By Scott Forsyth
The Daily Record Newswire
Rounding up “illegal immigrants” is all the rage this summer.
Arizona politicians stoked the frenzy when they passed a law authorizing police to detain any person suspected of being in the country illegally.
Thankfully, a federal district court last week temporarily enjoined Arizona’s finest from implementing portions of the law.
If the court had not acted, what would have happened to the people stopped in Arizona? If the police followed federal law, those people would have been turned over to Immigration and Customs Enforcement, an agency of the Department of Homeland Security.
ICE does the arresting and commences proceedings in immigration court to determine whether someone who is being held may remain in the country or be deported. In 2009 alone ICE commenced 391,829 such cases.
Politicians in Arizona primarily targeted economic migrants from Latin America who entered the state without work authorization. ICE sweeps wider, prosecuting non-citizens living legally in the country who run afoul of the law, people fleeing persecution in their homelands who seek asylum, economic migrants who overstay non-immigrant visas to seek work, and even United States citizens.
Immigration proceedings technically are civil because the court only determines the status of the person before it. Long ago, however, the Supreme Court recognized deportation to be a penalty, that could cause the loss “of all that makes life worth living.”
Consequently, “[m]eticulous care must be exercised lest the procedure by which [the non-citizen] is deprived of that liberty not meet the essential standards of fairness.” Bridges v. Wixon, 326 U.S. 135, 154 (1945).
Given the consequences, some readers might think our immigration courts might match our criminal courts in terms of due process. That is far from the case.
Take, for example, the right to counsel, guaranteed to all criminal defendants under the Fifth Amendment. No such guarantee extends to defendants in immigration proceedings. The
Immigration and Nationality Act, the law governing immigration proceedings, does allow non-citizens to have legal representation, but must pay for it or obtain it pro bono.
ICE always is represented by counsel, but 61 percent of the non-citizens it prosecutes are not.
Studies show that having a lawyer makes a difference: Asylum seekers, for one, are three to six times more likely to receive asylum with counsel than without.
Another example is a mentally disabled defendant: Estimates of non-citizens with mental disabilities in detention facing deportation start at 15 percent, and rise from there. In 2008, 15 percent equated to 57,000 people.
In New York, they do not prosecute a person who lacks the capacity to know or appreciate the nature and consequences of his conduct or that his conduct is wrong. To determine capacity, a judge may order an evaluation and, if necessary, hold a hearing. Article 730 of the Criminal Procedure Law and case law give a judge much direction on that point.
In contrast, there is a paucity of guidance for immigration judges. The Immigration and Nationality Act only directs the attorney general to provide “safeguards” for those who cannot “be present” by reason of “mental incompetency.” The Act does not address the mentally disabled who can and do physically participate in their proceedings.
Unfortunately, the attorney general has not filled the gap, defining incompetency by regulation or establishing procedures for handling the mentally disabled. An immigration judge is not required to ask a person whether he or she understands the charges against him, or even what deportation means.
As reported by the ACLU, the lack of guidance has led to proceedings in which a defendant hallucinated in court, asked to be deported “to New York” or “to Louisiana,” did not understand what the judge was asking, did not know what a judge was, could not name his birth place or what day it was, was not asked what medications he was taking and would not tell the judge about his disability out of fear the judge would use the information against him.
What is the remedy? The easy, treasury-busting answer is to treat immigration proceedings as criminal proceedings and appoint counsel for all defendants who cannot afford one. The more nuanced response begins by recognizing that non-citizens with mental disabilities present a special problem of fairness. For them, Congress should create an office similar to the federal public defender. To assist the courts, the attorney general should define incompetency and establish flexible procedures for the detention of disabled non-citizens and the adjudication of their status.
We send people all over the world to talk about the rule of law and how to reform judicial systems. We should lead by example. One place to start is in our immigration courts, our fastest growing judicial system.
Scott Forsyth is a partner in Forsyth & Forsyth and serves as counsel to the local chapter of the ACLU. He may be contacted at (585) 262-3400 or scott@forsythlawfirm.com.
