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Noncitizens with Mental Competency Issues in Removal Proceedings


In contrast to the criminal system, virtually no safeguards exist in removal proceedings for respondents with mental disabilities. Each year, untold numbers of noncitizens with mental disabilities are ordered deported without access to counsel or any assessment of their cognitive capabilities. The issue has taken on greater urgency following extensive reports of the challenges that immigrants with mental disabilities face in removal proceedings, as well as alarming accounts of the mistaken deportation of U.S. citizens with mental disabilities. This page contains summaries of recent and ongoing cases regarding the rights of noncitizens with mental disabilities.

Latest Developments | Additional Resources

Latest Developments

Board Establishes Framework for Addressing Competency Issues
Matter of M-A-M-, 25 I&N Dec. 474 (BIA 2011)

In May, the Board for the first time set forth a framework for immigration judges to follow when hearing cases involving respondents with mental competency issues. In cases where the respondent exhibits “indicia of incompetency,” the immigration judge must make on-the-record findings and implement appropriate procedural safeguards to ensure a fair hearing. The test for determining whether a respondent is competent to participate in proceedings is whether he or she understands the nature and object of the proceedings, can consult with an attorney or representative (if there is one), and has a reasonable opportunity to examine adverse evidence, present favorable evidence and cross-examine government witnesses. If the immigration judge has good cause to believe a respondent lacks sufficient competency to proceed, appropriate procedural safeguards must be implemented. Of critical importance, the Board confirmed that the Department of Homeland Security has an obligation to provide immigration judges with any relevant materials in its possession regarding an immigrant’s mental competency.

While helpful, the Board’s decision leaves many important questions unanswered. The decision does not acknowledge that legal representation is indispensable to help immigrants who lack mental competency navigate the complex maze of immigration law. Nor does it address immigration judges’ lack of expertise in conducting competency assessments. Finally, the decision provides little discussion of how to proceed in cases involving respondents whose competency issues are so severe that no procedural safeguards would ensure a fair hearing.

Government Contests Immigration Judges’ Authority to Terminate Proceedings
Matter of B-Z
(BIA, remanded June 1, 2011)

The Board of Immigration Appeals is presently considering an appeal from the government in a case addressing when an Immigration Judge may properly terminate proceedings against respondents with serious mental disabilities.  Finding that the respondent’s mental competency and fitness affected his ability to effectively communicate with his counsel and to participate in his representation, the IJ terminated proceedings in January 2010.  The evidence submitted included an affidavits from a licensed psychologist who had diagnosed the respondent with paranoid schizophrenia and the respondent’s attorney, who stated that she had met repeatedly with the respondent but he was unable to assist her in preparing an application for relief.  In his order terminating proceedings, the Immigration Judge noted that the respondent “ramble[d] incoherently” at prior hearings. Briefing to the BIA was completed in April 2011. On June 1, 2011, following significant briefing by both sides and the BIA’s decision in Matter of M-A-M-, 25 I&N Dec. 474 (BIA 2011), the BIA remanded this case to permit the immigration judge to consider administrative closure as a possible safeguard and any other relevant issues.

DHS Withdraws Appeal of IJ Decision Terminating Proceedings; BIA Dismisses Case and IJ Decision Stands Matter of L-T- (BIA, appeal dismissed Nov. 8, 2010)

In February 2010, an Immigration Judge terminated removal proceedings against a legal permanent resident, L-T-, due to concerns about his ability to competently represent himself at his removal hearing.  During a master calendar hearing, the Immigration Judge determined that L-T- was unable to understand either the rights advisals provided to him or the immigration charges against him. The judge decided termination was appropriate after considering L-T-’s inability to understand the charges against him, DHS’ refusal to submit the results of a court-ordered mental evaluation, pro bono counsel’s inability to effectively represent L-T-, and L-T-’s prolonged detention. 

On March 29, DHS appealed the IJ’s order to the Board of Immigration Appeals (BIA). The government argued that the IJ lacked authority to disregard regulations entitling DHS to appoint a deportation officer as L-T-’s custodian. The government further faulted the IJ for ordering a mental competency evaluation, and contended that its refusal to disclose the results of the examination did not prejudice L-T. In June, the BIA requested amicus briefs from  organizations including the LAC regarding the statutory and constitutional rights of noncitizens with mental disabilities in removal proceedings. 

In its brief, submitted in September 2010, the LAC contended that L-T-’s case was not the proper vehicle for resolving the numerous questions on which the BIA sought guidance. Instead, the LAC suggested that the rulemaking process, with outreach to a broad spectrum of stakeholders, represented a more appropriate way to proceed. The LAC argued that current laws and regulations are insufficient to ensure that noncitizens with mental disabilities are afforded full and fair immigration hearings; that removal proceedings should be terminated when the government prevents Immigration Judges from determining whether additional safeguards are needed; and that the Constitution may require the appointment of private counsel for noncitizens with mental disabilities individuals in certain cases. 

In November 2010, the BIA dismissed the matter after DHS withdrew its appeal, causing the Immigration Judge’s opinion to become the final agency decision. 

BIA Grants Remand Following Discovery of Traumatic Brain Injury
Matter of G-B-N- (BIA 2010), remanded Aug. 23, 2010.

In August 2010, the BIA remanded to an Immigration Judge the case of a longtime legal permanent resident from Vietnam who, due to a traumatic brain injury, the BIA found could not competently represent himself at a prior removal hearing. The respondent, G-B-N-, had lawfully entered the country in 1994 as the spouse of an Amerasian (an individual whose father served in the U.S. military). In 2003, while working on a fishing boat in Alaska, he struck his head and began suffering symptoms, such as severe headaches and vomiting, that required hospitalization.  In 2005, a neuropsychologist determined that G-B-N- had suffered a traumatic brain injury, though G-B-N’s wife and three daughters were not informed of the diagnosis.  

In 2008, the government initiated removal proceedings against G-B-N- based on a decade-old conviction for attempting to import marijuana. At a hearing, G-B-N-, who was not represented by counsel, informed the Immigration Judge that doctors had diagnosed him with a “mental problem,” and made numerous statements contradicting information in his application for cancellation of removal. For example, G-B-N- stated that he was born to a U.S. citizen and that both of his parents remained in Vietnam. (In truth, neither of G-B-N’s parents were U.S. citizens, and his father died when G-B-N- was a child.) G-B-N- also said he was born in 1939, rather than 1970. When asked to describe the hardship his deportation would cause him, he stated, simply, “I don’t know.”

After G-B-N- retained counsel, his family, who thought his condition was only temporary, learned for the first time of the neuropsychologist’s prior determination that the 2003 accident resulted in a traumatic brain injury, a diagnosis subsequently confirmed by another psychiatrist.  Based on the newly discovered information, counsel filed a motion to remand with the BIA, arguing that the IJ should have made a competency determination before conducting G-B-N-’s removal hearing. Ultimately, counsel for the government joined the motion, and the BIA remanded the case to the IJ on August 23, 2010.   

Proposed Class Seeks Creation of System to Make Competency Determinations and Appoint Counsel
Franco-Gonzalez v. Holder
, No. 10-02211 (C.D. Cal. class certification granted Nov. 21, 2011)

In March 2010, attorneys from the ACLU of Southern California filed a petition for writ of habeas corpus in a California federal district court on behalf of Jose Antonio Franco-Gonzalez, 29, a Mexican citizen suffering from moderate mental retardation (a condition defined by an IQ level of between 35 and 55). The government terminated removal proceedings against Franco-Gonzalez in 2005 following a psychological evaluation, but he subsequently remained in immigration custody for more than five years. The habeas petition sought his release under Zadvydas v. Davis, 533 U.S. 678 (2001), the Supreme Court decision prohibiting the government from detaining noncitizens whose removal from the country is not reasonably foreseeable. The petition also argued that Franco-Gonzalez was entitled to an individualized hearing to determine the appropriateness of his detention under the Rehabilitation Act of 1973, a statute barring federal agents and grant recipients from engaging in discrimination on account of physical or mental disabilities. The filing of the habeas petition prompted the government to release Franco-Gonzalez from custody. 

On August 2, 2010, lawyers filed a class action on behalf of Franco-Gonzalez and other noncitizens with mental disabilities. The proposed class includes all individuals who are or will be in DHS custody for removal proceedings in California, Arizona, and Washington, who have been identified by medical personnel, DHS or an immigration judge as having a serious mental disorder that may render them incompetent to represent themselves in removal proceedings, and who are presently unrepresented.

The complaint alleges violations of the INA, the Rehabilitation Act, the Administrative Procedure Act and the Due Process Clause and states that federal statutory law as well as the Constitution require the government to 1) conduct competency evaluations for all those who the government knows or should know may be incompetent to represent themselves, 2) appoint attorneys for those found in need of counsel as a result of the evaluations, and 3) conduct custody hearings for those who face prolonged detention as a result of the delays caused by their mental disabilities. The complaint requests class certification, injunctive and declaratory relief and attorneys fees.  An amended complaint was filed on November 2, 2010.

In December 2010, the court ruled on two plaintiffs’ motion for a preliminary injunction (filed on August 16, 2010) and held that the Rehabilitation Act requires the government to provide a "qualified representative" for two individual plaintiffs or a bond hearing, or both.  The court subsequently granted two other plaintiffs’ motions for preliminary injunctions on May 4, 2011 and August 2, 2011.

In November 2011, following class discovery, the court granted the plaintiffs’ motion for class certification.  The plaintiff class certified by the court includes “[a]ll individuals  who are or will be in DHS custody for removal proceedings in California, Arizona, and Washington who have been identified by or to medical personnel, DHS, or an Immigration Judge, as having a serious mental disorder or defect that may render them incompetent to represent themselves in detention or removal proceedings, and who presently lack counsel in their detention or removal proceedings.”  The court also certified two sub-classes of plaintiffs who have a serious mental disorder or defect that renders them incompetent to represent themselves in immigration proceedings (Plaintiff Sub-Class 1) and those who have been detained for more than six months (Plaintiff Sub-Class 2). 

The court rejected the defendants’ argument that the BIA’s decision in Matter of M-A-M-, 25 I&N Dec. 474 (BIA 2011), undermined the plaintiffs’ request for class treatment because it gave immigration judges a framework to assess a respondent’s competency.  Noting that M-A-M did not entitle respondents displaying indicia of mental competency to mental competency evaluations, appointment of a Qualified Representative, or any safeguards different from those prescribed by existing statutes and regulations, the court concluded that the relief sought by the plaintiffs had not been supplanted by the BIA’s decision.

Defendants moved for the Court to amend the class certification, or in the alternative, reconsider the class certification issued in November 2011 due to a new decision by the Ninth Circuit in 2012 stating that “no class may be certified that contains members lacking Article III standing.”  Defendants asked the court to amend the class to exclude unnamed class members (1) who are not yet but “will be” in DHS custody for removal proceedings and (2) who have been diagnosed with a serious mental disorder or defect that “may” render them incompetent to represent themselves in immigration proceedings.   On August 27, 2012, the Court denied the defendants’ motion because the unnamed class members “are all subject to a system that lacks sufficient safeguards to protect their rights” and as such, suffered an injury in fact.

U.S. Citizen with Mental Disabilities Files Suit over Wrongful Deportation
Lyttle v. United States, et al., No. 4:11-152 (M.D. Ga., filed Oct. 13, 2010); No. 10-142 (E.D.N.C. filed Oct. 13, 2010)

On October 13, 2010, Mark Lyttle, a U.S. citizen with diminished mental capacity, filed suit in both the United States District Court for the Eastern District of North Carolina and the United States District Court for the Northern District of Georgia against numerous state agencies and federal officials, seeking damages resulting from his wrongful detention and deportation to Mexico. 

According to the complaints, Mr. Lyttle, who was born in the United States, was referred to ICE by the North Carolina Department of Corrections as a suspected undocumented immigrant from Mexico while he was serving a short criminal sentence for a misdemeanor in North Carolina. Mr. Lyttle then spent 51 days in a federal immigration detention facility in Georgia, where officials failed to investigate his repeated claims that he was a U.S. citizen. ICE ultimately removed Mr. Lyttle to Reynosa, Mexico, following a removal hearing during which he received no legal assistance. Mr. Lyttle then spent four months wandering through Central America until he was brought to the U.S. Embassy in Guatemala City, where authorities located his relatives in the United States and issued him a U.S. passport.  Mr. Lyttle was detained upon his arrival in the United States, at which time ICE officials ignored his passport and adoption records and issued an expedited removal order against him.  Mr. Lyttle’s family was able to intervene before ICE succeeded in removing Mr. Lyttle from the United States again, and he was released after two days in detention.

The complaint brought in the Eastern District of North Carolina sought monetary damages under Bivens based on alleged violations of the Fourth and Fifth Amendments.  The complaint further alleged, inter alia, causes of action under 42 U.S.C. § 1983 based on alleged violations of the Fifth and Fourteenth Amendments, and causes of action under the Federal Tort Claims Act (FTCA) and the North Carolina Tort Claims Act.  The United States submitted a motion to dismiss all claims against it brought under the FTCA, and the ICE defendants submitted a motion to dismiss all counts against them brought under Bivens for violations of Mr. Lyttle’s Fourth and Fifth Amendment rights. Judge James C. Dever submitted the United States’ motion to dismiss and the ICE defendants’ motion to dismiss to a magistrate judge, who then made recommendations to Judge Dever regarding the motions’ merits.  Magistrate Judge Williams A. Webb recommended to deny the United States’ motion to dismiss which relied upon the discretionary function exception and the due care exception to the FTCA.  Judge Webb also recommended that the United States’ motion to dismiss for failure to state claims for false imprisonment, negligence, and intentional infliction of emotional distress be denied.  He did however grant the United States’ motion to dismiss based on the foreign country exception to the FTCA, thus recommending that Mr. Lyttle’s claims be dismissed to the extent he seeks damages for those injuries which occurred outside the United States.  Judge Webb then recommended that the ICE defendants’ motion to dismiss Mr. Lyttle’s Fourth Amendment claim be denied.  On July 27, 2012, the district court granted a joint motion to stay all proceedings for 60 days in order to allow the parties to finalize a settlement agreement. 

The complaint brought in the Northern District of Georgia sought monetary damages under Bivens based on alleged violations of the Fourth and Fifth Amendments.  The complaint further alleged causes of action under Section 504 of the Rehabilitation Act of 1973, the FTCA, 42 U.S.C. § 1983, and Georgia tort law.  Mr. Lyttle also sought injunctive relief to prevent future detention and deportation.  The complaint was transferred to the Middle District of Georgia on October 6, 2011.  In March 2012, the Georgia court granted in part and denied in part the defendants’ motion to dismiss.  Rejecting the defendants’ claim that the Immigration and Nationality Act is sufficiently comprehensive and adequate to preclude a Bivens action by a U.S. citizen, the court allowed Lyttle to pursue his Fourth Amendment claims of unlawful seizure and his Fifth Amendment due process claims against certain defendants who were not entitled to qualified immunity.  The court also allowed Lyttle’s FTCA claims against the United States to proceed.  However, Lyttle’s Fifth Amendment equal protection claims were dismissed for lack of specificity, and the court found that he lacked standing to seek injunctive relief.  On July 27, 2012, the court granted a joint motion to stay all proceedings until September 14, 2012 so that the parties could finalize a settlement agreement for the remaining claims.

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