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.
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“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.
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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.