Fighting to Represent Immigrants with Mental Disabilities

(This article was originally published in Huffington Post.)

Jose Antonio Franco, a 30-year-old man with a mental age of two, was facing deportation. When a judge realized he suffered from moderate retardation, couldn't understand the proceedings, and had no representative, the case came to a halt.

But because there is no system in place to find disabled detainees legal representatives, Franco ended up spending the next five years in an immigrant detention center, according to attorney Jennifer Stark.

The ACLU came upon Franco's case when someone from the Department of Homeland Security got in touch with an immigration group to find out what to do with him, Stark explained.

"To me, this highlights the very need," she said.

"We have no idea how many other Mr. Francos there are throughout the country at this point in time, and perhaps how many people are not as lucky because they've been deported," she added.

Stark is an Equal Justice Works fellow at the ACLU in Southern California, representing immigrants with mental disabilities, and currently working on a class action lawsuit, filed in November 2010, to try and establish a right to legal representation for her clients.

Some of her clients are refugees, but most are people who lived in the U.S. legally for their entire lives. When their disabilities developed, they fell through the cracks, falling into the criminal justice system, often over something minor, and facing deportation as a result. Jennifer recalls one client who ended up in detention after he developed schizophrenia and got into a fight over tomatoes.

As with Franco's case, immigration judges often realize that the disabled defendant doesn't understand the proceedings or cannot represent themselves, and close the case.

But because of the lack of procedures in place to ensure representation or establish that a detained immigrant mentally disabled, legal proceedings can be delayed for up to two years while the immigrant remains in detention.

Last December, the Southern California branch of the ACLU acted on behalf of Franco and another man, Guillermo Gomez Sanchez, 48, getting them out of detention and reuniting them with their families.

A judge eventually ruled that because the two men couldn't get a full and fair hearing without representation, the U.S. government would have to provide it for them.

"Both men have serious mental disabilities, and were at risk of being deported in the near future. This success means for both of them that they won't be returned to countries where they lack family ties and lack access to healthcare and would be at risk of exploitation and violence," said Stark.

Stark, and the team of lawyers are now working on making this law. "This class action lawsuit is a response to the fact that we can't depend on any positive legislation coming our way at any point in the future," said Stark.

"Legislative reform would be a very positive development, but we cannot proceed waiting and hoping that that will happen.

Stark, 30 said she studied law and social work, with plans for a career in international human rights. "I was very interested in how to address social justice issues in a holistic manner."

But, she ended up discovering this pressing human rights issue at home. "To me, the treatment of immigrants, particularly those who are in detention and those with disabilities is one of the most pressing human rights issues in the United States at this time."

The Equal Justice Works fellowship, she said, was a rare opportunity to be part of something momentous: "It gives young attorneys the chance to do the jobs of their dreams, right out of law school," said Stark.