Protect Due Process for Immigrants with Debilitating Mental Health Conditions: it just makes cents.

Guest post by Michael Vastine. Michael Vastine is a faculty member of the Stetson University College of Law and also serves as an Academic Advisory Board Member for the Acacia Center for Justice.  A nationally recognized expert, leading litigator, and academic in the fields of immigration law and immigrant defense, he has also held numerous elected and appointed leadership at the national level of the American Immigration Lawyers Association (AILA) and the AILA South Florida Chapter, including a term as Chair.  Professor Vastine has litigated extensively before the U.S. Courts of Appeals, in cases arising from his clinical practice and primarily construing the “categorical approach” for determining the immigration consequences of crimes, including foundational cases on questions of mens rea elements, definitions of controlled substances, trafficking, firearms, and crimes involving moral turpitude.  He also argued the Florida Supreme Court case establishing the post-Padilla v. Kentucky standard for effective criminal defense of immigrants.  He has separately authored numerous amicus curiae briefs for AILA and other organizations in litigation of similar issues at the Courts of Appeals and, occasionally, before the U.S. Supreme Court, in addition to work challenging the constitutionality of the prolonged detention of immigrants. 

This blog post is a crosspost with the American Immigration Lawyers Association, you can find their version of the post. 

Following a recent court order, the U.S. government has resumed fully funding the “National Qualified Representative Program” (NQRP), a formal Department of Homeland Security (DHS) and Department of Justice (DOJ) program which provides legal counsel to “certain detained immigrants deemed incompetent to represent themselves by an immigration judge.” Since 2013, the NQRP has improved due process for detained people with debilitating mental health conditions and has also, as a consequence, help to make the immigration courts run more efficiently. Despite these efficiencies, the program became one of the many ironic casualties of DOGE government cuts. A federal judge found the cessation of counsel to be “arbitrary and capricious,” further noting that the executive branch had conceded the point. With NQRP funding restored for only the next year, it is critical to understand the purpose and impact of the program, so it can be recognized and protected. This moment of reprieve also underscores the need for a more secure foundation for the program. At present, the program is only protected by court order and is reliant, entirely, on the opinions of the judiciary of the California District Courts to keep it alive. For the sake of its long-term sustainability, NQRP should also be written into legislation, enacted by state or federal-level Congressional representatives. 

Fifteen years ago, for the first time, a judge ordered the federal government to provide representation for two detained immigrants in their removal cases before the immigration court. This step was unprecedented, because while immigrants have a right to be represented, unlike in the criminal court system, they don’t have a right to be provided an attorney at government expense. The two immigrants at issue presented such profound mental health conditions that it was impossible for them to represent themselves. I agreed to co-represent pro bono one of the two, a homeless refugee client whom the judge noted to present “very active and pronounced psychotic disorder, schizophrenia of the paranoid type ... frequent auditory hallucinations .... [and] psychosis … that prevented him from expressing himself”, a condition so serious that he had years earlier been voluntarily committed to a treatment facility. In this test case, we lost our client’s case for bond, with the immigration judge setting a bond amount that was prohibitively high, given his life circumstances. 

These cases affirmed that attorneys’ management of these cases and advocacy for their vulnerable clients – presenting evidence, expert materials, testimony, and argument - is helpful for delivering justice. It is also very helpful for the cost management of these cases. Why?: 1) Detaining people is expensive (at least $152 daily, per detainee), but detaining mentally ill immigrants is very expensive; and 2) court cases (which sometimes can languish for years, even in the detained setting) move much faster in the hands of a defense attorney than when a mentally ill immigrant attempts to represent themself. I took the case because I thought it was valuable to see if a system of appointed attorneys might help, even if the pro bono model was unsustainable over the long term. Through our advocacy, the client did not immediately win his freedom, but his case was part of an important moment.   

Soon thereafter, the Board of Immigration Appeals issued the first in a line of rulings explaining standards and safeguards for immigration court cases of immigrants with severe mental health conditions. The BIA rulings were limited victories for immigrants and largely procedural.  The factual basis for a non-citizen’s removal often is simple to prove (e.g. they lack a visa, overstayed their authorized time in the U.S., or committed a removable offense), but the court had to first affirm the noncitizen’s understanding of the purpose of the proceedings, and take steps to facilitate the case, often in the form of permitting a “friend of the court” (a non-attorney relative, friend, caretaker) to actively participate and engage with the judge. Cases for “relief” from removal were much more complicated, as incompetent non-citizens faced inevitable challenges in proving that they merited favorable discretion or faced likely future persecution in their country of origin if removed. Without assistance of defense counsel, immigrants’ legal outcomes were daunting. As well, judges, already faced with crushing case backlogs, can’t shoulder the responsibility of facilitating fair hearings without investing an inordinate amount of time, themselves, in exploring the cases of immigrants who cannot effectively communicate these case details to the court.   

Thus, the government, during the Obama administration, realized that investing in due process provided tangible returns and made the NQRP part of formal DHS and DOJ policy. The caseload of the NQRP is modest in real numbers amounting to just over two thousand cases over the last twelve years. Less than 900 of these cases were open at the time funding was cut in early 2025. Nevertheless, each represented case was a realization of the American promise of a system of laws and due process.   

Year one of the second Trump administration is a remarkable time for the United States which, until recently, proudly proclaimed itself a nation of immigrants. By the narrowest of margins, Congress recently authorized a spending increase for immigration detention and enforcement that would add up to more than 1 trillion dollars over a period of ten years. This massive increase in spending has been justified under the pretext of countering criminality, despite the bevy of academic research showing that there’s no connection between immigration and crime rates. Moreover, immigrants who do commit crimes are already subject to removal and most are subject to mandatory detention under existing laws. The Supreme Court is permitting this enforcement to include removal of immigrants to harsh, dangerous foreign prisons or war-torn places to which they have no ties.  

Against this factual backdrop, the accompanying rhetoric, and military on the city streets of our heretofore free society, it is perhaps quaint to invoke principles, even those enshrined in the constitution, but due process matters, even – especially – for unpopular groups and even more so for vulnerable ones such as the mentally disabled. Due process ensures that the awesome power of justice is meted out appropriately, including the power of a country to remove a person from its territory. In this context, principle converges with practicality, as investment in representation produces efficiency.   

The recent court order rejected the arbitrary way in which NQRP met its demise. The administration has, thus far, complied with the court’s order to continue fully funding NQRP, through its major stakeholders, who have an established track record of implementing services for the target recipients nationwide. There was no financial reason not to pursue the principled path. Now that it is restored, funding for the National Qualified Representative Program must be permanently protected, and Congress should move to enact legislation on its behalf.  

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