What happens to Immigrants with Mental Disabilities in Removal Proceedings?
With little safeguards, each year many non-citizens or even U.S. citizens have been ordered removed without access to counsel and without any clinical analysis. This is a clear violation of both the Fifth Amendment Equal Protection Clause, and of the Fourth Amendment Due Process Clause.
In Lyttle v.US in December 2010, a U.S. citizen with bipolar disorder was wrongfully deported to Mexico. After serving a short criminal sentence in North Carolina, this U.S. citizen was sent to a federal immigration detention facility as an undocumented alien and then Mr. Lyttle was removed to Mexico after a removal hearing without legal counsel. After months of wandering through Central America, the U.S. Embassy in Guatemala located his U.S. citizen relatives and issued him a passport. This is an absolute violation of both the 4th and 5th Amendments of our Constitution.
The following four cases as provided by American Immigration Council all indicate the need and obligation of immigration judges to provide competency hearings where there is a question of mental disability.
In August 2010, in Matter of G-B-N, the BIA remanded the case of a Vietnam native who had been a lawful permanent resident for years. This respondent had suffered severe brain injury and was not provided with any Counsel at the hearing. He had entered the country as the spouse of an Amerasian (one whose father had served in the U.S. military). Although he had been diagnosed by a neurologist after a fishing boat accident in Alaska, his wife and children were unaware of this diagnosis. His conviction was over 10 years old when he was put in removal proceedings for a marijuana charge. At his hearing, his testimony was contradictory and confusing but he informed the IJ that he had been diagnosed by doctors with a “mental problem”. Once Counsel was retained, a motion arguing IJ should have made a competency determination before conducting the hearing and the BIA remanded.
In Matter of L-T, in November 2010, the Board of Appeals dismissed the appeal of the government who had appealed the Judge terminating proceedings because L-T could not understand the charges against him and so he had ordered a mental competency evaluation. DHS refused to submit the results of the court ordered mental evaluation and argued that a deportation officer should serve as the Respondent’s custodian. The BIA requested amicus briefs regarding statutory and constitutional rights of non-citizens in removal proceedings. DHS then withdrew its appeal and the Judge’s decision became final. This case suggests that the Constitution may require appointment of private counsel for non-citizens with mental disabilities.
In August 2010, lawyers filed a class action suit on behalf of Franco-Gonzalez and other non-citizens with mental disabilities. This would include those in DHS custody for removal proceedings in California, Arizona, and Washington who have been identified by medical personnel, DHS or an immigration judge as having a mental disorder that could render them incompetent to represent themselves. Violations claimed of the INA, Rehabilitation Act, and Administrative Procedure Act as well as the Due Process Clause are alleged.
Mr. Jose Antonio Franco-Gonzalez of Mexico – who had an IQ between 35-55 – was kept in immigration custody for over 5 years even though the government had terminated his removal proceedings. A habeas petition under Zadvydas v. Davis, a Supreme Court decision which prohibits the government from detaining non-citizens whose removal is not reasonably foreseeable, was filed which resulted in his release.
As of November 2010 this class action suit aims at:
*Conducting competency hearings for all those the government knows or should know are incompetent
*Appointing attorneys for those in need of counsel after the mental evaluation
*Conducting custody hearings for those facing prolonged detention caused by delays from their mental disabilities