Our Undocumented: Assisting Those With Trauma and Capacity Issues

Many of our practices have always involved representing the needs of those who are undocumented and who have various vulnerabilities to include mental health disabilities. Some of us have chosen to broadened our practices to support those who have incurred trauma as a result of our changing immigration policies. This article represents one practitioner’s efforts to obtain the expertise needed to best advance the needs of those who are undocumented with the hope that it will generate ongoing discussions about best practices for how we can all help these clients best navigate through our family law systems.

My volunteer work with my local rapid response network led me to the work of the Immigration Justice Campaign. One of its recent posts was by the American Immigration Lawyers Association (AILA). This post contained an article, which while focusing on the systems of a private detention facility to address those with mental health disabilities, it also discusses practices at other immigration detention facilities. The articlecan be found here:  GEO-run Aurora run center is isolating immigrants-some mentally ill-in prolonged solitary confinement (The Colorado Independent, August 6, 2019).

An excerpt from the article discussing two cases is below:

"Patrick who – after being diagnosed with and treated for a traumatic brain injury, depression, anxiety and seizure-, bi-polar- and post-traumatic stress disorders – was held at the Aurora facility from August 2018 until June 2019. Patrick, from Sudan, had attempted suicide at least twice before, both times while being held in solitary confinement in prisons. From the Aurora detention center, he reported regularly receiving the wrong dosages of his medications to control his depression, anxiety and seizures. He also reported having no access to therapy. “As a result, his coping mechanisms to deal with stress deteriorated,” the groups wrote.

They report that GEO put Patrick under suicide watch for about a week when his lawyer says he tried to strangle himself using his clothes, then began ramming his head into a wall. After he was taken out of suicide watch, a mental health provider told him “that he would be sent to punitive segregation immediately following his time on suicide watch.” His immigration lawyer scrambled to find disability lawyers to pressure GEO to keep him out of solitary confinement and put him back in general population where he could be monitored more closely."

Being a former San Francisco Public Defender, I had represented many in custody who were experiencing undiagnosed mental health symptoms or decompensation from a prior diagnosis. In that system, if there were concerns about competency, meaning not being able to understand the consequences of one’s options and the ability to assist counsel, any one, to include the Judge, could declare a doubt. Assigned psychologists would examine and decide about the person’s competency to proceed. Having served in the office’s mental health division, I was familiar with the civil mental health track that could lead to a person being conserved. Now representing those in the family law area, the above article caused me to dig deeper to understand what options clients had especially when pursuing rights over their children. A recent article Representative Divorce: Musings on Dissolving a Marriage Based on Legal Incompetence (California Lawyers Association Family Law News, Volume 41, No.2, 2019) presented a great overview of how any party, including a Judge could file for a guardian ad litem to assist with making sure the party’s interests were being fulling expressed.

With my volunteer rapid response experience and the knowledge that there is no right to counsel within the immigration system, there appears to be little chance that someone will recognize a mental health situation for an in custody client and attempt to request a guardian ad litem to be appointed. The best chances for something like that to happen appears to be when the person is bonded out. Even with that and as referenced in the above Colorado Independent Article, it appears necessary for any counsel to be mindful of the effects of past custodial time, especially solitary confinements. These affects, combined with the stress of a recent announcement that there might be extended confinements of children with families, seems to be yet another reason to develop good working relationships with local therapists. Such relationships appear crucial in helping clients obtain any needed treatment and to help sufficiently stabilize in order to effectively understand options and to work with counsel. Relationships with local GAL’s appear to be the alternative.

As stated at the beginning, it was the hope of this article to share a perspective in order to jump start ongoing discussions about best practices in assisting undocumented clients with their child custody issues. I would love to have continued discussions on the listserv or anyone can reach out directly to me at szollman1@gmail.com.