What's the Matter with Franco?

79 Pages Posted: 24 Feb 2023 Last revised: 3 Jan 2024

See all articles by Amelia Wilson

Amelia Wilson

Seton Hall Law School; Seton Hall University - Center for Social Justice

Date Written: January 13, 2023

Abstract

The 2013 class action lawsuit Franco-Gonzalez v. Holder in the Central District of California was the single most important advancement in the rights of noncitizens with mental health disabilities facing deportation. The court’s decision in that case brought much needed protections in the form of government-appointed counsel, bond hearings, and other procedural safeguards to a uniquely vulnerable population. To date, no other immigrant group has won this right. Amplifying Franco’s importance was that, for the first time, immigration judges had a standardized, precise test for evaluating mental competence—and supportive tools such as forensic competency evaluations to assist them where a person’s mental condition was unclear. Immigration enforcement and detention apparatuses, for their part, were ordered to engage in mental health information-gathering, mental health screenings, record keeping, and reporting.

Ten years after Franco, however, the case and its namesake federal program are failing tens of thousands of immigrants with serious mental health challenges. These individuals are excluded from Franco’s ambit for various reasons: some fall outside the case’s narrowly defined scope, while others are trapped in the shadowy extra-legal universe of removal proceedings where many noncitizens find themselves. Still other noncitizens fall squarely within Franco’s reach but endure extremely prolonged detention times as a direct result of the mental competency process Franco created. Poor training of immigration judges and identification failures by DHS compound the problems.

This article is the first scholarly piece to criticize Franco. It is also the first to conduct a deep, nuanced analysis of Franco: both the limits of the court’s decision, and the failings of the federal program created to implement Franco’s mandates. The analysis includes a granular examination of internal government documents obtained from two Freedom of Information Act requests that reveal how the competency “conveyor belt” intersects with detention periods. Finally, this article offers two possible solutions that would ameliorate some of Franco’s harms in attainable ways while offering immediate gains for noncitizens with mental health disabilities.

Keywords: immigration, mental health, appointed counsel, immigration detention, mental competency, disability justice

Suggested Citation

Wilson, Amelia, What's the Matter with Franco? (January 13, 2023). UC Davis Law Review, Vol. 57, No. 2, 2023, Seton Hall Law School Legal Studies Research No. Forthcoming, Available at SSRN: https://ssrn.com/abstract=4362365 or http://dx.doi.org/10.2139/ssrn.4362365

Amelia Wilson (Contact Author)

Seton Hall Law School ( email )

One Newark Center
Newark, NJ 07102-5210
United States

Seton Hall University - Center for Social Justice ( email )

United States

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