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Mentally Disabled Immigrants Deserve Due Process

Michael Tan,
Deputy Director,
ACLU Immigrants’ Rights Project
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May 4, 2009

Nina Bernstein’s article in today’s New York Times, “Mentally Ill and in Immigration Limbo,” exposes a particularly chilling feature of our immigration system: the lack of protections for mentally disabled individuals whom the government is seeking to deport from the United States.

Indeed, as the article notes, Ms. Jiang is luckier than most in that she is represented by counsel. There is no right to appointed counsel in immigration proceedings, and countless mentally ill persons face the prospect of deportation without counsel’s assistance. Unable to understand their proceedings or present their cases, such individuals are at great risk of being deported erroneously. And unlike in the criminal and other civil contexts, the immigration laws provide no clear procedure to determine competency or afford other basic safeguards.

The Obama administration should take immediate steps to ensure that all people are afforded the protections they deserve.

Counsel should be appointed in all immigration proceedings. But Ms. Bernstein’s article shows how counsel is uniquely needed when it comes to mentally disabled persons. The government should also create procedures for affording individuals with a competency hearing and, for the appointment of an individual who can stand in the stands in the shoes of a mentally incompetent litigant and speak for his or her interests. Immigration judges should also be given authority to terminate proceedings against mentally disabled persons where appropriate. Finally, the government should offer training programs and materials on mental health issues to all immigration judges.

Until these much needed changes come about, the ACLU Immigrants’ Rights Project will continue to advocate (PDF) to ensure that the immigration proceedings of the mentally disabled are fair. Denying mentally disabled persons due process is not what America is about.

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