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Safeguards in Removal Proceedings for Noncitizens Who Lack Mental Competency

Last Updated: 
Fri, Dec 20, 2013

Untold numbers of noncitizens with mental disabilities have been ordered deported without access to counsel or an assessment of their cognitive capabilities. This issue has taken on greater urgency following extensive reports of the challenges that immigrants who lack mental competency face in removal proceedings, as well as alarming accounts of the mistaken deportation of U.S. citizens with mental disabilities. The American Immigration Council has intervened in several cases at the Board of Immigration Appeals (BIA) to address the scope of procedural safeguards needed to ensure fair hearings for noncitizens who lack mental competency.

CASES | ADVOCACY | RESOURCES

CASES

Matter of E-S-I-, 26 I&N Dec. 136 (BIA 2013). In 2011, an immigration judge terminated removal proceedings after finding that DHS had failed to properly serve a Notice to Appear (NTA) on a respondent who was not competent to participate in his case. DHS appealed to the BIA. The American Immigration Council, in collaboration with AILA and other organizations, filed an amicus brief, which addressed the requirements for serving NTAs on unrepresented individuals who are not competent to represent themselves in court. The brief argued that noncitizens with serious mental disorders cannot receive fair hearings without legal representation and that they are entitled to such representation from the outset of proceedings. The BIA did not address whether the respondent required representation or other assistance at his hearing. Instead, the Board provided guidelines for service of NTAs on individuals with mental competency issues, reinstated proceedings against the respondent, and remanded the case so that the immigration judge could apply the guidelines.

In re J-B-Z- (BIA Jun. 1, 2011). In December 2010, an immigration judge terminated removal proceedings against B-Z-, a lawful permanent resident diagnosed with paranoid schizophrenia, because he was unable to effectively communicate with his counsel or participate in his representation. DHS appealed. The American Immigration Council, in collaboration with Texas Appleseed, filed an amicus brief. Following the BIA’s published decision in Matter of M-A-M-, 25 I&N Dec. 474 (BIA 2011), which articulated safeguards for individuals in removal proceedings who lack mental competency, the BIA remanded this case. Although the previous ruling already “generally comport[ed] with the approach set forth in M-A-M-,” the BIA directed the immigration judge to consider administrative closure as an alternate safeguard. Read our statement on the case.

In re L-T- (BIA appeal dismissed Nov. 8, 2010). In February 2010, an immigration judge terminated removal proceedings against L-T-, a lawful permanent resident, due to concerns about his ability to represent himself at his removal hearing. The judge considered the respondent’s inability to understand the charges against him, his prolonged detention, DHS’ refusal to submit the results of a court-ordered mental evaluation, and pro bono counsel’s inability to effectively represent L-T. DHS appealed. The agency asserted that the immigration judge lacked authority to disregard regulations entitling DHS to appoint a deportation officer as L-T-’s custodian and should not have ordered a mental competency evaluation. Further, DHS maintained that its refusal to disclose the results of the examination did not prejudice L-T. The American Immigration Council filed an amicus brief in collaboration with the American Immigration Lawyers Association and the Pennsylvania Immigrant Resource Center. In November 2010, the BIA dismissed the matter after DHS withdrew its appeal; the IJ’s opinion became the final agency decision. Read our statement on the case.

ADVOCACY

Letter to the Acting Inspector General and the Assistant Inspector General for Inspections (submitted June 14, 2011). This sign-on letter responds to the Office of Inspector General's report on Management of Mental Health Cases in Immigration Detention (OIG-11-62) and offers additional recommendations to improve the delivery of mental health care in immigration detention.

Letter to DOJ (submitted October 29, 2010). This sign-on letter recommends concrete steps that DOJ can take to address difficulties confronted by detained noncitizens with mental disabilities in immigration proceedings.

Letter to DHS (submitted October 29, 2010). This sign-on letter recommends concrete steps that DHS can take to address difficulties confronted by detained noncitizens with mental disabilities in immigration proceedings.

Letter to Attorney General Holder (submitted July 24, 2009). This letter requests that the Department of Justice implement safeguards to protect the rights of respondents with mental disabilities. Although the letter outlined important changes that DOJ should make to protect the rights of individuals with mental disabilities in immigration proceedings, DOJ responded that DHS was in a better position to address the concerns that had been raised.”

RESOURCES

Compilation of relevant decisions: Between 2006 and 2011, the LAC maintained a webpage with a sampling of decisions regarding the procedural rights of individuals with mental competency issues in removal proceedings. While certain recent decisions have been added to the page and older materials removed, practitioners should conduct their own research to find the most up-to-date decisions in the jurisdiction in which they practice.

Practice Advisories

LAC Practice Advisory: Representing Clients with Mental Competency Issues under Matter of M-A-M- (November 30, 2011). This Practice Advisory provides a detailed analysis of the BIA's precedent decision in Matter of M-A-M- and offers strategic advice on how to address issues that may arise in the context of representing noncitizens with mental competency issues.

Reports

CAIR Coalition, Practice Manual for Pro Bono Attorneys Representing Detainees with Mental Disabilities in the Detention and Removal System (January 2013)

Human Rights Watch, Deportation by Default: Mental Disability, Unfair Hearings, and Indefinite Detention in the U.S. Immigration System (July 2010)

Immigration Policy Center Fact Sheet, Non-Citizens with Mental Disabilities: The Need for Better Care in Detention and in Court (November 2010)

Texas Appleseed, Justice for Immigration’s Hidden Population (March 2010)