Lawyers representing undocumented immigrants detained by ICE allege that courts and government authorities under the Trump administration are not complying with a federal court order that protects mentally disabled immigrants in California, Arizona and Washington.
The order, established in 2013 after a class-action lawsuit known as Franco-Gonzalez, applies to detained immigrants who suffer from serious mental illnesses or disabilities — such as bipolar disorder and autism — by providing them free access to counsel. U.S. Immigration and Customs Enforcement is required to flag individuals who show symptoms, and those immigrants then go before a judge for a competency hearing to determine if they qualify for protections.
But immigration judges are granting these protections to fewer people, and ICE is referring fewer of them to the courts, attorneys say. That is forcing perhaps hundreds of disabled and mentally ill immigrants to represent themselves in court even though they are unfit to do so, putting them at risk of being deported without due process.
There are no publicly available statistics on the number of immigrants deemed incompetent to represent themselves in court in recent years, and the results of individual cases are often difficult to track, according to several attorneys who handle Franco cases.
Anecdotal records of these alleged violations prompted attorneys for plaintiffs in the Franco-Gonzalez case to file a motion in U.S. District Court in Los Angeles, asking that the Department of Homeland security submit information — including data — on how it’s handling current Franco cases.
A judge granted the motion Jan. 10, saying the evidence attorneys presented is “more than adequate to raise serious questions about potential ongoing noncompliance.”
Attorneys laid out in court documents nearly a dozen cases they say are violations. They include:
• A man who was not given Franco protections until a third-party legal organization stepped in, despite several indications he was suffering from a psychotic disorder. The man, who was not identified, experienced a psychotic break while detained at the Eloy Detention Center in Arizona and reported hearing voices telling him to jump off the roof of the jail’s housing complex.
• An individual who waited seven months for Franco protections despite a reported history of schizophrenia and hallucinations.
• An individual who was ordered deported without ever receiving a competency hearing, despite a schizophrenia diagnosis and a previous stay in June 2019 in a psychiatric hospital, where he completed a criminal sentence.
The government said the allegations do not raise serious questions about their noncompliance, according to court documents. In response to arguments that diagnoses by qualified mental health providers should have prompted timely competency hearings for the detainees, the government said that “is not enough to establish class membership, rather, it must be accompanied by significant symptoms.”
Attorneys representing detained immigrants in the Bay Area say an incident that occurred in court late last year illustrates the tougher approach some judges are taking in Franco cases.
During a hearing in San Francisco on Nov. 13, attorney Kelly Wells requested a competency hearing — known formally as a Judicial Competency Inquiry — to determine whether her client, Carlos Saavedra, was eligible for Franco protections.
Judge Patrick O’Brien denied her request, despite diagnoses from two psychologists saying Saavedra, 21, has an auditory processing disorder that prevents him from comprehending complex verbal communication.
When Wells pressed the issue, O’Brien removed her from the courtroom — a highly unusual move that several attorneys and at least one judge said they have never witnessed in their careers. O’Brien later recused himself from Saavedra’s case.
“There was overwhelming, voluminous evidence that this young man suffers from a disability. And yet, the judge literally said to us, ‘I don’t have a doubt that he is competent,’” said Wells, deputy public defender for the San Francisco Public Defender’s Immigration Defense Unit, which provides pro bono legal representation to detained immigrants facing deportation.
O’Brien, a former ICE attorney who took the bench in August 2017, is not authorized to give interviews, said Kathryn Mattingly, a spokeswoman for the Executive Office of Immigration Review, an office in the Justice Department that oversees U.S. immigration courts.
“EOIR remains committed to ensuring that all who come before its courts will receive due process and a timely and fair adjudication,” Mattingly said in an email.
The Franco-Gonzalez class settlement is named after Jose Antonio Franco-Gonzalez, a Mexican immigrant with a cognitive disability who was detained in federal immigration facilities for nearly five years without a court hearing or an attorney. He sued the federal government in 2010. A settlement followed a few years later.
The court order covers only jurisdictions that fall under the U.S. Court of Appeals for the Ninth Circuit, based in San Francisco. But the government offers similar protections to mentally ill detainees in other states.
Detainees undergo a variety of screenings as soon as they’re processed into an ICE facility. If the screening shows evidence of a serious mental disorder, a mental health assessment follows within 14 days.
If ICE authorities note symptoms that would likely make an individual qualify for legal protections as a Franco class member — such as hallucinations, psychosis, traumatic brain injury, dementia or intellectual developmental delays — they’re required to notify the ICE Office of Chief Counsel, which must follow up on the notice. A judge then has three weeks to hold a competency hearing.
Not all potential class members are flagged by ICE. Attorneys and other individuals who come in contact with the detainee may also raise concerns to the government or the court.
And, if an immigration judge has a “bona fide doubt” about an immigrant’s ability to represent him or herself in court, the judge can also order mental health screenings to determine competence.
Under Franco, if an individual is deemed incompetent, the person is appointed a lawyer paid for by the U.S. government and granted bond hearings every six months, among other protections.
But medical staff in ICE facilities often underreport mental heath issues, despite previous symptoms or diagnoses, according to Valerie Zukin, an attorney with the Northern California Collaborative for Immigrant Justice. Medical records are also difficult for detainees to obtain, she said.
“We have huge concerns about what’s happening,” Zukin said. “Even if they get past that first hurdle and get a competency hearing, judges have the authority to determine whether the person is competent. They’re increasingly hesitant to find people incompetent except in the most extreme cases.”
The three-year monitoring period established by the court to ensure the government was complying with Franco ended two years ago, leaving attorneys in the dark about how these cases are playing out in court.
“After that we’ve had a couple of years where we don’t really know what’s going on,” said Ahilan Arulanantham, an attorney with the American Civil Liberties Union in Southern California who represented plaintiffs in the Franco case. “We don’t even know how many class members there are on any given day. We used to know that.”
About 1,000 class members were deemed incompetent to represent themselves between January 2015 and April 2018 due to serious mental disorders, according to attorneys for the plaintiffs.
Unlike other court judges, immigration judges fall under the executive branch, appointed by the Department of Justice.
Under a policy established in 2018, judges are required to complete 700 cases a year or risk poor performance evaluations, in an effort to diminish a backlog of 1 million immigration cases across the county.
That may be a factor in the reduction in Franco approvals, said Dana Leigh Marks, a San Francisco immigration judge for more than 30 years and former president of the National Association of Immigration Judges.
“The pressures have been unparalleled in the 33 years I’ve been an immigration judge,” said Marks, who spoke as a union member.
In the Nov. 13 court hearing in immigration court in San Francisco, Wells was acting as a “friend of the court,” when she appeared before O’Brien, meaning she was advocating on Saavedra’s behalf but was not formally his attorney at the time. She has since taken him on as a client.
The Chronicle obtained an audio recording of the hearing from the public defender’s office. After asking Saavedra three questions — how he was doing that day, if he’d found an attorney and whether he was trying to find an attorney — O’Brien said, in part, “I have no doubt as to the respondent’s competence at this point.”
Wells argued that diagnoses by two credentialed psychologists in the past seven years — the most recent in 2013 — made Saavedra eligible for legal protection. O’Brien said he did not see that as a qualified health professional making a mental health diagnosis.
“I’m sorry your honor, I don’t think your personal doubt comes into play here,” Wells said. “I believe that’s a misreading of the settlement, and frankly it gives me great concern for those individuals who don’t have the benefit of a public defender tracking their case.”
O’Brien declined to hold a competency hearing for Saavedra, saying, “I have enough experiences in these cases now where I think I can tell reasonably well that we could hold a (hearing) but this respondent is going to pass with flying colors.”
Wells told O’Brien he was forcing the Department of Homeland Security to violate Franco. She threatened to file a complaint against him.
A security guard removed her from the courtroom at O’Brien’s request. The judge said Wells was being disruptive.
Saavedra, who has been detained at the Mesa Verde Detention Facility in Bakersfield for four months, was arrested by ICE in September following convictions for DUI and possession of a controlled substance.
He was enrolled in an adult school in Roseville (Placer County) at the time of his arrest, and faces possible deportation.
He said he didn’t feel like O’Brien made an effort to listen to Wells’ arguments or to understand his case.
“I don’t think he liked her standing up for me,” Saavedra said in a December call from Mesa Verde. “I don’t think he liked that about her and he decided to do something about it.”
Tatiana Sanchez is a San Francisco Chronicle staff writer. Email: [email protected] Twitter: @TatianaYSanchez
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