Settlement allows class of people with mental illness to rechallenge deportation orders

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Deportation Victory for Immigrants with Mental Illness

Hundreds of people with mental illness, whom were denied counsel in their deportation hearing, will have the opportunity to regain their legal status in the United States, under a settlement [PDF] finalized in federal district court September 25.

“Today’s ruling is a victory for due process,” Hector Villagra, executive director of the ACLU of Southern California, said in a news release. “For too long, individuals with mental disabilities were forced to represent themselves in deportation proceedings or allowed to languish in immigration jails. Ultimately, all were denied a fair day in court.

“This settlement ensures that individuals who were ordered deported in violation of the law will finally have an opportunity to obtain the benefits of the court’s landmark ruling.”

The settlement pertains to an estimated 900 individuals deported from the states of California, Arizona and Washington after Nov. 21, 2011.

The catalyst for the settlement is a 2010 class-action lawsuit, asserting that the deportation process, as it applies to people with mental illness, systematically violates Section 504 of the Rehabilitation Act, which prohibits disability discrimination by federal agencies and contractors, the Immigration and Nationality Act (INA), and the Fifth Amendment’s Due Process Clause.

Ordinarily, people facing deportation proceedings do not have a right to counsel. However, in a first-of-its-type decision [PDF] issued in April 2013, the U.S. District Court for the Center District of California ruled in favor of the plaintiff’s argument that Section 504 requires the government to provide counsel to individuals lacking the mental capacity to represent themselves.

Rebutting the government’s arguments that such a requirement contradicts the INA, or otherwise constitutes a “fundamental alteration” or “undue burden” under Section 504, the Court found that the appointment of counsel for these individuals is necessary to protect their due process rights provided to them under the INA.

“The opportunity to ‘examine the evidence against the alien, to present evidence on the alien’s behalf, and to cross-examine witnesses presented by the Government’ is available to all individuals in immigration proceedings, but is beyond plaintiff’s reach as a result of their mental incompetency,” the court said in the opinion.

The Court also found individuals cannot be held in detention, either prior to or after a ruling ordering their deportation, for longer than six months without violating the INA’s mandate that they only be held for a “reasonable” period of time. The only exception is where the government demonstrates by “clear and convincing evidence” that further detainment is necessary.

In subsequent proceeding, the court approved a comprehensive implementation plan, which, among other things, created a new screening process for identifying individuals eligible for competency evaluations, to determine if they must be appointed counsel, according to an ACLU timeline of the case. The District Court also appointed an independent monitor to oversee the implementation plan, which is believed to be the first time the Department of Homeland Security has been subject to a monitor.

Along with the ACLU of Southern California, the plaintiffs were represented by attorneys from ACLU of San Diego and Imperial Counties, Mental Health Advocacy Services, the Northwest Immigrant Rights Project, Public Counsel and Sullivan & Cromwell.