New America Media, News Report, Anuja Seith , Posted: Jul 26, 2010

Jose Antonio Franco suffered from intellectual disabilities. He didn't know his own age and could not make a phone call.  Guillermo Gomez-Sanchez had been diagnosed with paranoid schizophrenia.

For nearly five years, both men languished in immigration holding cells, overlooked by the immigration system as their mental conditions worsened. They were essentially lost in detention.

Tens of thousands of mentally disabled people are caught up in the U.S. immigration system each year, with little or no legal assistance, inadequate medical and mental health care, and only the vaguest understanding of the proceedings against them, according to a new report by Human Rights Watch and the American Civil Liberties Union (ACLU).

Gonzalez and Gomez-Sanchez have since been released, thanks to the efforts of the ACLU, but their cases, along with those of many other immigrants, are still pending. The report, “Deportation by Default,” estimates that at least 15 percent of detainees—around 57,000 people in 2008— have a mental disability.

The authors cite a number of shortcomings in the handling of mentally impaired immigrants, including no right to court-appointed counsel. Some 61 percent of all people going through the U.S. immigration proceedings end up being without lawyers said Sarah Mehta, one of the report’s authors.

Other problems include inflexible detention policies and inadequate guidelines for judges, who often respond by placing detainees in a kind of indefinite legal limbo.

The report found many immigrants who could not understand basic questions, such as their name or what country they were from, much less the complicated deportation proceedings against them.

“The situation of [Gonzalez and Gomez-Sanchez] highlights the harm caused by [the U.S. Department of Homeland Security’s] failure to develop any clear procedure or policy to deal with people with mental disabilities,” says Jennifer Stark, an attorney at the ACLU of Southern California.

The vast majority of mentally impaired detainees are non-citizens, including asylum seekers, economic immigrants who overstayed their visas, and undocumented immigrants arrested by Immigrations and Customs Enforcement (ICE). Others may end up in ICE custody through local law enforcement programs such as Secure Communities or Criminal Alien Program.

But Human Rights Watch said some U.S. citizens have also languished in ICE custody and even been deported because they could not defend themselves or present their claims effectively.

The new report urges Congress to require appointment of lawyers for all people with disabilities in immigration courts. And it recommends compulsory training for all judges so they can recognize mental disabilities.

The report also calls for a repeal of a regulation allowing a mentally disabled detainee to be represented in court by the warden of the detention cell.

Mental disabilities among detainees range from depression and anxiety to psychotic disorders and low I.Q.

“The biggest challenge is insufficient safeguards to identify a person who is suffering from a mental illness, and even if a person is identified, there is not enough medical care available,” says Brittney Nystrom, director of Policy and Legal Affairs with the National Immigration Forum. “Many of these detainees are held in local county jails that are not equipped to handle detainees with mental health conditions.”

Another report this year, “Justice for Immigration’s Hidden Population,” by the nonprofit Texas Appleseed, noted that although immigration detention is not intended to punish, but rather to ensure a detainee’s attendance at court proceedings and eventual deportation if ordered, many detainees are held in penal facilities, where they are “often treated like criminals.”

Another problem, says Nystrom, is that there is no clear definition about how to determine whether someone is competent to participate in their deportation proceedings.

The intricacies of the immigration system are confusing for any detainee, but particularly perplexing for those with mental problems. What’s more, the isolation and stress of detention, and the frequent shunting from facility to facility, often cause a detainee’s mental condition to erode.

While the U.S. criminal justice system recognizes that it is unfair to prosecute a person who cannot understand the case against him or her, the immigration courts have no such protections in place, Human Rights Watch reported.

“Owing to their mental disability, people may not be able to share their experience with the judge in a way that helps him understand that they have a mental condition or a valid claim,” says Deborah Fowler, Texas Appleseed’s legal director. “This is particularly true for asylum seekers who have suffered trauma or persecution in their home countries.”

Ironically, Fowler added, protections that do exist for detainees tend to be so broad that judges often seem to struggle with how to use them in a court setting. Sometimes judges throw up their hands and issue delay in the case, or order it to be administratively closed.

But administratively closing a case—that is, putting it on hold so that a detainee can find an attorney or undergo a competency evaluation—may result in prolonged or even indefinite detention, Mehta adds. What’s more, because judges have no authority to appoint lawyers, there is no guarantee that the new hearing will have any additional safeguards.