In 2009, President Obama vowed to overhaul the nation's immigration detention system. Since then, his administration has taken some steps to deliver on that promise, such as providing detainees improved access to medical care and closing troubled facilities. But it has yet to provide the most meaningful fix: ensuring that indigent immigrants in detention have access to legal counsel.
Until now, federal courts have held that only criminal defendants are entitled to court-appointed counsel. An immigration case, even if it involves detention, is a civil matter. As a result, the vast majority of detainees, including children and the mentally ill, are forced to represent themselves in immigration court.
This month, however, a federal judge in Los Angeles could help bring some fairness to the system. U.S. District Judge Dolly Gee has been asked to decide whether to grant class-action status in a lawsuit brought on behalf of mentally disabled immigrant detainees who don't have the money to pay for legal representation. If Gee certifies the class under the Rehabilitation Act, which requires the government to accommodate people with disabilities, it could help hundreds, if not thousands, of people.
That would be a great start. But much more is needed to ensure that all detainees are afforded fair treatment under the law.
A 2011 study, headed by a federal judge, found that immigrants with lawyers are five times more likely to win their cases than those without. Put simply, an immigrant's access to an attorney can be as important as the facts in his or her case.
The only reasonable solution is to provide attorneys to those immigrant detainees who need them. It would cost, of course, but due process comes with a price. And in some cases, assigning lawyers to detainees could actually lead to savings. The government spends an average of $40,000 a year on each detainee. Providing lawyers could help screen those cases. If a detainee had no legal case or grounds for relief, his attorney could explain that to him, and he would probably agree to leave the country rather than remain in detention, sometimes for years.
More important, providing detainees with counsel could help prevent miscarriages of justice. Consider the case of Jose Antonio Franco, a mentally retarded man who faced deportation to Mexico after throwing a rock during a fight. A judge suspended his case rather than allow him to represent himself. As a result, Franco spent nearly five years in a Southern California detention center, without a hearing, because he had no attorney. He was released last year after lawyers with the American Civil Liberties Union and Public Counsel agreed to represent him.
As retired Supreme Court Justice John Paul Stevens noted in May, the need for legal representation for immigrants has grown so acute and the consequences so drastic that something must be done. Providing mentally disabled detainees court-appointed counsel is an important first step.