## Facts

- A federal class action challenged the treatment of detained noncitizens with serious mental disabilities in removal proceedings, including lack of representation and prolonged detention.
- Maksim Zhalezny, a 21-year-old lawful permanent resident from Belarus and class member, was diagnosed with undifferentiated schizophrenia.
- After criminal convictions for theft and burglary, immigration authorities initiated removal proceedings and detained Zhalezny beginning around April 2010.
- An immigration judge found Zhalezny mentally incompetent to understand or participate meaningfully in the proceedings.
- After unsuccessful attempts to obtain pro bono counsel, the immigration judge asked Zhalezny’s father, Piotr, to act as his representative.
- The record showed Piotr had limited English proficiency, worked full time, required a translator, and did not understand the proceedings or the charges.
- By the time the district court considered Zhalezny’s motion, he had been detained for over a year without a custody/bond hearing.

## Issues

1. Whether a mentally incompetent immigration detainee was likely entitled, as a matter of law, to a “qualified representative” for custody and related proceedings, and whether appointment of an ill-equipped parent satisfied required safeguards.
2. Whether prolonged immigration detention (over one year) without a custody/bond hearing likely violated statutory or constitutional limits, warranting preliminary injunctive relief.

## Decision

- The court granted Zhalezny’s motion in part.
- The court ordered immigration court to provide a bond/custody hearing within 45 days.
- The court ordered that Zhalezny be provided a “qualified representative” for that hearing.
- The court declined to order immediate unconditional release, instead requiring individualized custody review with adequate assistance.

## Legal Principles

- When a detainee is found mentally incompetent, procedural safeguards must be sufficient to permit meaningful participation and a fair hearing; a nominal or incapable lay representative may be inadequate.
- A “qualified representative” need not be a licensed attorney, but must have sufficient competence, language ability, and understanding of immigration proceedings to protect the detainee’s interests.
- Prolonged immigration detention requires individualized custody review; continued detention without a timely custody/bond hearing can constitute irreparable harm, particularly for an incompetent detainee unable to advocate for release.
- In evaluating preliminary injunctive relief, a strong showing of likely success and ongoing injury from continued detention may justify an order requiring a prompt custody hearing with adequate assistance, while preserving the government’s ability to detain based on danger or flight risk.

## Conclusion

The court ordered a prompt bond hearing and provision of a qualified representative for a mentally incompetent immigration detainee held for over a year without custody review, finding the existing safeguard of an unprepared parent-representative likely inadequate and the continued detention without a meaningful hearing likely unlawful.


Franco-Gonzalez v. Holder, 828 F. Supp. 2d 1133 (C.D. Cal. 2011)