceedings against him, and incapable of challenging his lengthy detention.

“Ensuring that immigrants with mental disabilities are represented in their proceedings should be a fundamental component of due process,” said ACLU-SDIC attorney Sean Riordan, “The court’s ruling for Mr. Zhalezny brings us one step closer to a system where disabled immigrants will not languish in detention for years as their cases are resolved.”

On any given day, there are approximately 37,000 people detained by immigration officials in detention centers throughout the country. A government report last year estimated that nearly 1,500 mental health patients were being detained in those detention centers, while also acknowledging that approximately half of the facilities do not systematically track the number of detainees with mental health conditions.

Unlike the criminal justice system, the immigration system lacks procedures to resolve cases against individuals with mental disabilities who are not competent to represent themselves.

The court’s decision rejected the Department of Homeland Security’s argument that individuals without any immigration knowledge or legal experience, such as detainees’ family members, could represent individuals with serious mental disabilities in their immigration proceedings, even without the consent of those facing possible deportation. The court found that such a system would be tantamount to disability discrimination.

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Background
In March of 2010, the ACLU of San Diego & Imperial Counties, ACLU of Southern California,, Public Counsel in Los Angeles and the Casa Cornelia Law Center in San Diego first filed suits in U.S. District Courts in Southern California on behalf of Jose Antonio Franco, 31, and Guillermo Gomez Sanchez, 49. Because of their profound mental disabilities, both men had spent approximately 5 years in immigration detention without legal assistance to fight their cases, but were released just days after the suit was filed.

In November of 2010, with the assistance of Sullivan & Comwell LLP, the ACLU Immigrants’ Rights Project, ,Mental Health Advocacy Services,, and Northwest Immigrant Rights Project, the groups amended their suit to make it a class action on behalf of all unrepresented individuals with serious mental disabilities in the custody of the Department of Homeland Security in California, Arizona and Washington. U.S. District Judge Dolly Gee first issued a decision requiring the Government to afford representation to two detained individuals with serious mental disabilities in their immigration proceedings on December of 2010. The case remains on-going.