Blog of Rights

Immigrants with Mental Disabilities Deserve Due Process

By Jennifer Stark, ACLU of Southern California at 10:40am

Ever Francisco Martinez-Rivas, 31, suffers from schizophrenia and hallucinations, and exhibits unexpected patterns of behavior. After getting into an argument with his stepfather that turned violent, he was taken into police custody.

Though Mr. Martinez is a lawful permanent resident of the U.S. and has lived here since the age of 9, current laws allow the federal government to deport Mr. Martinez to his birth country, El Salvador, because he lacks U.S. citizenship.

Mr. Martinez is heading to immigration court next month, to face deportation hearings in front of a judge whose instructions he is unlikely to understand. What’s missing for him and possibly thousands of other immigrants with serious mental disabilities: a federal mechanism to provide attorneys for people who are not capable of representing themselves.

This failure means Mr. Martinez will sit defenseless in a hearing to decide if he should be banished from the U.S. — before a judge whose words he cannot comprehend, without a lawyer to defend him. Is it possible for Mr. Martinez to get a fair hearing, even if throughout the proceeding he is hearing voices that he thinks are coming from a movie?

On behalf of Mr. Martinez and five other immigrants with serious mental disabilities, the ACLU of Southern California — in partnership with the ACLU's Immigrants' Rights Project, the ACLU of San Diego and several other nonprofit organizations, and law firm Sullivan & Cromwell — filed the first class action lawsuit to establish the right to appointed counsel for detained individuals with serious mental disabilities who face deportation. A recent ACLU/Human Rights Watch report noted that about 2 to 5 percent of immigration detainees are thought to have a mental disability, according to government estimates. Some of these people have disabilities so severe that they do not know their own names or understand that deportation means removal from the country.

In a suit filed in March 2010, two of the ACLU of Southern California’s clients were literally lost in the detention system for five years because they were not competent to represent themselves in court, and the immigration judges had no idea what to do with them. The problem here is that neither the Department of Homeland Security nor the Department of Justice has clear policies or procedures to protect the rights of detained noncitizens with mental disabilities. Fifty years ago, Congress specifically told the attorney general at that time, James P. McGranery, to address this problem. Mr. Martinez and thousands of others are living proof that the nation is still awaiting a solution.

Statistics image