With his handcuffs briefly unlocked from his wrists while he faced a judge, Miguel Canto-Ortiz wore the familiar mark of a detainee: a bright orange shirt from the Santa Ana Jail. But unlike the thousands of others who have passed through this courtroom, Canto-Ortiz was without a lawyer.
On the back of his shaved head is a scar from a traumatic brain injury that rendered him unable to read, write or remember his birthday.
It was Canto-Ortiz’s deportation hearing, and U.S. District Immigration Judge David C. Anderson was testing his mental condition. The judge asked the 51-year-old detainee if he could explain what type of courtroom he was in.
“Too much problem in my head – I can’t say anything,” Canto-Ortiz mumbled in Spanish.
For the legal system and immigrant-rights attorneys, his case represents a frustrating problem without an easy answer: Immigrants with unresolved status and who have severe mental health problems – many without criminal records – have been trapped in detention in the United States without attorneys.
“These are people that are sitting in detention for years, not understanding what is happening to them,” said Talia Inlender, an attorney with Public Counsel, a pro bono law firm representing several plaintiffs in a class-action suit on behalf of mentally ill detainees in California, Arizona and Washington. “They are so mentally disabled they can’t participate in their own removal proceedings.”
The government holds, on average, more than 30,000 immigrants with unresolved status in detention on any given day. Immigration and Customs Enforcement officials do not know how many are mentally disabled, but class-action attorneys estimate as many as 1,000 immigration detainees have a “serious mental illness.”
In January 2011, Inlender and a group of pro bono law firms identified Canto-Ortiz, a native of Mexico who came to the U.S. as a child, as a potential plaintiff in the lawsuit they filed last year. It is the first class-action suit on behalf of detainees with severe mental disabilities who go through the immigration courts without access to attorneys.
The class-action lawsuit says that by denying severely mentally ill detainees the right to court-appointed attorneys, the federal government has stripped them of due process rights and violated federal anti-discrimination laws. The Immigration and Nationality Act gives non-citizens the privilege of representation, but not at the government’s expense.
On Dec. 20, Judge Dolly Gee of the U.S. District Court for the Central District of California granted the suit class-action status. She concluded that there is no mechanism for evaluating whether detainees with mental disabilities are able to represent themselves.
Government representatives would not comment on the suit. But at a hearing in Los Angeles in April of last year, Victor M. Lawrence, principal assistant director of the Justice Department’s Office of Immigration Litigation, argued that the plaintiffs had not proven “there is a significant number of people that would potentially be injured.”
The lawsuit grew out of the case of Jose Franco-Gonzalez, a mentally disabled man who pleaded guilty to assault and was detained in 2005. An immigration judge closed his deportation case because he didn’t have a lawyer and was mentally incompetent to represent himself. But he remained in detention.
During those years in detention, Franco-Gonzalez did not have a hearing. In March 2010, after Public Counsel and the American Civil Liberties Union filed a petition asking for his release, a judge released Franco-Gonzalez. For more than a year, he was monitored electronically. He is now receiving intensive mental health services as he waits for his next immigration hearing.
Pro bono attorneys later added more mentally disabled plaintiffs to their class-action complaint – eight are now part of the lawsuit. Some of them are immigrants who are here illegally; others are refugees or lawful permanent residents who faced having their legal status revoked because of criminal convictions.
In the past couple of years, Human Rights Watch and Texas Appleseed, a public interest law center, have issued reports identifying the lack of safeguards for mentally ill detainees, pointing to cases in which even American citizens were wrongly deported.
In May, with recommendations from the American Immigration Council and other lawyers groups, the Board of Immigration Appeals created guidelines for dealing with mentally ill detainees. The guidelines say a mentally competent detainee is someone who understands the nature of his or her case; can consult with an attorney or representative; and can examine adverse evidence, present favorable evidence and cross-examine government witnesses.
The board also said the Department of Homeland Security has an obligation to provide immigration judges with any relevant materials regarding an immigrant’s mental competency.
But advocacy groups and attorneys are pushing for a formal process that would include their input and create specific rules. For one, the Board of Immigration Appeals did not address immigration judges’ “lack of expertise in conducting competency assessments,” read a statement by the American Immigration Council. The board also doesn’t recommend appointing attorneys for the mentally incompetent.
The majority of detainees – roughly 60 percent – go without lawyers, according to the Department of Justice. Many are forced to represent themselves, often without adequate language skills.
“What we’re trying to do is to help get practices and procedures in place so it’s not left to an individual immigration judge or government attorney to determine the fate of a mentally incompetent detainee,” Inlender said. “We need a system in place so every detainee is getting a fair shake.”
Even holding a green card isn’t a guarantee against possible deportation. Ever Martinez was born in El Salvador and is a legal permanent resident of the U.S. In 2007, he was charged with felony assault after he got in a fight with his stepfather.
Martinez started showing signs of mental illness in his early 20s, and when his mother took him to a Los Angeles psychiatric ward, he was diagnosed with schizophrenia and placed on medication. He kept getting worse, and he was in and out of mental hospitals for several years. But Martinez had no history of violence, said his mother, Maria Elena Felipe.
That changed shortly after Martinez moved back in with his mother in 2007. In June of that year, while Felipe was at work, Martinez was arrested after getting into a fight with his stepfather, whom he knocked unconscious and who lay in a coma for 10 days.
Martinez was charged with a felony – a charge that can lead to deportation even for legal permanent residents. He was then transferred in late 2009 from criminal custody to the Otay Mesa detention center, a few miles north of the U.S.-Mexico border in San Diego.
There are 240 detainees being treated for “some form of mental illness with varying levels of severity” at Otay Mesa, said Lauren Mack, an ICE spokeswoman. The other federal center, the Krome Detention Center, is near Miami.
Felipe worried even more about what would happen to Martinez if he were deported – he would find no one in El Salvador to take care of him.
The attorneys working on the class-action suit brought Martinez to the attention of the federal district court in August 2010. In addition to his immigration documents stating his condition, the lawyers requested an evaluation, which concluded that Martinez “is clearly not competent to represent himself. His illness precludes a capacity to conceptualize ideas and verbally advocate a defense in his removal proceedings.”
In September 2010, an immigration judge ordered the termination of his deportation case and sent it to the Board of Immigration Appeals. In her decision, Judge Renee Renner said: “The current law and regulations offer little guidance as to how the court should proceed … with a mentally incompetent detainee who is representing himself in his removal proceedings.”
It was relatively good news that his case was terminated, but Martinez continued to linger in detention as his case remained pending before the appeals board. Renner did not appoint him a lawyer. But with the help of the pro bono team that had identified him in detention, Martinez was able to receive a bond hearing.
In April, Felipe was anxiously waiting to see Martinez outside the detention center for the first time in two years. He had been released from Otay Mesa with a $1,500 bond on the condition that he be evaluated and placed in the care of a mental health facility.
Martinez was taken to an urgent care center in Los Angeles to receive his evaluation. A mental health professional determined that he needed to be hospitalized and found a bed for him at Gateways Hospital and Mental Health Center.
Felipe had to come up with bail that same day – and it was already the afternoon – or her son would be taken back to San Diego. She scrambled to the bail office and was told that it was closed. Then the pro bono team arrived.
As she prepared to see her son, her eyes filled with tears. “I don’t know what I’m going to tell him,” she said. “When I saw him at the detention center, I became so sad. Now I feel my heart is a little more at peace. He is not in a detention center – he is in a different place.”
A week after Martinez’s release from detention, Miguel Canto-Ortiz also was released. But without a lawyer and without family to help him, he was sent to a homeless shelter. The next day, he was nowhere to be found. The Mexican Consulate and a few pro bono attorneys continue to look for him in the streets of Santa Ana.
Deia DeBrito reports for California Watch, part of the independent, nonprofit Center for Investigative Reporting. This story was produced in partnership with The Orange County Register. For more, visit californiawatch.org and ocregister.com/watchdog.