In January 2017, SGG accepted two cases from the Ninth Circuit’s pro bono program involving detainees whose mental competency to represent themselves in immigration proceedings was in question. SGG Attorneys Amy Lenhert, Helen A. Sklar, and Taiyyeba Skomra worked together on these cases, and we are pleased to report that we won both.
After Thanksgiving, one week before SGG was scheduled for oral arguments in both cases, the Department of Justice asked if SGG would join them in a motion to remand (send back down) one case to the Board of Immigration Appeals. SGG agreed after ensuring that the case would also be sent further down to the Immigration Court. Our client will finally receive a competency inquiry to determine if a qualified representative should be appointed to represent him, and another chance to prove if he merits relief from removal.
On January 3, 2018, the Ninth Circuit published a decision granting our petition in the second case, and remanding it for a proper competency hearing. The court found that the Immigration Judge (IJ) erred by relying largely on a mental health report that was almost a year old, and failing to consider the evidence that confirmed there were more recent medical records. The Board of Immigration Appeals (BIA) abused its discretion by affirming the Immigration Judge’s finding of competency, and the Department of Homeland Security (DHS) failed to meet its obligation to provide the additional medical records in its possession for the detainee. The decision is available at: http://cdn.ca9.uscourts.gov/datastore/opinions/2018/01/03/16-70225.pdf
According to the American Immigration Council, “only 14 percent of detained immigrants acquired legal counsel,” and detainees with counsel “were twice as likely as unrepresented immigrants to obtain immigration relief if they sought it.” In 2016 alone, DHS detained 352,882 individuals. Mental illness affects many of these detainees – DHS statistics for FY 2015 show it provided 90,276 “mental health interventions” to immigrants in detention. For more information on detained immigrants, click here.
This area of mental competency in immigration proceedings is rather fresh and developing, and it is very exciting to be involved with a positive interpretation and application of the law, holding the BIA, IJ, and DHS to their obligations. SGG is also proud to be a part of the effort to give a voice to detainees with mental illnesses, who “aside from the voices inside their heads…are for all intents and purposes voiceless.” Franco-Gonzales v. Holder, 767 F. Supp.2d 1034, 1048 (C.D. Cal. 2010) [Immigrant detainees with severe mental illness are entitled to appointment of counsel in removal proceedings].