UNITED STATES DISTRICT COURT

Transcription

1 Ý» îæïðó½ªóðîîïïóüóù óüìþ ܱ½«³»² íçèóï Ú»¼ ðéñðçñïî Ð ¹» ï ±º ìï Ð ¹» Ü ýæèððï 0 0 AHILAN T. ARULANANTHAM (State Bar No. aarulanantham@aclu-sc.org MARISOL ORIHUELA (State Bar No. morihuela@aclu-sc.org ACLU FOUNDATION OF SOUTHERN CALIFORNIA West th Street Los Angeles, California 00 Telephone: ( - Facsimile: ( - MICHAEL H. STEINBERG (State Bar No. steinbergm@sullcrom.com SULLIVAN & CROMWELL LLP Century Park East, Suite 00 Los Angeles, California 00- Telephone: (0-00 Facsimile: (0-00 Attorneys for Plaintiffs-Petitioners (Additional Counsel for Plaintiffs on Following Page JOSE ANTONIO FRANCO- GONZALEZ, et al., Plaintiffs-Petitioners, v. ERIC H. HOLDER, Jr., Attorney General, et al., UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA Defendants-Respondents. Case No. 0-CV-0 DMG (DTBx PLAINTIFFS MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT Honorable Dolly M. Gee Hearing Date: August, 0 Hearing Time: :00 p.m.

2 Ý» îæïðó½ªóðîîïïóüóù óüìþ ܱ½«³»² íçèóï Ú»¼ ðéñðçñïî Ð ¹» î ±º ìï Ð ¹» Ü ýæèððî 0 0 JUDY LONDON (State Bar No. jlondon@publiccounsel.org TALIA INLENDER (State Bar No. tinlender@publiccounsel.org PUBLIC COUNSEL 0 South Ardmore Avenue Los Angeles, California 000 Telephone: ( Facsimile: ( -0 JUDY RABINOVITZ (State Bar No. JR- JRabinovitz@aclu.org ACLU IMMIGRANTS RIGHTS PROJECT Broad Street, th Floor New York, New York Telephone: ( - Facsimile: ( - DAVID LOY (State Bar No. dblairloy@aclusandiego.org SEAN RIORDAN (State Bar No. sriordan@aclusandiego.org ACLU OF SAN DIEGO & IMPERIAL COUNTIES P.O. Box San Diego, California Telephone: ( - Facsimile: ( -00 JAMES PREIS (State Bar No. 0 jpreis@mhas-la.org MENTAL HEALTH ADVOCACY SERVICES Wilshire Boulevard, Suite 0 Los Angeles, California 000 Telephone: ( -0 Facsimile: ( - MATT ADAMS (State Bar No. matt@nwirp.org RIDDHI MUKHOPADHYAY riddhi@nwirp.org NORTHWEST IMMIGRANT RIGHTS PROJECT nd Avenue, Suite 00 Seattle, Washington 0- Telephone: (0 - Facsimile: (0-0 JAMES LYALL (State Bar No. 00 jlyall@acluaz.org ACLU FOUNDATION OF ARIZONA 0 N. th Street, Suite Phoenix, Arizona 0 Telephone: (0-00 Facsimile: (0 0- Attorneys for Plaintiffs-Petitioners

3 Ý» îæïðó½ªóðîîïïóüóù óüìþ ܱ½«³»² íçèóï Ú»¼ ðéñðçñïî Ð ¹» í ±º ìï Ð ¹» Ü ýæèððí 0 0 TABLE OF CONTENTS INTRODUCTION UNCONTROVERTED FACTS ARGUMENT I. THE REHABILITATION ACT REQUIRES LEGAL REPRESENTATION AS A REASONABLE ACCOMMODATION FOR INDIVIDUALS WHO ARE NOT COMPETENT TO REPRESENT THEMSELVES BY VIRTUE OF THEIR MENTAL DISABILITIES II. A. Plaintiffs Have Established a Prima Facie Case Under the Rehabilitation Act B. Defendants are Required to Provide Legal Representation as a Reasonable Accomodation C. Matter of M-A-M- Does Not Provide Safeguards that Constitute Reasonable Accomodations THE IMMIGRATION AND NATIONALITY ACT AND THE DUE PROCESS CLAUSE REQUIRE THE APPOINTMENT OF COUNSEL FOR UNREPRESENTED NON-CITIZENS WHOSE SERIOUS MENTAL DISABILITIES RENDER THEM INCOMPETENT TO REPRESENT THEMSELVES A. The Fair Hearing Requirement Requires Legal Representation..... All Non-Citizens, Including Those with Serious Mental Disabilities, Have a Right to a Fair Hearing Non-Citizens Whose Serious Mental Disabilities Render Them Incompetent to Represent Themselves Cannot Receive a Fair Hearing Without Counsel B. Even were Appointed Counsel Not Required to Ensure a Fair Hearing, the Important Interests at Stake Would Entitle Plaintiffs to Appointed Counsel Plaintiffs' Private Interest is Clearly Substantial The Risk of Error from Failure to Appoint Counsel is Significant The Government's Interest in Barring Appointment of Counsel is Not Significant i

4 Ý» îæïðó½ªóðîîïïóüóù óüìþ ܱ½«³»² íçèóï Ú»¼ ðéñðçñïî Ð ¹» ì ±º ìï Ð ¹» Ü ýæèððì 0 0 III. THE IMMIGRATION STATUTES, DUE PROCESS CLAUSE, AND REHABILITATION ACT ALL REQUIRE THE PROVISION OF RIGOROUS BOND HEARINGS FOR THOSE CLASS MEMBERS WHO HAVE BEEN DETAINED FOR MORE THAN SIX MONTHS CONCLUSION ii

5 Ý» îæïðó½ªóðîîïïóüóù óüìþ ܱ½«³»² íçèóï Ú»¼ ðéñðçñïî Ð ¹» ï𠱺 ìï Ð ¹» Ü ýæèðïð 0 0 INTRODUCTION Despite this Court s clear rulings in three separate preliminary injunction orders (from which Defendants never appealed, Defendants still refuse to adopt any binding legal rules requiring either legal representation for individuals who are not competent to represent themselves due to a serious mental disability (Subclass One members, or bond hearings for those whose cases are delayed due to their mental disabilities and remain detained for more than six months (Subclass Two members. To prevent further unlawful detention and deportation in derogation of the legal rules set forth in this Court s prior orders, Plaintiffs now move for partial summary judgment on behalf of Named Plaintiffs Martinez, Khukhryanhskiy, Chavez, and Zhalezny, and therefore seek relief for Subclass One members on Counts - (right to appointed counsel. Plaintiffs also move for partial summary judgment on behalf of Named Plaintiffs Martinez, Khukhryanskiy, Zhalezny, and Sepulveda, and therefore seek relief on behalf of all Subclass Two members on Counts -0 (right to detention hearing. UNCONTROVERTED FACTS In this Motion, there are but three important facts. Fact No. : the Although Plaintiffs are not moving for summary judgment on the competency evaluation claims at this time, they do not believe that the competency determination system that Defendants now employ satisfies either statutory or constitutional requirements. To the contrary, Defendants failed to provide timely evaluations to any of the Named Representatives. SUF #, # 0, #. Even worse, after this Class was certified, Defendants appear to have abandoned competency evaluations altogether (perhaps to avoid identifying more Subclass One members. Plaintiffs continue to dispute both that Matter of M-A-M- adequately addresses the definition of pro se competency and that it provides accurate procedures to determine who is incompetent to proceed pro se. Because those issues may benefit from further development through the discovery process, Plaintiffs do not seek resolution of them at this time.

6 Ý» îæïðó½ªóðîîïïóüóù óüìþ ܱ½«³»² íçèóï Ú»¼ ðéñðçñïî Ð ¹» ïï ±º ìï Ð ¹» Ü ýæèðïï 0 0 Government detains and places into removal proceedings individuals who are not competent to represent themselves by reason of a serious mental disorder or defect, as they did with Subclass One Representatives Martinez, Khukhryanskiy, Zhalezny, and Chavez. Fact No. : the Government imposes on itself no legal obligation to provide representation for such individuals in their immigration proceedings. Fact No. : the Government detains Subclass Two members, such as Representatives Martinez, Khukhryanskiy, Zhalezny, and Sepulveda, for more than six months without providing bond hearings where it must show by clear and convincing evidence that any further detention is justified (a Casas hearing. No genuine dispute can exist as to any of these three basic facts: Fact No. : There can be no serious dispute that Defendants detain for removal proceedings individuals who are not competent to represent themselves. Were more detail needed, this Court has already described the facts surrounding the Subclass One Representatives cases and deemed them typical for purposes of class certification. Therefore, Plaintiffs incorporate the factual descriptions concerning those Plaintiffs Martinez, Khukhryanskiy, Zhalezny and Chavez as set forth in the Court s prior preliminary injunction orders, Dkt. 0; and the Court s order granting class certification. Dkt.. See generally Statement of Uncontroverted Facts (hereinafter, SUF (filed concurrently with this Motion. As discussed at length in the Court s prior orders, these Subclass One Representatives, like members of the subclass they represent, suffer from serious mental disorders or defects that render them incompetent to represent For ease of reference, Plaintiffs have re-attached to this Motion any exhibit referenced herein, even if that exhibit was previously submitted. Plaintiffs, however, have preserved the original exhibit numbering to ensure that Plaintiffs exhibits in the case remain continuously numbered.

7 Ý» îæïðó½ªóðîîïïóüóù óüìþ ܱ½«³»² íçèóï Ú»¼ ðéñðçñïî Ð ¹» ïî ±º ìï Ð ¹» Ü ýæèðïî 0 0 themselves in removal proceedings. In Mr. Khukhryanskiy s case, Dr. Barrett, a clinical professor of psychology with twenty years of experience, determined that Mr. Khukhryanskiy (i was unable to represent himself because, due to his mental disability, he (ii did not understand the proceedings against him, (iii did not understand the role of the judge or the court process, (iv was neither rational nor logical, and (v did not have an understanding of his own history or the facts of his case. See SUF #. In Mr. Martinez s case, Dr. Robert Burchuk, M.D., a member of the Expert Panel of the Los Angeles Superior Court, concluded that [h]e is clearly not competent to represent himself. As Dr. Burchuk explained, Mr. Martinez s mental disability precludes him from participating in and rationally understanding the proceedings against him in order to represent himself. SUF #. With respect to Mr. Zhalezny, Dr. Jessica Ferranti, M.D., an Assistant Clinical Professor of Psychiatry at U.C. Davis, concluded that Mr. Zhalezny was unable to understand the nature of the immigration proceedings or the charges against him, and he was unable to represent himself in his immigration hearings. SUF #; see also Dkt. at (describing Plaintiff Zhalezny s lack of contact with reality, including due to his belief that the lights in the jail are killing him. Finally, Mr. Chavez has spent a significant portion of the past 0 years in mental hospitals, and was found incompetent to stand trial in a criminal proceeding in 00. SUF #. Dr. David C. Stone, M.D., concluded that Mr. Chavez s chronic paranoid schizophrenia, which caused him to suffer from auditory hallucinations, persecutory delusions, and suicidal ideations, renders him incompetent to represent himself in immigration proceedings. SUF #. Even today, Mr. Chavez remains in a secure mental hospital, but DHS has reserved the right to re-initiate removal proceedings against him at any time. SUF #. Further disclosures provided by the Government since this Court

8 Ý» îæïðó½ªóðîîïïóüóù óüìþ ܱ½«³»² íçèóï Ú»¼ ðéñðçñïî Ð ¹» ïí ±º ìï Ð ¹» Ü ýæèðïí 0 0 granted class certification demonstrate that the Government continues to detain Subclass One members for removal proceedings. Since March, 0, when the parties agreed to modify this Court s order requiring notice, see Dkt. 0, Defendants have produced eight sets of information to Plaintiffs that specifically identified individuals determined to be Subclass One members under the Government s current competency determination system. SUF #. In those eight lists, Defendants have identified individuals as Subclass One members. SUF #. That identification has included Subclass One members whose cases are pending before an Immigration Judge, SUF #, as well as at least one Subclass One member whose case is pending before the BIA, SUF #0. Incredibly, in November 0, one Subclass One member was found incompetent to proceed pro se by the Immigration Judge, ordered deported, and thereafter forced to file an appeal on his own. SUF #,. Fact No. : The Government recognizes no legally binding rule requiring that Subclass One members receive legal representation. This fact is amply confirmed in the discovery produced by Defendants concerning their rules and policies with respect to class members, which it has been legally obligated to update for months. No document provided by the Government describes any policy, let alone a legally binding one, to provide legal representation to those who are not competent to represent themselves. In fact, the Government has conceded that it has no such policy. SUF #. Mr. Zotov s case sadly highlights yet again the importance of legal representation, as Mr. Zotov s written notice of appeal presents no recognizable legal argument in his defense. SUF #. While the Government still refuses to provide the required assistance, Plaintiffs need establish only that the government recognized no such legal rule at the time of the filing of the complaint. See White v. Lee, F.d, (th Cir. 000 ( Standing is examined at the commencement of litigation. (quotation marks and citation omitted.

9 Ý» îæïðó½ªóðîîïïóüóù óüìþ ܱ½«³»² íçèóï Ú»¼ ðéñðçñïî Ð ¹» ïì ±º ìï Ð ¹» Ü ýæèðïì 0 0 Even absent the Government s binding concession, the Named Representatives histories underscore how the systematic absence of any policy palpably violates the statutory and constitutional rights of Subclass One members. Despite overwhelming evidence that the Named Representatives were not competent to represent themselves, each of them would have been forced to proceed pro se in their removal proceedings absent the relief this Court granted. Incredibly, at the time of this Court s orders, Mr. Martinez and Mr. Khukhryanskiy were each obligated to defend themselves on appeal before the Board, while Mr. Zhalezny was forced to do so before the immigration court. SUF #, #, #. Again, the Government s post-certification disclosures confirm that the Government systematically fails to provide legal representation to Subclass One members. Since the Court issued its preliminary injunction orders, the Government has refused to provide Subclass One members with the basic protections that Plaintiffs seek (and that this Court granted to Plaintiffs Martinez, Khukhryanskiy and Zhalezny in the preliminary injunction orders. Whatever changes the Government has made since Plaintiffs filed this lawsuit, those changes have failed to bring the Government into compliance with applicable statutory and constitutional requirements. Of the individuals identified by Defendants as Subclass One members since March, 0, Defendants have confirmed having arranged legal representation for only one person. SUF #. Plaintiffs have dutifully written to Defendants seeking to protect the Subclass One members The only exception is Mr. Chavez, whose case had been administratively closed at the time this Court certified the class. However, he had previously been scheduled to appear pro se (despite being hospitalized, and DHS retains the right to re-initiate removal proceedings against him at any time. SUF #.

10 Ý» îæïðó½ªóðîîïïóüóù óüìþ ܱ½«³»² íçèóï Ú»¼ ðéñðçñïî Ð ¹» ïë ±º ìï Ð ¹» Ü ýæèðïë 0 0 Defendants have identified since March, 0, but Defendants have been unable or unwilling to locate or provide legal representation for all individuals they concede are incompetent to proceed pro se, and they consistently refuse even to confirm in writing, let alone by adopting a binding policy, that they will guarantee legal representation to all individuals who are not competent to represent themselves. SUF #. To this day, in those instances where proceedings continue, the Government continues its Kafkaesque practice of forcing such individuals to proceed pro se even after they have been found not competent to do so. SUF #. In other cases, Immigration Judges continue to allow, and in some cases to encourage, family members who do not meet the criteria of Qualified Representatives to represent individuals who likely lack the capacity to represent themselves. Declaration of Marisol Orihuela in Support of Motion for Partial Summary Judgment (to be subsequently filed at -. Even had the Government managed to arrange for the representation of all individuals it had identified as Subclass One members, that would not obviate the need for this Motion. The Government has made no legallyenforceable commitment to ensure such representation, and therefore Because Immigration Judges continue to allow, and in some cases to encourage, family members to act as the attorneys for people with serious mental disabilities notwithstanding this Court s preliminary injunction orders, at least some of these individuals likely never receive a determination as to whether they are competent to represent themselves, despite the fact that their serious mental illness may render them unable to consent to representation by a family member. See Dkt. 0 at - (rejecting government s argument that consent is not required for family member to appear on behalf of detainee under C.F.R. 0., and reading regulations to require representation by attorneys or accredited representatives in such instances.

11 Ý» îæïðó½ªóðîîïïóüóù óüìþ ܱ½«³»² íçèóï Ú»¼ ðéñðçñïî Ð ¹» ïê ±º ìï Ð ¹» Ü ýæèðïê 0 0 remains free to abandon its meagre pro bono efforts at any time, absent a ruling from this Court. However, the Government s systematic failure to ensure that Subclass One members receive legal representation underscores the need for a ruling at this time. Fact No. : The final undisputed fact is that the Government refuses to recognize any obligation to provide Casas hearings to Subclass Two members -- class members detained longer than six months. EOIR has admitted that it lacks any such policy. SUF #. The Government s treatment of the Named Plaintiffs as well as its subsequent behavior is consistent with this admission. See Dkt. 0 (ordering the Government to provide Plaintiffs Martinez and Khukhryanskiy with a bond hearing within 0 days or release them; Dkt. (same as to Mr. Zhalezny; Dkt. (same as to Mr. Woldemariam; Dkt. (noting that Mr. Sepulveda had not received a bond hearing; see also SUF #, #, #, #. Because the Government indisputably detains and seeks to remove individuals who are not competent to represent themselves, recognizes no legal obligation to provide legal representation for such individuals, and does not provide Casas bond hearings for individuals detained for more than six months, the Court need not resolve any material facts in order to grant this Motion. ARGUMENT Summary judgment is proper where no genuine issue of material fact is in dispute and the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. (c; Range Road Music, Inc. v. East Coast Foods, Inc., F.d, (th Cir. 0. Rule permits motions for partial During the meet and confer process that preceded the filing of this Motion, the Government repeatedly emphasized that this Court s preliminary injunction orders apply only to the particular plaintiffs whose claims were litigated in those orders. But see Dkt. at & n. (quoting A. Gide.

12 Ý» îæïðó½ªóðîîïïóüóù óüìþ ܱ½«³»² íçèóï Ú»¼ ðéñðçñïî Ð ¹» îì ±º ìï Ð ¹» Ü ýæèðîì 0 0 safeguards that do not obviously undermine the rights of class members, such as admonishing Immigration Judges to actively aid[] in the development of the record and inform[ing] the alien of his or her apparent eligibility to apply for [relief], id. at, are plainly inadequate, as those obligations exist in all cases. See United States v. Arrieta, F.d 0, 0 (th Cir. 000 ( [W]here the record contains an inference that the petitioner is eligible for relief from deportation, the IJ must advise the alien of this possibility and give him the opportunity to develop the issue. ; United States v. Pallares-Galan, F.d 0 (th Cir. 00 (holding that waiver of appeal from deportation order was invalid because the IJ failed to advise the individual of the possibility of relief and allow him to develop the issue. Yet, Subclass One Representatives Khukhryanskiy, Martinez, Zhalezny, and Chavez were all denied meaningful access to immigration proceedings (including the ability to apply for relief for which they were eligible as a result of their disability, despite their Immigration Judges existing obligation to aid them in developing the record. These safeguards do not suffice to provide what federal law demands. II. THE IMMIGRATION AND NATIONALITY ACT AND THE DUE PROCESS CLAUSE REQUIRE THE APPOINTMENT OF COUNSEL FOR UNREPRESENTED NON-CITIZENS WHOSE SERIOUS MENTAL DISABILITIES RENDER THEM INCOMPETENT TO REPRESENT THEMSELVES. The Government s systemic failure to provide legal representation to individuals who are not competent to represent themselves due to a serious mental disability also violates the Immigration and Nationality Act (INA and the Fifth Amendment. Both the INA and the Due Process Clause require legal representation for those not competent to represent themselves, for two reasons: First, the fair hearing requirement necessitates legal representation for such individuals. Second, the Due Process rule requiring appointed counsel in certain civil cases where important interests are at

13 Ý» îæïðó½ªóðîîïïóüóù óüìþ ܱ½«³»² íçèóï Ú»¼ ðéñðçñïî Ð ¹» îë ±º ìï Ð ¹» Ü ýæèðîë 0 0 stake mandates legal representation in this context. A. The Fair Hearing Requirement Requires Legal Representation.. All Non-Citizens, Including Those with Serious Mental Disabilities, Have a Right to a Fair Hearing. All non-citizens have both a statutory and constitutional right to a full and fair hearing. Congress has promoted this concept by establishing certain procedural safeguards in immigration proceedings, including the rights to examine witnesses, present evidence, and cross-examine the Government s witnesses. U.S.C. a(b((b (00. The agency has long read these provisions to create a general requirement that removal hearings be fundamentally fair. Matter of Exilus, I. & N. Dec., (BIA. Apart from this statutory requirement, for more than a century the Supreme Court has recognized that the Due Process Clause also requires non-citizens present in the United States to receive all opportunity to be heard upon the questions involving [their] right to be and remain in the United States. Yamataya v. Fisher, U.S., 0 (0; see also Cinapian v. Holder, F.d 0, 0 (th Cir. 00 (finding that Due Process entitles people in immigration proceedings to a full and fair hearing of [their] claims and a reasonable opportunity to present evidence on [their] behalf. ; Garcia-Jaramillo v. I.N.S., 0 F.d (th Cir. ( In a deportation hearing, an alien is entitled to the guaranty of due process which is satisfied only by a full and fair hearing... Non-Citizens Whose Serious Mental Disabilities Render Them Incompetent to Represent Themselves Cannot Receive a Fair Hearing Without Counsel. For immigration proceedings to be full and fair, people who suffer from serious mental disabilities that render them incompetent to represent themselves must be represented by attorneys. The Supreme Court recognized this essential Due Process requirement over fifty years ago, even

14 Ý» îæïðó½ªóðîîïïóüóù óüìþ ܱ½«³»² íçèóï Ú»¼ ðéñðçñïî Ð ¹» îê ±º ìï Ð ¹» Ü ýæèðîê 0 0 before it recognized the Sixth Amendment right to appointed counsel in criminal cases. In a trio of cases decided prior to Gideon v. Wainwright, the Supreme Court recognized that the Due Process Clause required states to appoint counsel for indigent criminal defendants who were not competent to represent themselves. U.S. (. The clearest enunciation of this basic Due Process principle that people incompetent to represent themselves must be represented by counsel comes from the unanimous decision in Massey v. Moore, U.S. 0, 0 (. Massey held that Due Process requires appointed counsel in criminal cases for people suffering from serious mental disabilities. The Court did not consider this a close question: if he were then insane as claimed, he was effectively foreclosed from defending himself.... his need of a lawyer to tender the defense is too plain for argument. U.S. at 0. The Court was unequivocal: [n]o trial can be fair that leaves the defense to a man who is insane, unaided by counsel, and who by reason of his mental conditions stands helpless and alone before the court. Id. In two cases prior to Massey, the Supreme Court recognized that someone could lack the mental capacity to represent oneself at trial even while having the mental capacity to stand trial with the assistance of counsel. In Wade v. Mayo, the Supreme Court reversed the conviction of an eighteen year old who, proceeding pro se, had failed to strike any jurors or offer any closing at his trial because [t]here are some individuals who, by reason of age, ignorance or mental capacity are incapable of representing themselves adequately in a prosecution of a relatively simple nature. U.S., (. And in Palmer v. Ashe, the Supreme Court remanded for an evidentiary hearing on allegations that defendant s mental illness rendered him incapable of protect[ing] himself in the give-and-take of a courtroom trial, in violation of Due Process. U.S., (; see also

15 Ý» îæïðó½ªóðîîïïóüóù óüìþ ܱ½«³»² íçèóï Ú»¼ ðéñðçñïî Ð ¹» îé ±º ìï Ð ¹» Ü ýæèðîé 0 0 Massey, U.S. at 0 ( One might not be insane in the sense of being incapable of standing trial and yet lack the capacity to stand trial without benefit of counsel.. The Supreme Court reaffirmed this rule in recent times, holding that a defendant may have sufficient mental competence to stand trial yet lack[] the mental capacity to conduct his trial defense unless represented. Indiana v. Edwards, U.S., (00. While Plaintiffs recognize that the Supreme Court s holdings in these cases concerned criminal proceedings, their essential reasoning that other procedural protections are meaningless if the defendant is not competent to represent himself applies with full force to immigration proceedings. Cf. Cooper v. Oklahoma, U.S., ( (holding that the state must bear the burden to prove competency because [c]ompetence to stand trial is rudimentary, for upon it depends the main part of those rights deemed essential to a fair trial, including the right to effective assistance of counsel, the rights to summon, to confront, and to cross-examine witnesses, and the right to testify on one s own behalf. (citing Drope v. Missouri, 0 U.S., - (; Rohan v. Woodford, F.d 0, 0 (th Cir. 00 (holding, in the context of post-conviction habeas proceedings, that because the capacity to communicate remains a cornerstone of due process, postconviction detainees have a right to competency. That the Due Process Clause requires an appointed attorney for mentally incompetent detainees follows as well from the well-accepted constitutional requirement that the Government provide translation services for detainees in removal proceedings. See, e.g., Perez-Lastor v. INS, 0 F.d, (th Cir. 000 ( If an alien does not speak English, deportation proceedings must be translated into a language the alien understands. ; Tejeda-Mata v. INS, F.d, (th Cir. 0 ( this court and others have repeatedly recognized the importance of an interpreter

16 Ý» îæïðó½ªóðîîïïóüóù óüìþ ܱ½«³»² íçèóï Ú»¼ ðéñðçñïî Ð ¹» îè ±º ìï Ð ¹» Ü ýæèðîè 0 0 to the fundamental fairness of such a [deportation] hearing if the alien cannot speak English fluently. While there are no doubt differences between an attorney s translation for a detainee with a serious mental disability and an interpreter s translation, none of them suffices to explain why only the latter is required for a full and fair hearing. Both impose a cost on the Government, yet both are necessary to ensure that detainees have a meaningful opportunity to contest the charges and obtain available relief. See Vitek v. Jones, U.S. 0, (0 (White, J., for plurality ( [W]e have recognized that prisoners who are illiterate and uneducated have a great[] need for assistance in exercising their rights[;] A prisoner thought to be suffering from a mental disease or defect requiring involuntary treatment probably has an even greater need for legal assistance, for such a prisoner is more likely to be unable to understand or exercise his rights.. Here, Plaintiffs seek relief for individuals who have been determined incompetent to represent themselves under the Government s existing system. In each of their cases, Plaintiffs have shown, DHS has conceded, or an Immigration Judge has concluded that the respondent lacks sufficient competency to proceed with the hearing, and therefore that the individual in question is entitled to additional safeguards to protect the rights and privileges of the alien, including most obviously the right to a fair hearing. M-A-M-, I&N Dec. at. Because these individuals cannot represent themselves, the basic statutory requirement that they be afforded full and fair immigration proceedings requires that they have appointed counsel. B. Even were Appointed Counsel Not Required to Ensure a Fair Hearing, the Important Interests at Stake Would Entitle Plaintiffs to Appointed Counsel. Even if the right to a fair hearing, by itself, is not sufficient to require the appointment of counsel, the Court must ensure legal representation for

17 Ý» îæïðó½ªóðîîïïóüóù óüìþ ܱ½«³»² íçèóï Ú»¼ ðéñðçñïî Ð ¹» îç ±º ìï Ð ¹» Ü ýæèðîç 0 0 Subclass One members under the Supreme Court s right-to-counsel jurisprudence in civil cases because of the important interests at stake. The Due Process Clause unquestionably requires the appointment of counsel in some civil cases. In re Gault, U.S., ( (requiring appointed counsel in juvenile delinquency proceedings; Lassiter v. Dep t Soc. Serv., U.S. ( (requiring appointed counsel on a case-bycase basis for some parental termination proceedings. Under these cases, the Court determines whether Due Process requires appointed counsel by applying the balancing analysis set forth in Mathews v. Eldridge, U.S., ( (requiring balancing of (i the private interest involved, (ii the government s interest, and (iii the additional risk of error created by the absence of the procedure sought. The Court recently considered a claim for appointed counsel in civil contempt proceedings in Turner v. Rogers, S. Ct. 0 (0, and while it rejected the claim, its analysis strongly suggests that the Due Process Clause requires appointed counsel for Subclass One members. In Turner, a family court judge ordered up to one year s imprisonment for a South Carolina man for so long as he continued to refuse to pay child support. Id. at. Turner had appeared pro se (as had the mother of his child, Ms. Rogers, who was present as the opposing party, id. at, and for that reason challenged the constitutionality of his civil contempt sentence. The Court agreed that Turner s incarceration violated Due Process, but also held that people imprisoned as a result of civil contempt proceedings pursuant to South Carolina s procedures do not necessarily have a right to appointed counsel in their contempt proceedings. However, Turner s analysis of the Mathews test, along with pre-existing law concerning due process protections in the immigration context, clearly demonstrates Plaintiffs entitlement to appointed counsel under the Due 0

18 Ý» îæïðó½ªóðîîïïóüóù óüìþ ܱ½«³»² íçèóï Ú»¼ ðéñðçñïî Ð ¹» í𠱺 ìï Ð ¹» Ü ýæèðíð 0 0 Process Clause. See Dkt. at (arguing for appointed counsel under Mathews prior to Turner.. Plaintiffs Private Interest is Clearly Substantial. The first factor that the Court must consider in the Due Process analysis concerns the nature of Plaintiffs interest in the right they seek to vindicate. Plaintiffs have an overwhelming private interest in securing counsel for their immigration hearings. That interest arises from both the threat of deportation and the detention incident to the removal process. The Supreme Court has long recognized that deportation can result in massive hardship. See, e.g., Bridges v. Wixon, U.S., ( ( The impact of deportation upon the life of an alien is often as great if not greater than the imposition of a criminal sentence.... Return to his native land may result in poverty, persecution, even death.. As Justice Brandeis stated ninety years ago, deportation may result also in loss of both property and life; or of all that makes life worth living. Ng Fung Ho v. White, U.S.,, (. The Supreme Court has not retreated from its long-standing recognition of the profound deprivation of liberty at stake in immigration proceedings in recent times. Just two years ago the Court again underscored the serious deprivation at issue when it held that the quasi-criminal nature of deportation as a sanction, and its close connection to criminal proceedings, required criminal counsel to provide accurate advice to non-citizen Turner rejected the claim that any hearing that could result in the denial of physical liberty necessarily requires the appointment of counsel. See Turner, S.Ct. at - (reading statements in Lassiter as dicta. This portion of Turner forecloses one of Plaintiffs prior arguments for the appointment of counsel. See Dkt. at (arguing that physical liberty interests for Subclass One members were alone sufficient to establish constitutional right to appointed counsel.

19 Ý» îæïðó½ªóðîîïïóüóù óüìþ ܱ½«³»² íçèóï Ú»¼ ðéñðçñïî Ð ¹» íï ±º ìï Ð ¹» Ü ýæèðíï 0 0 defendants concerning the immigration consequences of potential convictions. Padilla v. Kentucky, 0 S. Ct., (00 (holding that the Sixth Amendment requires competent advice as to immigration consequences in part because of the severity of deportation the equivalent of banishment or exile. While all individuals risk harm from wrongful deportation, Subclass One members are more likely to suffer extremely serious consequences should the immigration courts wrongly order them removed. The Named Representatives cases amply illustrate this point Khukhryanskiy, Martinez, Zhalezny, and Chavez all risk brutal treatment if deported. See Ex. at, -; Ex. 0; Ex. 0 at,, ; Ex. A at -. Apart from the threat of removal, those who are not competent to represent themselves have a further interest in obtaining counsel in their removal proceedings because they face detention while their removal proceedings remain pending. Courts have long recognized the interest in In addition, many of the Subclass One members are from countries in Latin America that have adopted harsh policies towards people with mental disabilities. The Pan-American Health Organization has decried the treatment of persons with mental disabilities in Latin America: Throughout the Americas, persons with mental disabilities... are often confined against their will and without due process, and may be left to languish for years, at times for their entire lives, in deplorable conditions. Some are forcibly institutionalized for years on end, with little hope of having their case reviewed. Some are held in isolation in remote mental health hospitals, far removed from any government scrutiny or regulation enforcement. Some lie in their own waste, are shackled to their beds, waste away in caged beds, or are tied outdoors with no protection from the elements. Some are deprived of food, medication, or clothing. Some are beaten. Some are raped. PAN-AM. HEALTH ORG., HUMAN RIGHTS & HEALTH: PERS. WITH MENTAL DISABILITIES (00; See

20 Ý» îæïðó½ªóðîîïïóüóù óüìþ ܱ½«³»² íçèóï Ú»¼ ðéñðçñïî Ð ¹» íî ±º ìï Ð ¹» Ü ýæèðíî 0 0 freedom from imprisonment whether civil or criminal as an interest of the highest order in the civil counsel context. See, e.g., Heryford v. Parker, F.d, (0th Cir. (holding that Due Process requires appointed counsel for civil commitment proceedings. While Turner holds that the deprivation of physical liberty is insufficient, without more, to establish the right to appointed counsel under Mathews, it reaffirms that the interest at stake arising from the detention is weighty and properly taken into account in determining whether counsel should be appointed. The Court characterized the interest as the freedom from bodily restraint, [that] lies at the core of the liberty protected by the Due Process Clause and found that it weighed strongly in the detainee s favor. Id. at (internal citations omitted. Finally, class members claims to right to counsel are further strengthened by the fact that their serious mental disorders often create delays in their cases, thus prolonging their detention. Cf. Casas-Castrillon v. Department of Homeland Security, F.d, 0 (th Cir. 00 (recognizing immigration detainees constitutionally protected interest in avoiding physical restraint.. The Risk of Error from Failure to Appoint Counsel is Significant. The second factor in the Due Process analysis concerns the likely risk of error created by the absence of counsel, and this factor also counsels very strongly in favor of Plaintiffs claim. Immigration Judges simply cannot provide a fair hearing, let alone make an accurate determination as to the rights of any given detainee, when that individual cannot understand the proceedings. As this Court succinctly described the problem in the context of one Subclass One representative, it is difficult to conceive of any paradigm in which Martinez could proceed pro se. Dkt. 0 at. The Supreme Court s recent analysis of the risk of error factor in

21 Ý» îæïðó½ªóðîîïïóüóù óüìþ ܱ½«³»² íçèóï Ú»¼ ðéñðçñïî Ð ¹» íí ±º ìï Ð ¹» Ü ýæèðíí 0 0 Turner v. Rogers confirms that it cuts strongly in Plaintiffs favor, for three reasons: First, Turner noted that the primary issue in a civil contempt proceeding concerns whether the contemnor has the ability to pay his or her child support that is, whether he or she is indigent. That question is generally not complex, and is routinely determined without the benefit of counsel even in criminal cases. Turner, S.Ct. at. Here, by contrast, federal courts have repeatedly recognized the complexity of immigration cases and the resulting potential for error even when mentally competent individuals are forced to defend themselves without legal representation. See, e.g., Padilla v. Kentucky, 0 S.Ct., (00 ( Immigration law can be complex, and it is a legal specialty of its own. ; Escobar-Grijalva v. INS, 0 F.d, (th Cir. 000 ( Deprivation of the statutory right to counsel deprives an alien asylum-seeker of the one hope she has to thread a labyrinth almost as impenetrable as the Internal Revenue Code.. It should be obvious that the potential for error in such complex proceedings is greatly magnified when they involve individuals who, by definition, are not competent to proceed pro se. The history of this litigation is already replete with egregious error arising from removal proceedings involving detainees who were not competent to represent themselves. Mr. Khukhryanskiy s case amply demonstrates this point. The IJ apparently already knew that he would not understand the proceedings, as she had asked a deportation officer to assist with his representation. SUF #. Nonetheless, with this assistance in place, the IJ moved forward and ordered him removed to the Ukraine, SUF #, even though he clearly informed the IJ that he could not understand what was happening at his hearing, and even though he was eligible for relief from removal. At the

22 Ý» îæïðó½ªóðîîïïóüóù óüìþ ܱ½«³»² íçèóï Ú»¼ ðéñðçñïî Ð ¹» íì ±º ìï Ð ¹» Ü ýæèðíì 0 0 time this Court granted his motion for preliminary injunction, he was pro se before the BIA. As this Court already concluded, Mr. Khukhryanskiy did not meaningfully participate in his removal proceedings as a result of his mental illness, Dkt. 0 at. After he obtained representation pursuant to this Court s order, however, he won a remand for a new hearing from the BIA, and then obtained the relief for which he had been eligible all along before the Immigration Judge. There can be no serious dispute that Mr. Khukhryanskiy would have been wrongfully deported were it not for the provision of legal representation pursuant to this Court s order. Mr. Martinez s case provides further evidence that the complexity of immigration cases makes the risk of error unacceptably high when Subclass One members must proceed pro se. Mr. Martinez spent months languishing before the Immigration Judge, SUF #, and likely would have been ordered removed were it not for Plaintiffs counsel s letter to the judge, and then the Court s preliminary injunction ruling, which came at a time when Mr. Martinez was being forced to defend, pro se, against the DHS s appeal of the Immigration Judge s decision terminating proceedings due to his incompetence. SUF #. Since obtaining representation and a bond hearing pursuant to this Court s order, Mr. Martinez has been released to a mental health facility, and his case has been closed until the government finds him an attorney, as this Court s order requires. Mr. Zhalezny s case provides still further illustration of the risk of error. He spent over a year in immigration detention before this Court granted his motion for preliminary injunctive relief, SUF #, as the Judge in his case repeatedly delayed resolution while trying to find him an attorney and, when that failed, by trying to enlist his father to represent him. SUF #0. Mr. Zhalezny was scheduled to defend his asylum application with the help of his father, even though his father had informed the immigration court

23 Ý» îæïðó½ªóðîîïïóüóù óüìþ ܱ½«³»² íçèóï Ú»¼ ðéñðçñïî Ð ¹» íë ±º ìï Ð ¹» Ü ýæèðíë 0 0 that he felt unable to provide legal assistance to his son, at the time of this Court s order. SUF #. Finally, Mr. Chavez s case further supports Plaintiffs argument that the risk of error is grave. The Immigration Judge erroneously accepted a waiver of representation from Mr. Chavez even though he was not competent to represent himself, and ultimately denied his application for withholding or relief under the Convention Against Torture and ordered him deported. SUF #. It was this error that led the Board of Immigration Appeals to reopen Mr. Chavez s proceedings in 00. SUF #. The experiences of other Subclass One members confirm that the problems experienced by the Named Representatives are the result of systemic failures. Subclass One member Mr. Zotov has been detained since December 00, and was ordered removed while being unrepresented in December 0, even after the IJ concluded that he was incompetent to proceed pro se. SUF #, #. And other Subclass One members continue to attend hearings where they appear pro se. SUF #. Second, Turner placed significant weight on the fact that the party seeking enforcement of a civil contempt order often an indigent single parent is frequently unrepresented in the civil contempt proceedings. The Two recent studies of the issue conclude that allowing detainees with serious mental disabilities to proceed pro se creates a high risk of error in removal proceedings. See, e.g., TEXAS APPLESEED, JUSTICE FOR IMMIGRATION S HIDDEN POPULATIONS at ( [A] mental health disorder can have a particularly devastating impact on the ability of a [pro se] immigrant to receive a fair hearing. ; HUMAN RIGHTS WATCH AND THE AMERICAN CIVIL LIBERTIES UNION, DEPORTATION BY DEFAULT: MENTAL DISABILITY, UNFAIR HEARINGS, AND INDEFINITE DETENTION IN THE US IMMIGRATION JUSTICE SYS.(00 (hereafter HRW Report at ( Without a lawyer, many individuals with mental disabilities who have viable claims will not have the chance to present their cases and defend their rights in immigration court even if they have reasonable grounds for a defense..

24 Ý» îæïðó½ªóðîîïïóüóù óüìþ ܱ½«³»² íçèóï Ú»¼ ðéñðçñïî Ð ¹» íê ±º ìï Ð ¹» Ü ýæèðíê 0 0 Court thus cautioned that the asymmetry of representation could make the decision less fair overall. Id. at (emphasis in original. But here, of course, the asymmetry of representation cuts strongly in Plaintiffs favor, because individuals who are not competent to represent themselves stand helpless and alone before the Court, Massey, U.S. at 0, while the Government is always represented by an attorney trained in the complexities of immigration law, who is advocating their removal. As Dr. Barrett, Dr. Burchuk, Dr. Ferranti, and Dr. Stone explained with respect to Plaintiffs Khukhryanskiy, Martinez, Zhalezny, and Chavez, the risk of error is substantial under such conditions. See supra Section III.A..c. Third, Turner held that, given the simplicity of civil contempt proceedings, the State could satisfy its Due Process obligations through the use of certain safeguards notice to the detainee of the central issue in the proceeding, a form eliciting relevant information, and a requirement for questioning based on that form. Turner, S. Ct. at. But, as noted above, no comparable safeguards short of counsel are available in immigration cases, given their complexity and, relatedly, the inability to reduce the critical information needed to a simple form. And even if such forms could suffice for some detained immigrants, they certainly could not for those who suffer from serious mental disabilities. In the immigration context, several circuit courts have concluded that Due Process requires that at least some individuals receive appointed counsel, depending on the circumstances of their particular cases. While these cases were decided prior to Turner, their reasoning supports Plaintiffs claim that the subset of immigration detainees who are not competent to represent themselves due to their serious mental disorders are entitled to appointed counsel. See Lin v. Ashcroft, F.d 0, 0 (th Cir. 00 (holding in the context of unaccompanied minors in immigration

25 Ý» îæïðó½ªóðîîïïóüóù óüìþ ܱ½«³»² íçèóï Ú»¼ ðéñðçñïî Ð ¹» íé ±º ìï Ð ¹» Ü ýæèðíé 0 0 proceedings that [a]bsent a minor s knowing, intelligent, and voluntary waiver of the right to counsel, the IJ may have to take an affirmative role in securing representation by competent counsel. ; United States v. Campos- Asencio, F.d 0, 0 (th Cir. (holding that an alien has a right to counsel if the absence of counsel would violate due process under the fifth amendment because, in some cases, the laws and regulations determining [an alien s] deportability [a]re too complex for a pro se alien (citing Partible v. INS, 00 F.d 0, 0 (th Cir. ; Aguilera-Enriquez v. INS, F.d, n. (th Cir. ( [W]here an unrepresented indigent alien would require counsel to present his position adequately to an immigration judge, he must be provided with a lawyer at the Government s expense. Otherwise fundamental fairness would be violated.. For all of these reasons, Turner and pre-existing civil counsel caselaw strongly suggest that appointed counsel is necessary to mitigate the risk of erroneous deprivations of liberty for Subclass One members facing immigration detention and removal.. The Government s Interest in Barring Appointment of Counsel is Not Significant. The Government s competing interest in denying counsel is insignificant. The Government actually shares Plaintiffs interest in accurate decisions in removal cases. As Lassiter explained, the State... shares the parent s interest in an accurate and just decision. For this reason, the State may share the indigent parent s interest in the availability of appointed counsel. Lassiter, U.S. at. While the Government no doubt has a threshold pecuniary interest in resisting the appointment of counsel, that interest is mitigated by two factors. First, the number of cases involved is extremely small in comparison to the number of immigration cases in which the Government already provides counsel for itself, let alone the number of

26 Ý» îæïðó½ªóðîîïïóüóù óüìþ ܱ½«³»² íçèóï Ú»¼ ðéñðçñïî Ð ¹» íè ±º ìï Ð ¹» Ü ýæèðíè 0 0 criminal cases in which the Government already appoints counsel. SUF #. Cf. Lassiter, U.S. at ( though the State s pecuniary interest is legitimate, it is hardly significant enough to overcome private interests as important as those here, particularly in light of the concession... that the potential costs of appointed counsel in termination proceedings... is [sic] admittedly de minimis compared to the costs in all criminal actions.. Second, because the Government already pays for the detention of unrepresented people with mental disabilities and those cases are often greatly lengthened by the absence of counsel, the Government may save money by appointing counsel for people with serious mental disabilities. For all of these reasons, the Due Process Clause requires the provision of counsel to Subclass One members. III. THE IMMIGRATION STATUTES, DUE PROCESS CLAUSE, AND REHABILITATION ACT ALL REQUIRE THE PROVISION OF RIGOROUS BOND HEARINGS FOR THOSE CLASS MEMBERS WHO HAVE BEEN DETAINED FOR MORE THAN SIX MONTHS. The immigration detention statutes, Due Process Clause, and the Rehabilitation Act all require that Class members detained for more than six months (Subclass Two members be afforded a custody hearing where the Government bears the burden of proof to justify their continued detention by For example, the Government has promoted its Legal Orientation Program in part because of evidence that the immigration courts are able to more quickly process the cases of those with greater understanding of the immigration system and thus able to save on detention costs. See Nina Siulc et al.,vera Institute For Justice, Improving Efficiency and Promoting Justice in the Immigration System (00, available at nal.pdf ( The more quickly detained cases are completed, the sooner detained persons are eligible to be released from custody or removed from the U.S. This can free available bed space at detention facilities and substantially reduce costs for the federal government..

27 Case :0-cv-0-DMG -DTB Document Filed 0// Page of Page ID #: 0 0 AHILAN T. ARULANANTHAM (State Bar No. aarulanantham@aclu-sc.org MARISOL ORIHUELA (State Bar No. morihuela@aclu-sc.org ACLU FOUNDATION OF SOUTHERN CALIFORNIA West th Street Los Angeles, California 00 Telephone: ( - Facsimile: ( - MICHAEL H. STEINBERG (State Bar No. steinbergm@sullcrom.com SULLIVAN & CROMWELL LLP Century Park East, Suite 00 Los Angeles, California 00- Telephone: (0-00 Facsimile: (0-00 Attorneys for Plaintiffs-Petitioners (Additional Counsel for Plaintiffs on Following Page JOSE ANTONIO FRANCO- GONZALEZ, et al., Plaintiffs-Petitioners, v. ERIC H. HOLDER, Jr., Attorney General, et al., UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA Defendants-Respondents. Case No. 0-CV-0 DMG (DTBx PLAINTIFFS REPLY IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGEMENT Hearing Date: September, 0 Hearing Time: :00 a.m. Honorable Dolly M. Gee