MENTAL HEALTH ISSUES

In a recent Immigration Law Advisor article, Immigration Judge Mimi Tsankov observes that one of the great challenges facing immigration courts today involves respondents who are incompetent. Notwithstanding that the Immigration and Nationality Act contemplates safeguards to protect the rights and privileges of aliens with mental health issues, Immigration Judges must largely operate in the absence of regulatory guidance. As Judge Tsankov states: “Immigration Judges are challenged to provide fundamental fairness to individuals who may not be able to represent themselves effectively and cannot obtain representation. Immigration Judges do so within a limited regulatory framework and with sparse precedent case law.” Mimi E. Tsankov, Incompetent Respondents in Removal Proceedings, Immigration Law Advisor 1 (Apr. 2009), available at http://www.justice.gov/eoir/vll/ILA-Newsleter/ILA%202009/vol3no4.pdf.

A new Benchbook section on Mental Health Issues is intended to inform the Immigration Judge’s decision-making process in this context by highlighting relevant authority and persuasive references, by suggesting best practices, and by offering links to external reference tools. The first part of this Benchbook section provides Immigration Judges with an overview of mental health issues related to immigration court proceedings, including an introduction to and comparison with this issue in the criminal and civil contexts. The second part provides Judges with guidance on identifying mental health issues and offers suggestions to handle and address them. The third part provides Judges with suggested language and templates to employ in the adjudication of such cases. The fourth and final part provides Judges with a subject-specific library comprised of both locally-hosted documents and links to external resources.