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For the first reported instance, a court has ruled that the government is required to provide legal representation to someone facing deportation. A Californian Federal judge has ordered immigration courts in three states to provide legal representation specifically for immigrants with mental disabilities who are in detention and facing deportation.

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How the ruling came about

A 2010 class action lawsuit brought by the American Civil Liberties Union was heard last week by Judge Dolly M. Gee who made the decision to require the government to provide legal representation. Jose Antonio Franco Gonzalez is one of the plaintiffs in the case who sued. Franco Gonzalez is an immigrant who was detained for more than five years after his deportation case closed. He has severe mental retardation which prevented him from arguing for himself in court and not fully understanding the situation. Others who have a mental disability and were not capable of representing themselves in court joined the class action and may now benefit from the decision.

Ruling creates a new policy

Federal immigration officials issued a new policy that would expand the California ruling nationwide. This practice would expand to all states “making government-paid legal representation available to people with mental disabilities in immigration courts in every state.” The Justice Department has broadly accepted the new approach ordered by Judge Gee. The new practice represents a significant expansion of protections for individuals who must appear before immigrant courts. Unlike the criminal courts, immigrants who are facing deportation do not have the right to a lawyer provided by the government if they cannot afford one. Children, people with mental disabilities and those unaccompanied by family members are left to represent themselves in court to fight deportation before immigration judges. Laura L. Lichter, president of the American Immigration Lawyers Association commented, “It is the first step in recognizing that, given the complexity of our immigration laws, it is not appropriate to force a vulnerable population through the system without appointed counsel.”

What happens next

Judge Gee has already ordered three states-Arizona, California and Washington- to immediately offer bail hearings for immigrants with mental disabilities who have been detained for over six months.  She says her order must be implemented immediately to prevent “prolonged detention without adequate representation” for immigrants who could not “fairly participate in removal proceedings.” Those who need representation will be able to get it from lawyers, students participating in law school clinics or by paralegals. Estimates show this would give a voice to thousands a year and will soon be available in all 50 states.

We will wait to see how this decision plays out in the Kansas City, Missouri immigration court.

If you have questions regarding the new immigration reform, applying for a visa or the changing immigration laws, contact us at 314-961-8200 or visit our contact page.


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