A Brief History of those Provisions in the Act and Regulations Addressing Respondents with Mental Health Issues


Section 242(b) of the 1952 Act provided, in part, that:

Determination of deportability in any case shall be made only upon a record made in a proceeding before a special inquiry officer, at which the alien shall have reasonable opportunity to be present, unless by reason of the alien’s mental incompetency it is impracticable for him to be present, in which case the Attorney General shall prescribe necessary and proper safeguards for the rights and privileges of such alien.

Immigration and Nationality Act, Pub. L. No. 82-414, § 242(b), 66 Stat. 162, 208 (1952).


From 1957 to 1997, 8 C.F.R. § 242.11 provided that:

When it is impracticable for the respondent to be present at the hearing because of mental incompetency, the guardian, near relative, or friend who was served a copy of the order to show cause shall be permitted to appear on behalf of the respondent. If such a person cannot reasonably be found or fails or refuses to appear, the custodian of the respondent shall be requested to appear on behalf of the respondent.

And § 242.16(c) provided, in part, that:

The special inquiry officer shall not accept an admission of deportability from an unrepresented respondent who is incompetent or under age 16 and is not accompanied by a guardian, relative, or friend; nor from an officer of an institution in which a respondent is an inmate or patient. When, pursuant to this paragraph, the special inquiry officer may not accept an admission, he shall direct a hearing on the issues.

22 Fed. Reg. 9,765, 9,797 (Dec. 6, 1957).


Enacted as part of IIRIRA, section 240(b)(3) of the Immigration and Nationality Act, 8 U.S.C. § 1229a(b)(3), provides that:

If it is impracticable by reason of an alien’s mental incompetency for the alien to be present at the proceeding, the Attorney General shall prescribe safeguards to protect the rights and privileges of the alien.

Pub. L. No. 104-208, Div. C, Title III, § 304(a)(3), 110 Stat. 3009-589 (Sept. 30, 1996). This language appears to have its origin in, a bill introduced in the previous Congress on February 8, 1994. That section provided, in part, that:

An alien shall have a reasonable opportunity to attend the proceeding for the alien under this section. If it is impracticable for the alien to attend because of mental incompetence, the proceeding may be conducted without the alien. The Attorney General shall prescribe safeguards for the rights and privileges of an alien who does not attend because of mental incompetence.

H.R. 3809, 103rd Cong. § 6532 (1994). Similar language then appeared in H.R. 1292, 104th Cong. § 6532 (1995), in H.R. 1915, 104th Cong. § 304(a)(3) (1995), and in H.R. 2202, 104th Cong. § 304(a)(3) (1995).


In 1997, the regulatory sections were modified and moved to 8 C.F.R. §§ 240.4 and .10(c). Section 240.4 provided that:

When it is impracticable for the respondent to be present at the hearing because of mental incompetency, the attorney, legal representative, legal guardian, near relative, or friend who was served with a copy of the notice to appear shall be permitted to appear on behalf of the respondent. If such a person cannot reasonably be found or fails or refuses to appear, the custodian of the respondent shall be requested to appear on behalf of the respondent.

And § 240.10(c) provided, in part, that:

The immigration judge shall not accept an admission of removability from an unrepresented respondent who is incompetent or under the age of 18 and is not accompanied by an attorney or legal representative, a near relative, legal guardian, or friend; nor from an officer of an institution in which a respondent is an inmate or patient. When, pursuant to this paragraph, the immigration judge does not accept an admission of removability, he or she shall direct a hearing on the issues.

62 Fed. Reg. 10,312, 10,368, 10,369 (Mar. 6, 1997).


Following the enactment of the Homeland Security Act, Pub. L. No. 107-296, 116 Stat. 2135 (Nov. 25, 2002), in 2003, the sections where transferred and redesignated as §§ 1240.4 and .10(c). Accordingly, § 1240.4 now provides that:

When it is impracticable for the respondent to be present at the hearing because of mental incompetency, the attorney, legal representative, legal guardian, near relative, or friend who was served with a copy of the notice to appear shall be permitted to appear on behalf of the respondent. If such a person cannot reasonably be found or fails or refuses to appear, the custodian of the respondent shall be requested to appear on behalf of the respondent.

And§ 1240.10(c) now provides, in part, that:

The immigration judge shall not accept an admission of removability from an unrepresented respondent who is incompetent or under the age of 18 and is not accompanied by an attorney or legal representative, a near relative, legal guardian, or friend; nor from an officer of an institution in which a respondent is an inmate or patient. When, pursuant to this paragraph, the immigration judge does not accept an admission of removability, he or she shall direct a hearing on the issues.

68 Fed. Reg. 9,824 (Feb. 28, 2003).