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Local jails may limit immigration holds to convicts

In the next year, many of California’s local jails might limit federal immigration “holds” to detainees with felony convictions, greatly reducing the number of people deported from the state solely for entering the country without permission.

Gov. Jerry Brown met with leaders from the California State Sheriffs' Association last week to discuss ways to give city police and county sheriff's departments discretion on immigration enforcement.

Alameda County Sheriff Gregory Ahern said he recommended legislation to amend state Penal Code 834b. The code mandates that law enforcement cooperate with federal agents "regarding any person who is arrested if he or she is suspected of being present in the United States in violation of federal immigration laws."

Brown informed the sheriffs association that his office is working on draft legislation to that effect, Ahern said.

At issue is how local law enforcement should participate in Secure Communities, an Immigration and Customs Enforcement program operating in most of the state.

The program checks detainees’ residency status using fingerprint data collected from county jails. Immigration and Customs Enforcement can then place a hold on those found to be in the country illegally. Federal officials have cast the effort as critical to finding and deporting unauthorized immigrants who are dangerous criminals.

However, Secure Communities frequently has snared detainees with no criminal histories.

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Mentally ill immigrants trapped in US detention without attorneys

Illegal immigrants with severe mental health problems are caught in legal limbo, trapped in detention in the United States without attorneys.

Ken Steinhardt/Orange County RegisterMaria Franco embraces son Jose Franco-Gonzalez as his father, Francisco Franco, watches after Franco-Gonzalez's release from Immigration and Customs Enforcement detention in March 2010. Franco-Gonzalez, who is mentally disabled, pleaded guilty to assault in 2005 and was detained for five years without a hearing.

With his handcuffs briefly unlocked from his wrists while he faced a judge, Miguel Canto-Ortiz wore the familiar mark of a detainee: a bright orange shirt from the Santa Ana Jail. But unlike the thousands of others who have passed through this courtroom, Canto-Ortiz was a man without a lawyer.

On the back of his shaved head is a scar from a traumatic brain injury that rendered him unable to read, write or even remember his birthday.

It was Canto-Ortiz’s deportation hearing, and U.S. District Immigration Judge David C. Anderson was testing his mental condition. The judge asked the 51-year-old detainee if he could explain what type of courtroom he was in.

“Too much problem in my head – I can’t say anything,” Canto-Ortiz mumbled in Spanish.

For the legal system and immigrant-rights attorneys, his case represents a frustrating problem without an easy answer: Illegal immigrants with severe mental health problems – many without criminal records – have been trapped in detention in the United States without attorneys.

 

“These are people that are sitting in detention for years, not understanding what is happening to them,” said Talia Inlender, an attorney with Public Counsel, a pro bono law firm representing several of the plaintiffs in a class-action suit on behalf of mentally ill detainees in California, Arizona and Washington. “They are so mentally disabled they can’t participate in their own removal proceedings.”

The government holds, on average, more than 30,000 illegal immigrants in detention on any given day. Immigration and Customs Enforcement officials do not know how many are mentally disabled, but class-action attorneys estimate as many as 1,000 immigration detainees have a “serious mental illness.” 

In January 2011, Inlender and a group of pro bono law firms identified Canto-Ortiz, a native of Mexico who came to the U.S. as a child, as a potential plaintiff in the lawsuit they filed last year. It is the first class-action suit on behalf of detainees with severe mental disabilities who go through the immigration courts without access to attorneys.

The class-action lawsuit contends that by denying severely mentally ill detainees the right to court-appointed attorneys, the federal government has stripped them of due process rights and violated federal anti-discrimination laws. The Immigration and Nationality Act gives non-citizens the privilege of representation, but not at the government’s expense. 

On Dec. 20, Judge Dolly Gee of the U.S. District Court for the Central District of California granted the suit class-action status. She concluded that there is no mechanism for evaluating whether detainees with mental disabilities are able to represent themselves.

It costs about $166 a day to house an illegal immigrant in detention, according to the National Immigration Forum, a nonprofit based in Washington, D.C. At just one facility, the Santa Ana Jail, the federal government pays about $15 million a year for housing illegal immigrants.

Government representatives would not comment on the lawsuit. But at a hearing in Los Angeles in March of last year, Victor M. Lawrence, principal assistant director of the Justice Department’s Office of Immigration Litigation, argued that the plaintiffs had not proven “there is a significant number of people that would potentially be injured.”

But pro bono attorneys say it takes time to identify mentally ill detainees who need representation – especially given communication barriers resulting from mental illness. Earlier last year, they identified several cases. Judge Gee, in her decision, found that the problems identified in the lawsuit are indeed systemic.

Man held in detention for years

The lawsuit grew out of the case of Jose Franco-Gonzalez, a mentally disabled man who pleaded guilty to assault and was detained in 2005. An immigration judge closed his deportation case because he didn’t have a lawyer and was mentally incompetent to represent himself. But he remained in detention.

During those years in detention, Franco-Gonzalez did not have a hearing. In March 2010, after Public Counsel and the ACLU filed a petition asking for his release, immigration officials released Franco-Gonzalez. For more than a year, he was monitored electronically. He is now receiving intensive mental health services as he waits for his next immigration hearing.

Pro bono attorneys later added more mentally disabled plaintiffs to their class-action complaint – eight are now part of the lawsuit. Some of them are illegal immigrants; others are refugees or lawful permanent residents who faced having their legal status revoked because of criminal convictions.

Aleksandr Petrovich Khukhryanskiy, a refugee from Ukraine, is diagnosed with paranoid schizophrenia, psychosis and major depression. He was convicted of attempted assault and robbery in 2005. He was detained in April 2010 at the Northwest Detention Center in Tacoma, Wash.

Without a lawyer, he represented himself in immigration court. A few months later, he was ordered deported. But with the help of the pro bono team, Khukhryanskiy appealed his case, and his deportation was canceled in April 2011. He was given a $30,000 bond but can’t afford to pay it, so he remains in detention. His next hearing is in February.

Among the others:

  • Maksim Piotrovich Zhalezny, a legal resident who had been arrested for misdemeanor theft, assault and disturbing the peace, is also diagnosed with schizophrenia. Because he didn’t have an attorney at the Sacramento County Jail – where he was detained in April 2010 – Zhalezny’s father agreed to represent him. But he backed out because he speaks little English and didn’t feel qualified. In response to the pro bono team, Zhalezny was granted a bond hearing and released under certain conditions.
  • Jose Chavez, who suffers from chronic paranoid schizophrenia, has been detained since 2006 and remains unrepresented. He was held in the San Pedro Service Processing Center and at Otay Mesa, in San Diego, after an arrest for battery and assault. He was ordered deported but appealed with the help of other detainees. His case is closed as he waits in detention for an asylum hearing.
  • Yonas Woldemariam is a legal resident with bipolar disorder who before detention was in and out of mental institutions. He was detained in September 2010 on second-degree robbery charges and a probation violation from a prior petty theft. In March, he was transferred from the Yuba County Jail to the Sacramento County Jail, where he was in lockdown 23 hours a day and where phone calls are limited. The class-action complaint says he was transferred there because he refused to take an anti-psychotic medication. He was released last year and reunited with his family members.  
  • Juan Sepulveda-Perez was detained for several month months at Otay Mesa. He has been diagnosed with paranoid schizophrenia and has attempted suicide multiple times during his detention. He was released on Dec. 22.**

Mental competency policies needed, advocates say

In the past couple of years, Human Rights Watch and Texas Appleseed, a public interest law center, have issued reports identifying the lack of safeguards for mentally ill detainees, pointing to cases in which even American citizens were wrongly deported.

In May, with recommendations from the American Immigration Council and other lawyers groups, the Board of Immigration Appeals created guidelines for dealing with mentally ill detainees. The guidelines say a mentally competent detainee is someone who understands the nature of his or her case; can consult with an attorney or representative; and can examine adverse evidence, present favorable evidence and cross-examine government witnesses. 

The board also said the Department of Homeland Security has an obligation to provide immigration judges with any relevant materials regarding an immigrant’s mental competency.

But advocacy groups and attorneys are pushing for a formal process that would include their input and create specific rules. For one, the Board of Immigration Appeals did not address immigration judges’ “lack of expertise in conducting competency assessments,” read a statement by the American Immigration Council. The board also doesn’t recommend appointing attorneys for the mentally incompetent.

The majority of detainees – roughly 60 percent – go without lawyers, according to the Department of Justice. Many are forced to represent themselves, often without adequate language skills.

“What we’re trying to do is to help get practices and procedures in place so it’s not left to an individual immigration judge or government attorney to determine the fate of a mentally incompetent detainee,” Inlender said. “We need a system in place so every detainee is getting a fair shake.”

In immigration court, Judge Anderson was visibly frustrated that Canto-Ortiz hadn’t been able to find a lawyer after six hearings and was clearly unable to represent himself. He had been in detention for a year already, and no one had been able to find any of his family members. A psychological evaluation completed in March at the urging of the pro bono team diagnosed Canto-Ortiz with psychotic disorder and hallucinations and indicated that he was not taking any psychotropic medications.

After taking a few minutes to read the psychological evaluation, the judge told the court that he was unable to offer a fair hearing to Canto-Ortiz. An attorney with the Department of Homeland Security suggested the hearing be postponed to a later date.

The judge denied that option. “I’ve done that already five times,” he said. “You’ve left me with no options but to terminate the proceedings.”

It was a partial victory for Canto-Ortiz, who no longer faced possible deportation to Mexico but could continue to linger, in limbo, in the Santa Ana Jail.

Legal immigrant faces troubles

In another case, even holding a green card didn’t shield Ever Martinez from the possibility of deportation. Martinez was born in El Salvador and is a legal permanent resident of the U.S. In 2007, he was charged with felony assault after he got in a fight with his stepfather.

Martinez started showing signs of mental illness in his early 20s, and when his mother took him to a Los Angeles psychiatric ward, he was diagnosed with schizophrenia and placed on medication. He kept getting worse, and he was in and out of mental hospitals for several years. But Martinez had no history of violence, said his mother, Maria Elena Felipe.

That changed shortly after Martinez moved back in with his mother in 2007. In June of that year, while Felipe was at work, Martinez was arrested after getting into a fight with his stepfather, whom he knocked unconscious and who lay in a coma for 10 days. 

Martinez was charged with a felony – a charge that can lead to deportation even for legal permanent residents. He was then transferred in late 2009 from criminal custody to the Otay Mesa detention center, a few miles north of the U.S.-Mexico border in San Diego.

Martinez occupied one of 32 beds in the mental health ward managed by ICE’s Health Service Corps, which provides medical and public health services to those in its custody. Otay Mesa ­– operated by the Corrections Corporation of America, a private company with more than 60 facilities in the U.S. – is one of two federal detention centers that provide care for the severely mentally disabled, said Lauren Mack, an ICE spokeswoman.

There are 240 detainees being treated for “some form of mental illness with varying levels of severity” at Otay Mesa, she said. The other center, the Krome Detention Center, is near Miami.

In recent years, the ACLU has sued the federal government for health and safety violations at Otay Mesa, including overcrowding. In response in 2008, ICE transferred more than a hundred detainees out of Otay Mesa.

In a 2007 lawsuit, the ACLU cited inadequate medical care and negligence. It said that detainees were subjected to long delays before treatment, denied necessary medication for chronic illnesses and refused referrals prescribed by medical staff.

In 2008, a federal district judge ruled against the federal government. The court found that the withholding of a medical test and delaying a biopsy for a detainee at Otay Mesa, who later died of cancer, was “beyond cruel and unusual.” The lawsuit cited the cases of 11 other detainees, some whose mental illnesses went untreated and others who had to wait almost a year for surgery or for treatment for diabetes, chest pains, hypertension and abscessed teeth.

In December 2010, the federal government reached a settlement with the ACLU. ICE is required to add psychiatric staff, as well as remove existing policies that say detainees have access only to emergency medical services.

Struggles with complaint process

In general, attorneys working with detainees hear a laundry list of typical complaints.

“There’s very little outdoor space, the food isn’t good, the guards abuse them, they have problems contacting lawyers or their loved ones, the phone system is bad, the law library isn’t good, they’re stuck in their cells all day long,” said Michael Kaufman, an ACLU attorney based in Los Angeles.

One of the most common complaints is that ICE or sheriffs at the jails that contract out to ICE don’t respond when detainees file a complaint, Kaufman said. “Someone that’s mentally ill may not even understand the complaint process,” he said.

Receiving visitors takes longer when a detainee is in isolation. There are fewer visiting rooms, and transporting the detainees from their segregation units requires more manpower, said Sean Riordan, an attorney with the ACLU’s San Diego branch.

Maria Felipe said that more than once, she waited 12 hours to see Ever Martinez for an hour, arriving at 8 in the morning and leaving at 8 at night. Felipe worried even more about what would happen to Martinez if he were deported – he would find no one in El Salvador to take care of him.

“All the family we have are here – there is no one back home,” she said. But there was little hope without a lawyer – a cost she couldn’t pay. Martinez’s immigration documents stated that he was schizophrenic and on medication.

 

The attorneys working on the class-action suit brought Martinez to the attention of the federal district court in August 2010. In addition to his immigration documents stating his condition, the lawyers requested an evaluation, which concluded that Martinez “is clearly not competent to represent himself. His illness precludes a capacity to conceptualize ideas and verbally advocate a defense in his removal proceedings.”

In September 2010, an immigration judge ordered the termination of his deportation case and sent it to the Board of Immigration Appeals. In her decision, Judge Renee Renner said: “The current law and regulations offer little guidance as to how the court should proceed … with a mentally incompetent detainee who is representing himself in his removal proceedings.”

It was relatively good news that his case was terminated, but Martinez continued to linger in detention as his case remained pending before the appeals board. Renner did not appoint him a lawyer. But with the help of the pro bono team that had identified him in detention, Martinez was able to receive a bond hearing.

In April, Felipe was anxiously waiting to see Martinez outside the detention center for the first time in two years. He had been released from Otay Mesa with a $1,500 bond on the condition that he be evaluated and placed in the care of a mental health facility.

Martinez was taken to an urgent care center in Los Angeles to receive his evaluation. A mental health professional determined that he needed to be hospitalized and found a bed for him at Gateways Hospital and Mental Health Center.

Felipe had to come up with bail that same day – and it was already the afternoon – or her son would be taken back to San Diego. She scrambled to the bail office and was told that it was closed. Then the pro bono team arrived.

As she prepared to see her son, her eyes filled with tears. “I don’t know what I’m going to tell him,” she said. “When I saw him at the detention center, I became so sad. Now I feel my heart is a little more at peace. He is not in a detention center – he is in a different place.”

A week after Martinez’s release from detention, Miguel Canto-Ortiz also was released. But without a lawyer and without family to help him, he was sent to a homeless shelter. The next day, he was nowhere to be found. The Mexican Consulate and a few pro bono attorneys continue to look for him in the streets of Santa Ana.

**Correction: This story originally reported that Juan Sepulveda-Perez remained in detention. He was released Dec. 22.

This story was edited by Robert Salladay and copy edited by Nikki Frick.

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Feds circumvent state on immigration fingerprint checks

Federal officials have ended agreements with California and 40 other states that had been the backbone of controversial immigration fingerprint checks in local jails.

Instead, U.S. Immigration and Customs Enforcement contends it does not need states’ permission to operate the Secure Communities program nationwide.

The move comes after three states – Massachusetts, Illinois and New York – withdrew from the program, which checks arrestees’ residency status using fingerprint data. California could join that list should AB 1081 pass the state Senate this month and receive the governor’s signature.

However, if ICE’s legal reasoning holds up, the legislation is irrelevant as written.

The bill’s central provision would void California’s pact with the federal agency; meanwhile, ICE already has taken care of that.

“This change will have no effect on the operation of Secure Communities in your state,” John Morton, director of the immigration enforcement agency, wrote in a letter to state governors last week. “ICE will continue to operate Secure Communities for jurisdictions where it is already deployed and will continue to activate the program for new jurisdictions.”

Jails in all 58 of California’s counties already send biometric data to federal agents.

The program ostensibly targets illegal immigrants who have been convicted of serious offenses.

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Sonoma County sheriff to limit involvement in immigration cases

An agreement [PDF] announced yesterday by the American Civil Liberties Union limits the involvement of the Sonoma County Sheriff's Office in enforcing federal immigration laws.

In a lawsuit filed in September 2008 on behalf of the Committee for Immigrant Rights of Sonoma County and three individuals, the ACLU argued the sheriff's office and U.S. Immigration and Customs Enforcement went beyond their authority to detain Latino immigrants, many of whom had not been arrested on criminal charges.

The lawsuit originally focused on ICE’s practice of issuing immigrant detainers – 48-hour holds on suspected illegal immigrants – without criminal charges. ICE issued a policy clarification last August saying detainers were meant only for individuals already being held on criminal charges.

“In some ways, many of the goals of the case were achieved even before the settlement, when ICE issued a policy … really ending the use of immigration detainers to put people into custody without any previous charges,” said Julia Harumi Mass, lead lawyer for the ACLU.

The Sonoma County sheriff could not be reached for comment.

The current settlement addresses other parts of the lawsuit, including when the sheriff's office should provide ICE with information on detained immigrants and collaborate on enforcement operations.

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Bill to opt out of immigration fingerprinting advances

A bill that would remove California’s counties from federal immigration fingerprint checks easily advanced in the state Senate this week.

The Public Safety Committee on Monday voted 5-2 in support of AB 1081, legislation intended to make California the fourth state to opt out of U.S. Immigrations and Customs Enforcement’s Secure Communities program.

Jails in all 58 of California’s counties are participating in the fingerprint program, many of them willingly. However, the fingerprint program has drawn significant criticism for how U.S. Immigration and Customs Enforcement has implemented the checks, and for who is being deported as a result.

Secure Communities allows local police at county jails to check inmates’ residency status by running their fingerprints. When the biometric database makes a match, officers learn a suspect’s documented immigration history and whether federal officials are placing a “hold” on the suspect.

The state Assembly passed the bill May 26. Should the legislation pass a vote by the full Senate – and then receive Gov. Jerry Brown’s signature – California would join New York, Massachusetts and Illinois in leaving the federal program.

The governor's support, however, is far from assured.

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Lacking path to citizenship, in-state tuition law falls short

The California Supreme Court ruling yesterday upholding a law allowing some unauthorized immigrants to pay in-state tuition at California's public universities represents just a small step toward integrating them into the mainstream of American society. 

One reason is that even though the law will make it easier for young people who are not authorized to be in the United States to attend college, it does not provide a path to citizenship – something only the federal government can do.

And with a divided Congress and a House of Representatives controlled by Republicans, the likelihood of Congress approving comprehensive immigration reform and providing a pathway to legalization is, at best, remote.

"From an integration perspective, it is a half step, not a full step," said Michael Fix, a senior vice president and director of studies at the Migration Policy Institute in Washington D.C., referring to the law AB 540, which has been under legal attack [PDF] for years. "It is hard to see how a college degree will translate into positive economic outcomes without legal status."

That's because without authorization to work in the U.S., young college graduates will have a hard time using their college qualifications to get a job that matches their skill level – if they can find a job at all.

To qualify for AB 540 status, students must have attended a California high school for at least three years and have graduated or intend to do so, among other requirements. They must also submit an affidavit pledging that they will apply for legal residence in the U.S.  

Filed under: K–12, Daily Report

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Laws on hiring illegal immigrants tough to enforce

As California's gubernatorial campaign comes to an end, the issues raised by Meg Whitman's hiring, and then firing, of an unauthorized worker as her housekeeper have yet to be resolved. 

The controversy was arguably the game changing event of the campaign as polls indicate that it appears to have shifted public opinion, especially among Latino voters, decisively in Jerry Brown's favor.

But controversies like these are likely to happen regularly in California and elsewhere, because the laws surrounding the hiring of illegal immigrants are hard to enforce and resources spent on enforcing them minimal. 

That in fact may be exactly what Congress intended when for the first time in the nation's history, it imposed fines against employers who hire illegal immigrants, even on a part-time basis, as part of the landmark 1986 Immigration Reform and Control Act.

The provision was part of a "grand compromise" between pro-immigrant advocates who successfully pushed to provide amnesty to 3.5 million illegal immigrants and immigration restrictionists who feared that the amnesty would open the floodgates to uncontrolled illegal immigration into the U.S. 

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Immigrants underrepresented in California's crime rates

During precisely the period that California experienced the biggest immigrant population increase in its history, the state also experienced a precipitous drop in crime rates, according to a report by Barry Krisberg, a renowned criminologist at UC Berkeley's School of Law.

Illegal immigrants contribute far less to crime [PDF] than some politicians would have you believe, including GOP gubernatorial candidate Meg Whitman

In fact, in counties closest to the border where you would expect to see the largest increases in crimes, there were huge drops. In San Diego County, its violent crime rate declined by 58 percent between 1991 and 2008, while in Imperial County, the violent crime rate dropped by 53 percent and serious property crime rate by 13 percent.

In Los Angeles County, which saw its foreign-born population increase by 1.2 million, violent crime dropped by 68 percent and serious property crime by 42 percent. Other Southern California counties, as well as Central Valley counties such as Kern County, experienced similar drops.

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DREAMs put on hold for half a million California immigrants

If the Senate had approved the defense authorization bill this week which included the long-debated DREAM Act, more than 500,000 young immigrants who are in California without legal authorization would have been eligible to apply for legal status, at least on a "conditional" basis. 

The Development, Relief and Education for Alien Minors Act provides a path to legalization for eligible high school students and adults who came to the United States before the age of 16 – and then at a minimum completed two years of higher education.  

But supporters, including Sen. Dick Durbin, D-Ill., vowed to bring the issue up again for a vote, so the DREAM Act could still have major ramifications for California. The defeat of the defense authorization bill was more a referendum on repeal of "don't ask, don't tell" legislation than on the DREAM Act. At least two senators – Orrin Hatch and Bob Bennett from Utah – indicated that they would have voted for the defense bill if it had not included repeal of "don't ask, don't tell."

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2 out of 3 state counties running immigration fingerprint checks

Joe Arpaio, the sheriff of Maricopa County in Arizona, regularly jokes that he should bill California Gov. Arnold Schwarzenegger for his deputies’ immigration enforcement.

Fifty-four percent of smuggled illegal immigrants apprehended in the Phoenix-area from 2006 to 2008 said they were on their way to the Golden State, arrest records show.

Implicit in Arpaio’s quip is the suggestion that California isn’t willing to undertake its own police-led crackdown on the illegal immigrant population.

That suggestion now faces a serious challenge.

Three more California counties – Kern, Kings and Madera – on Tuesday joined the U.S. Immigration and Customs Enforcement’s “Secure Communities” [PDF] program. With the additions, two-thirds of the state’s county jails are equipped with the Enforcement Case Tracking System, a central database of federal immigration records.

This database allows local police to check inmates’ legal status by running their fingerprints. When the system makes a match, officers learn of each time the suspect has applied for and received a visa or refugee status, when they’ve been deported and where from.

In years past, local police had to call ICE for verification, a process that sometimes took days.

ICE intends to install this database in every jail in the country – spurring a dramatic shift in who handles immigration enforcement, from federal agents to local officers.

California is serving as a guinea pig, along with Arizona and Texas, where the database is being used en masse.

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