Los Angeles — The American Civil Liberties Union of Southern California announced that a federal court in Los Angeles 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 today, 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.

“The Court’s decision marks an important step in protecting the fundamental rights of individuals with mental disabilities, who could languish in detention for months or years if they are not provided with release hearings and legal representation at those hearings,” said Ahilan Arulanantham, Deputy Legal Director of the American Civil Liberties Union of Southern California (ACLU/SC).

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. 

“It is sad that, even today, the government still has failed to implement adequate procedures and policies to protect individuals with mental disabilities who are detained by immigration authorities.  Unfortunately, the government’s ‘safeguards’ are really only used to funnel these individuals through the immigration system; they are thin on substance and empty on protection,” said Michael Steinberg, a partner with Sullivan & Cromwell LLP.

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.

“Judge Gee’s ruling helps to ensure that Maksim Zhalezny will finally be able to challenge the prolonged detention to which he has been subjected for months on end because of his serious mental health condition,” said Talia Inlender, an attorney with Public Counsel.  “Unfortunately, there are many more individuals like Mr. Zhalezny who are being unnecessarily incarcerated in detention centers across the country, and who remain trapped in an immigration system that continues to lack safeguards to protect the rights of those with mental disabilities.”
In March of 2010, the ACLU/SC, the ACLU of San Diego & Imperial Counties, 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.