Judge Grants Rare Victory for Indigent Defendants, in Immigration Cases

April 29, 2013

by Jeremy Leaming

A federal judge in Los Angeles took a step recently to bolster the nation’s indigent defense system for some undocumented immigrants. It was an all-too-rare legal action to help the most vulnerable among us, and unlikely to be celebrated by opponents of immigration reform.

But poverty in this country is not exclusive to documented Americans, neither are basic human rights. U.S. District Judge Dolly M. Gee, as Bloomberg reports, moved to address the glaring inequality when she recently ruled that three states must pay for legal counsel for mentally disabled immigrants who are detained for potential deportation.

Gee said that mentally disabled plaintiffs do not have meaningful access to the legal proceedings against them without counsel. “Plaintiffs’ ability to exercise these rights is hindered by their mental incompetency, and the provision of competent representation able to navigate the proceedings is the only means by which they may invoke these rights,” the judge ruled in José Antonio Franco-González v. Holder.

As Bloomberg noted, federal agencies took action to ensure the measure would apply nationwide.

In an April 22 statement, the Departments of Justice and Homeland Security announced “a new nationwide policy for underrepresented immigration detainees with serious mental disorders or conditions that may render them mentally incompetent to represent themselves in immigration proceedings.”  

In its landmark Gideon v. Wainwright opinion, the Supreme Court ruled that criminal defendants have a constitutional right, secured by the Sixth and Fourteenth Amendments, to legal representation even if they cannot afford it. During a recent symposium sponsored by the Harvard Law & Policy Review and ACS, UNC Law School Professor Gene Nichol argued that one of the legal system’s greatest failures, which mirror the nation’s overall treatment of the poor, is its ongoing inability to provide the most vulnerable among us competent legal help even in civil matters.

In the case regarding José Antonio Franco-González, immigration authorities argued that the right to counsel does not apply to undocumented immigrants including their children who are born here.

Alliance for Justice reports that González, 33, is so mentally incapacitated he cannot tell time or remember his age was helped by the intervention of Public Counsel and the ACLU’s Immigrants’ Rights Project, which lodged a class-action on behalf of González and other similarly situated undocumented immigrants.

AFJ notes the immigration reform measure now before Congress would extend the right to counsel to children born in the United States to undocumented immigrants. AFJ reiterates, “Yes, right now, indigent children must defend themselves in immigration court.”

As Nichol stated in his address before the Harvard symposium the nation’s courts, including the Supreme Court, have increasingly become too helpful to the nation’s more powerful, particularly corporations.  There are exceptions, Judge Gee is one.