Wilner & O'Reilly, APLC
One Practice. One Focus. One Passion: Immigration Law.

Immigrants with mental disabilities entitled to free legal help

It is not the same as the right to an attorney for a criminal suspect who cannot afford one, but it's a start. Certain immigrants facing deportation proceedings now have the opportunity to obtain free representation before the courts as they fight their cases.

A federal court judge recently issued that decree, making it the law for California. At about the same time, the U.S. Department of Justice codified the right as a matter of policy for the whole country. The action could have significant implications for many facing issues related to complex deportation proceedings.

The new policy specifically addresses circumstances involving immigrants who are mentally disabled. Too often, these individuals are incapable of presenting a viable defense in response to deportation efforts.

Under the law, these individuals aren't entitled to a public defender. If they can't afford an attorney, or don't even know how to obtain one, they can get shunted off into detention centers where they may languish for years without any form of due process.

That's what happened to one plaintiff whose case spurred the lawsuit seeking the change in policy. He is 32-years-old and entered the U.S. from Mexico when he was 18. His attorneys say his IQ is no higher than 55 and he is unable to count beyond 10.

At some point, this man was taken into custody and entered the deportation process. A judge declared him incapable of representing himself. But instead of being released, the man was returned to detention, where he stayed for nearly five years.

Now, because of the court decision and the federal policy, immigrants who are deemed incompetent have the right to some form of free legal help. It may not be from an attorney, which is always the best option. It might be a law student or someone who has experience with the system and who is deemed acceptable by the courts.

In addition to representation, detainees with serious mental issues are also to be guaranteed a bond hearing after six months in detention.

Source: Los Angeles Times, "Mentally disabled facing deportation win right to free legal help," Cindy Chang, April 25, 2013

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