This article was published in partnership with the Marshall Project.
In contrast to President Trump's crackdown on immigration, one federal protection for immigrants has been quietly expanded in recent months: A growing number of courtrooms are providing free legal representation for detainees who have a serious mental illness or disability. As of March 2017, 21 immigration courts across the country were operating a federal program that provides lawyers to immigrants in deportation proceedings who were incapable of representing themselves, according to a spokesperson for the Executive Office for Immigration Review, the Department of Justice office in charge of immigration courts.
It's an unusual program in a system that generally does not guarantee access to an attorney. Only 14 percent of immigrants in detention have a lawyer, and judges have asserted that even toddlers are capable of appearing in court alone. Research shows that having an attorney has a significant effect on whether someone is deported. So far, more than 850 lawyers have been appointed to detainees through the program, according to EOIR.
The program began in 2013 during a federal court case, when a district judge ordered immigration courts in Washington, California, and Arizona to provide detainees with representation if they were found to be mentally incompetent. A lead plaintiff in the class-action suit, José Antonio Franco González, could not get counsel to guide him through deportation hearings despite having the cognitive ability of a two-year-old, according to some measures. His case was in limbo: He could not present his case, but there was no lawyer the court could provide him. He was held in detention for nearly five years while his case went nowhere. The Franco ruling was the first time a court found that a group of immigrants were entitled to lawyers.
The court's order only applied to the three states. But that same week, the Department of Justice announced a policy that was supposed to provide similar services nationwide. For several years, however, the program was only available in a few courtrooms outside the West Coast. That meant that many immigrants were still having to appear in court alone even if they had a serious mental disability, and risked languishing in detention for years as their case stalled.
That finally changed this year, as the program grew to include courtrooms across the country. Several other sites are planned for rollout soon, according to an Executive Office for Immigration Review spokesperson. EOIR could not say what explained the lag.
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The current program, called the National Qualified Representative Program, is being run by the Vera Institute of Justice through a contract with the Executive Office of Immigration Review. Vera in turn retains attorneys, many of whom work for immigration-advocacy groups.
"They're incredibly challenging cases," said Lauren Dasse, executive director of the nonprofit Florence Immigrant and Refugee Rights Project, which represents clients in detention centers in Arizona. "Before Franco, we heard some judges would ask attorneys to take cases, and we would take them on in-house or place them with pro bono attorneys. We can all remember those clients."
Significant gaps in protection remain. The court-appointed monitor's reports produced after the Franco case detail the ways that an immigrant with mental disabilities may still be denied an attorney. It is up to an immigration judge—and not a licensed psychologist—to determine whether someone is competent. A judge can choose to order an evaluation, but many judges rarely do. The monitor also found that the screening forms used in detention centers failed to flag every case. And it sometimes took months to identify a detainee as mentally ill.
"We're concerned people are being missed at the screening stage in detention centers. The forms at the facilities are extremely lacking," said Talia Inlender, a senior staff attorney at pro bono law firm Public Counsel and co-counsel on the Franco case. "And immigration judges who are not psychologists are making competency determinations without a medical expert. In the criminal justice system, that almost never happens."
A federal judge ruled in June to extend the monitoring of compliance with Franco for another year.
In 2015, as part of the Franco settlement, immigration authorities agreed that the protections would be retroactive for certain cases. Those with mental disabilities who had been ordered deported from those three states without counsel within a certain time frame could petition to reopen their case—if they could be found, notified, and walked through the legal process.
A version of this article was originally published by the Marshall Project, a nonprofit news organization that covers the US criminal justice system. Sign up for the newsletter, or follow the Marshall Project on Facebook or Twitter.