San Francisco District Court Rejects Petition for Release from Immigration Detention Based on Failure to Consider Cognitive Impairment

Above: U.S. District Court ND California San Francisco (link)

In January 2021, a San Francisco federal district court denied Lam vi Quan’s petition for release from immigration custody, rejecting his contention that an immigration judge had violated his due process rights by failing to consider his cognitive impairments during his bond hearing.

Lam vi Quan and his family came to the U.S. from Vietnam as refugees in 1982, when he was seven years old. At the age of ten, Quan suffered a severe head injury after falling out of a tree. Ongoing cognitive impairment from that injury limited his ability to speak, read, write, and understand information. Neurocognitive evaluation indicated a mental capacity roughly equivalent to a twelve year old child, making it impossible for him to live independently.

Between 1998 and 2011, Quan was convicted of a series of crimes, ranging from misdemeanor moving offenses through several felonies. In 2011, he was convicted of aggravated assault of a police officer and sentenced to an eight year prison term.

At the conclusion of prison term 2018, he was detained by DHS in immigration custody to await deportation proceedings. An immigration judge denied bond after he continually denied responsibility for the assault during a hearing, concluding that he “had not rehabilitated himself” and therefore continued to pose a “danger for engaging in similar conduct.”

However, the judge also recommended an adjustment of status and waiver of inadmissibility based on “exceptional and extremely unusual hardship,” observing that his testimony about the crime was “childlike, impulsive, and indicated a lack of ability to comprehend the severity of his actions.”

His case is currently pending a verdict from the Board of Immigration Appeals. In the interim, Quan was granted a second bond hearing, during which he argued that he no longer represented a danger to the community based on his cognitive impairment and the length of time that had passed since his assault conviction.

The judge again denied bond, finding that his extensive criminal history was clear evidence of dangerousness to the community despite his neurocognitive impairments and strong community ties: “Put simply, the extensiveness, nature, and recency of [his] criminal record prevents his release during the pendency of his proceeding.”

The district court affirmed this decision and found no evidence of a due process violation.

The court also rejected Quan’s claim that the denial of bond violated the Rehabilitation Act by treating him differently on the basis of his cognitive disability. The court found that he had not been denied benefits based exclusively on his disability because the judge had explicitly considered his cognitive impairment as a mitigating factor and appointed an attorney to represent his interests during both bond hearings. Quan will therefore remain in immigration detention until the conclusion of removal proceedings.

Citation: Quan v. Barr, 2021 WL 308610 (N.D. Cal. Jan. 29, 2021).

Keywords: immigration, cognitive impairment, deportation, TBI, mental impairment, disability

This post is the 102nd post as part of an ongoing Center for Law, Brain & Behavior (CLBB) series tracking the latest developments in law and neuroscience cases. To see previous posts about recent cases, see the full case archive on the CLBB website. To see updates on legal scholarship, see the Neurolaw News, hosted by the MacArthur Foundation Research Network on Law and Neuroscience. This project is made possible through support of the Dana Foundation.

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at Mass General Hospital, Harvard Medical School

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Center for Law, Brain & Behavior

Center for Law, Brain & Behavior

at Mass General Hospital, Harvard Medical School

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