Maria Elena Felipe sat in the viewing area of a San Diego immigration courtroom growing frustrated as she watched her son struggle to answer questions. She couldn't help him. Ever Martinez Rivas, 32, was 29 miles away, in a detention center, his image appearing on a large video screen in the front of the room.
At each question from a judge, Martinez stared blankly and stayed silent for long periods, she recalled. At one point, the judge asked Martinez if he understood what she was saying. There was a long pause. No, he said. Eventually, Felipe interrupted.
"I asked the judge if she would allow me to speak," Felipe said in Spanish. "I said, 'You all know that he's sick.' "
Felipe gave the judge Martinez's medical records, which showed that he had been in and out of hospitals and treatment centers since he was diagnosed with depression and schizophrenia at 18. The judge postponed the June 2010 hearing for the sixth time in seven months, and Martinez returned to detention.
Immigrant advocates say there are hundreds of mentally ill immigration defendants such as Martinez, left to fend for themselves without any meaningful protections in court. As with Martinez, their cases are delayed repeatedly while immigration judges struggle to deal with them fairly.
A recently certified federal class action suit, filed by the American Civil Liberties Union, the Los Angeles-based pro bono law firm Public Counsel and other advocacy groups, seeks to address the issue by compelling the government to provide competency hearings, lawyers and bond hearings for defendants such as Martinez.
The plaintiffs are eight men with mental disorders such as mild retardation and paranoid schizophrenia who were held in detention for several months. Notices looking for others were ordered posted late last year at detention centers and sent to immigration agents and judges across California, Washington and Arizona.
"The overwhelming majority" of those with severe mental disabilities "will never get a fair hearing without an attorney being present to represent them," said Ahilan Arulanantham, an attorney for the ACLU.
Immigration officials say they have worked diligently to improve mental health care for detainees. Several major changes are pending, including opening intermediate care facilities for the mentally ill and providing full-time mental health services in all facilities.
But the Department of Justice, which oversees immigration courts, says detainees are entitled to be represented by a lawyer only at no expense to the government. If an incompetent person cannot represent himself before the court, a family member or close friend may help with proceedings.
Martinez fell into the hands of the nation's toughened immigration enforcement in 2008, when he was convicted of battery for beating his stepfather. After serving his sentence, he was tagged for deportation and transferred to an immigration facility in San Diego.
Immigration officials identified his illness upon his arrival in 2009, and he was treated with risperidone, an antipsychotic medication, while he was in custody. Still, "nobody communicated to the court his diagnosis or how that affected his competency," said Talia Inlender, an attorney for Public Counsel, which represents him as part of the suit.
Gillian Christensen, a spokeswoman for U.S. Immigration and Customs Enforcement, said agents provide such information to the court in the form of written motions or evidentiary filings when the information is relevant to their court proceedings. She declined to talk specifically about Martinez's case.
The judge, Renee L. Renner, had noticed in earlier hearings that Martinez was slow to answer questions and repeatedly recommended that he get a lawyer. But he couldn't afford one and wasn't able to find one who would work for free.
After reviewing the records provided by his mother and documents provided by immigration officials, Renner said it was clear that Martinez was mentally incompetent and unable to understand what was going on in court. She terminated his removal proceedings, meaning that he would be spared deportation. The judge expressed frustration with a lack of guidelines for dealing with detainees such as Martinez.
"The Attorney General has provided little guidance regarding steps to take to protect the rights and privileges of the alien," Renner wrote in her decision. "Immigration case law has also failed to adequately address what such steps are to be taken for an incompetent, pro se, alien in removal proceedings."
Martinez was released in April after a bond hearing ordered by the federal judge overseeing the class action suit. He now lives in Los Angeles at an assisted living home for the mentally ill, where, his mother says, his condition has improved. He can hold a conversation and has been able to make short visits home, she said.
Whether her son will be allowed to remain in the country is unknown. Immigration officials appealed the decision to terminate his proceedings. The judge asked the Board of Immigration Appeals to review the case.
The federal judge overseeing the class action suit has ordered the government to find a lawyer to represent Martinez on appeal.