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. This Benchbook section 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.
The 1952 Act directed the Attorney General to prescribe safeguards necessary and proper to protect the rights and privileges of respondents faced with mental health issues. See Immigration and Nationality Act, Pub. L. No. 82-414, § 242(b), 66 Stat. 162, 208 (1952). As the accompanying history details, the Attorney General first promulgated such regulations in 1957. See 22 Fed. Reg. 9,765, 9,797 (Dec. 6, 1957). Those regulations remained unchanged until 1997, see 62 Fed. Reg. 10,312, 10,368, 10,369 (Mar. 6, 1997), when the regulations were amended following the enactment of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), which worked fundamental changes to United States immigration law. The newly enacted provision, IIRIRA § 304(a)(3), again directed the Attorney General to prescribe safeguards to protect the rights and privileges of aliens with mental health issues. See Pub. L. No. 104-208, Div. C, Title III, § 304(a)(3), 110 Stat. 3009, 3009-590 (Sept. 30, 1996). The 1997 regulatory amendments brought the regulations into conformity with IIRIRA’s new terminology, e.g., replacing “order to show cause” with “notice to appear,” replacing “special inquiry officer” with “immigration judge,” and replacing “deportability” with “removability,” but did not prescribe any new safeguards in response to section § 304(a)(3) of IIRIRA.
C. A Comparative Overview of Mental Health Issues in Immigration Law and Criminal and Civil Law
1. Mental Health Issues in the Immigration Law Context
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). Section 1240.4, 8 C.F.R., 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 section 1240.10(c) 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). As previously noted, the regulations have remained largely intact since their initial promulgation in 1957. The above-cited regulations appear as amended following the 1996 enactment of IIRIRA and the 2002 enactment of the Homeland Security Act, Pub. L. No. 107-296, 116 Stat. 2135 (Nov. 25, 2002).
Considering proceedings conducted under 8 C.F.R. § 1240.4’s predecessor, 8 C.F.R. § 242.11 (1976), in Nee Hao Wong v. INS, 550 F.2d 521 (9th Cir. 1977), the Court of Appeals for the Ninth Circuit held that due process does not require that deportation proceedings be postponed until an alien is competent to participate intelligently in the proceedings. Specifically, in a case where the “petitioner was present and was accompanied by his state court appointed conservator, who testified fully on his behalf, and by his counsel,” the panel found that:
The Immigration and Naturalization Act contemplates that deportation proceedings may be had against mental incompetents. Indeed, under certain circumstances (not present here) mental problems constitute a ground for exclusion, 8 U.S.C. § 1182(a)(2), (3), and (4) (1970), and for deportation, 8 U.S.C. § 1251(a)(3) (1970). Section 242(b) of the Act, 8 U.S.C. § 1252(b) (1970), provides that an alien who is mentally incompetent shall have his rights and privileges protected through prescribed “necessary and proper safeguards.”
Id. at 523. The panel further concluded that the Nee Hao Wong’s “lack of competency did not prejudice him,” finding that,
On the contrary, it served to make out his case for him, and the immigration judge found that deportation would indeed constitute a hardship. Petitioner’s contention that he should have been granted a continuance of the hearing until he had regained competency presents a paradox reminiscent of “Catch 22.” His condition of incompetence established hardship. If the hearing were to be postponed until competence was regained, the ground on which suspension was sought would then no longer exist. We cannot agree that it was procedurally unfair to conduct the hearing at a time when the fact of hardship was self-evident rather than to wait until such time as it could no longer be asserted.
The petitioner in Nee Hao Wong was represented by counsel. Similarly, much of the case law evaluating the due process claims of aliens with mental health issues has involved those who were represented by counsel in proceedings. See, e.g., Munoz-Monsalve v. Mukasey, 551 F.3d 1 (1st Cir. 2008) (holding that the Immigration Judge’s failure to sua sponte order a competency evaluation of a represented alien did not violate the alien’s due process rights as it is the advocate’s role, not the Immigration Judge’s, to broach the issue of mental competence as the alien’s incompetence was not evident from the record of the hearing); Brue v. Gonzales, 464 F.3d 1227 (10th Cir. 2006) (holding that the Immigration Judge had no obligation under either the statute or the regulation to consider the represented alien’s mental competency because the procedural safeguards they envision were already in place); Sanchez-Salvador v. INS, 33 F.3d 59, 1994 WL 441755, at *1 (9th Cir. Aug. 15, 1994) (unpublished table decision) (“Lack of competency, however, does not prevent a judge from determining either deportability or whether to grant relief. As we held in Nee Hao Wong v. INS, . . . an alien can obtain a full and fair hearing despite being incompetent. This was the case here. Sanchez-Salvador's incompetence did not prevent him from presenting, through counsel, a strong case that relief is warranted.”); Matter of James, A040 015 111, 2009 WL 2171712 (BIA June 26, 2009) (unpublished) (“In this instance, . . . the respondent’s counsel failed to request that an evaluation of the respondent's competency be undertaken. The failure to raise the competency issue in a timely manner renders an ensuing appellate claim of error on this basis particularly weak. . . . Moreover, contrary to the substantive due process protection from trial and conviction to which a mentally incompetent criminal defendant is entitled, removal proceedings may go forward against incompetent aliens.”); Matter of Vidal Sanchez, A037 616 891, 2006 WL 2008263 (BIA May 24, 2006) (unpublished) (“The respondent was represented at the hearing; therefore, his rights were adequately protected.”); Matter of H-, 6 I&N Dec. 358 (BIA 1954) (holding that the requirements of a fair hearing had not been violated in deportation proceedings involving an alien of unsound mind, where notice of hearing has been served on the alien and his wife, arrangements were made to protect alien’s interests by having a doctor in attendance at the hearing, and alien was represented by legal counsel who was given the privilege of introducing evidence and cross-examining witnesses). An alternative line of case law has found that respondents did not sufficiently prove that any safeguards were indicated. See, e.g., Nikolov v. Gonzales, 204 Fed. Appx. 80 (2d Cir. 2006) (unpublished); Nelson v. INS, 232 F.3d 258, 261-62 (1st Cir. 2000).
The crucial question appears to be whether safeguards, i.e., representation in the form of counsel and/or a guardian ad litem, are necessary to ensure a fundamentally fair proceeding. The Sixth Circuit has held that “[t]he only time a competency hearing may be required in the immigration context is to determine whether an unrepresented alien shows sufficient evidence of incompetency to require an attorney or guardian to represent the alien’s interests at the proceedings.” Jaadan v. Gonzales, 211 Fed. Appx. 422, 430 (6th Cir. 2006) (unpublished). Accord Mohamed v. TeBrake, 371 F. Supp. 2d 1043, 1046 (D. Minn. 2005) (cited in United States v. Mandycz, 447 F.3d 951, 962 (6th Cir. 2006)) (holding that an unrepresented alien had a regulatory and possibly a due-process right to a competency hearing to determine whether representative should be appointed under 8 C.F.R § 1240.4, which provides that an attorney or other representative should be appointed “[w]hen it is impracticable for the respondent to be present at the hearing because of mental incompetency,” but noting that “the law specifically contemplates that removal proceedings may go forward against incompetent aliens and that incompetent aliens may be deported”). Based on a threshold inquiry into the sufficiency of evidence of mental competency, the Eighth Circuit has held that [t]he lack of a competency hearing was not an abuse of discretion and did not violate Mohamed's right to procedural due process” where a pro se respondent “answered the charges against him, testified in support of his claim for withholding of removal, and arranged for two witnesses to appear on his behalf.” Mohamed v. Gonzales, 477 F.3d 522, 527 (8th Cir. 2007). See also Matter of Smikle, A041 361 229, 2007 WL 2463933 (BIA Aug. 6, 2007) (unpublished) (finding that “the respondent ha[d] presented no evidence in support of his claim that he [wa]s mentally incompetent”); Matter of O-, A045 080 822, 2007 WL 4707468 (BIA Nov. 16, 2007) (unpublished) (finding that, “[w]hile a formal competency hearing was not held by the Immigration Judge, he did provide a thorough discussion of the psychiatric examinations and treatment records with a subsequent finding of fact that the respondent did not suffer with any significant symptoms of a psychiatric disorder when compliant with her medication”). Similarly, the First Circuit has indicated that Immigration Judges might conduct a threshold inquiry prior to requesting a custodian or other party to appear on an alien’s behalf. See Nelson, 232 F.3d at 262 (“Regulation 240.4 is not applicable to this case, simply because Nelson’s health-related complaints do not rise to the level of mental incompetence contemplated by Regulation 240.4.”).
As Immigration Judge Tsankov observed,
the Board has yet to hold that a respondent’s due process rights have been violated because of incompetency during removal proceedings. The Board has reached its conclusions in two manners: (1) by finding that a given respondent, who often times has appeared pro se, has failed to demonstrate incompetence through testimonial and documentary evidence; and (2) by finding that despite proffering such evidence, a respondent who was represented was nevertheless able to understand the nature of the proceedings and the charges against him.
For respondents who are adjudged by an Immigration Judge to be incompetent and who are unrepresented by an attorney or other prescribed representative, there are no cases that consider how to conduct proceedings so that the safeguards of 8 C.F.R. § 1240.4 are met.
Mimi E. Tsankov, Incompetent Respondents in Removal Proceedings, Immigration Law Advisor 2 (Apr. 2009), available at http://www.justice.gov/eoir/vll/ILA-Newsleter/ILA%202009/vol3no4.pdf. Accordingly, these being open questions, the next two sections will examine the much more developed criminal and civil law. To be clear, defendants in criminal proceedings are entitled to greater constitutional protections than respondents in removal proceedings. The survey below of competency issues in other legal contexts is meant to inform the Immigration Judges' legal understanding of mental competency; it is not intended to suggest that the constitutional protections extended to criminal defendants are applicable to aliens in removal proceedings.
2. Mental Health Issues in the Criminal Context
The law is significantly more developed in the criminal context, where federal and state judges have the benefit of both significant legislation and precedent. Much of this law is rooted in constitutional precepts that do not apply to civil, immigration proceedings. Nonetheless, the law governing mental health issues in the criminal context may inform your decision-making with respect to a determination of fundamental fairness. According to studies conducted in the 1990s,
It is estimated that between 25,000 and 39,000 competency evaluations are conducted in the United States annually (Hoge et al., 1997; Steadman & Hartstone, 1983). Stated somewhat differently, between 2% and 8% of all felony defendants are referred for competency evaluations (Bonnie, 1992; Golding, 1993; Hoge, Bonnie, Poythress, & Monahan, 1992).
Ronald Roesch, Patricia A. Zapf, Stephen L. Golding & Jennifer L. Skeem, Defining and Assessing Competency to Stand Trial, in HANDBOOK OF FORENSIC PSYCHOLOGY 327
(Irving B. Weiner & Allen K. Hess, eds., 2d ed. 1999).
In Dusky v. United States, the Supreme Court of the United States, in a per curium opinion, held that
[I]t is not enough for the district judge to find that “the defendant (is) oriented to time and place and (has) some recollection of events,” but that the “test must be whether he has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding-and whether he has a rational as well as factual understanding of the proceedings against him.”
362 U.S. 402, 402 (1960) (quoting the government’s brief). See also Cooper v. Oklahoma, 517 U.S. 348, 354, 368 (1996) (holding that the criminal prosecution “of an incompetent defendant violates due process” and that “[t]he test for competence to stand trial . . . is whether the defendant has the present ability to understand the charges against him and communicate effectively with defense counsel”); Drope v. Missouri, 420 U.S. 162, 171 (1975) (“It has long been accepted that a person whose mental condition is such that he lacks the capacity to understand the nature and object of the proceedings against him, to consult with counsel, and to assist in preparing his defense may not be subjected to a trial.”); Pate v. Robinson, 383 U.S. 375, 378, 387 (1966) (noting that “the conviction of an accused person while he is legally incompetent violates due process” (citing Bishop v. United States, 350 U.S. 961 (1956)), and that, “[i]n the event a sufficient doubt exists as to his present competence such a hearing must be held”).
The Dusky standard involves the defendant’s capacity to understand the criminal process as it applies to him or her and the defendant’s ability to function in that process; focuses on the defendant’s present ability to consult with counsel and to understand the proceedings; emphasizes the defendant’s capacity, as opposed to willingness, to relate to counsel and understand the proceedings; requires that the defendant possess a reasonable degree of understanding, suggesting that the test as applied to a particular case is a flexible one; and emphasizes the presence or absence of “rational” and “factual” understanding. Gary B. Melton, John Petrila, Norman G. Paythress, Christopher Slobogin, Phillip M. Lyons, Jr., & Randy K. Otto, Psychological Evaluations for the Courts: A Handbook for Mental Health Professionals and Lawyers 127-28 (3d ed. 2007). As the Ninth Circuit has noted, “Whether a defendant is capable of understanding the proceedings and assisting counsel is dependent upon evidence of the defendant’s irrational behavior, his demeanor in court, and any prior medical opinions on his competence.” Miles v. Stainer, 108 F.3d 1109, 1112 (9th Cir. 1997).
This standard is essentially codified at 18 U.S.C. § 4241, et seq. Under the procedures specified therein:
[T]he defendant or the attorney for the Government may file a motion for a hearing to determine the mental competency of the defendant. The court shall grant the motion, or shall order such a hearing on its own motion, if there is reasonable cause to believe that the defendant may presently be suffering from a mental disease or defect rendering him mentally incompetent to the extent that he is unable to understand the nature and consequences of the proceedings against him or to assist properly in his defense.
Id. § 4241(a). Should a court find such a hearing is necessary, it is conducted pursuant to 18 U.S.C. § 4247, which the Ninth and Fifth Circuits have held provides that the government has the burden of demonstrating by a preponderance of the evidence that the defendant is competent to stand trial. See United States v. Frank, 956 F.2d 872, 875 (9th Cir. 1991); United States v. Hoskie, 950 F.2d 1388, 1392 (9th Cir. 1991); United States v. Hutson, 821 F.2d 1015, 1018 (5th Cir. 1987) (“If a meaningful hearing can be held, the state also bears the burden of proof on the issue of competency.”). However, “[i]n performing its fact-finding and credibility functions, a district court is free to assign greater weight to the findings of experts produced by the Government than to the opposing opinions of the medical witnesses produced by the defendant.” United States v. Gastelum-Almeida, 298 F.3d 1167, 1772 (9th Cir. 2002) (quoting Frank, 956 F.2d at 875).
A defendant cannot waive the issue of his or her competence to stand trial. See Odle v. Woodford, 238 F.3d 1084, 1089 n.5 (9th Cir. 2001) (“A petitioner who may be incompetent cannot ‘knowingly or intelligently “waive” his right to have the court determine his capacity to stand trial,’ nor should he ‘be presumed to possess sufficient intelligence that he will be able to adduce evidence of his incompetency which might otherwise be within his grasp.’” (quoting Pate, 383 U.S. at 384, and Medina v. California, 505 U.S. 437, 450 (1992))).
Another line of cases has focused on the standard to be applied where potentially incompetent respondents seek to proceed pro se. In Godinez v. Moran, 509 U.S. 389 (1993), an appeals court required a defendant seeking to waive his right to counsel to satisfy a higher mental competency standard than the standard set forth in Dusky. The Supreme Court “reject[ed] the notion that competence to plead guilty or to waive the right to counsel must be measured by a standard that is higher than (or even different from) the Dusky standard.” Id. at 398. This holding was recently overturned in Indiana v. Edwards, 128 S.Ct. 2379 (2008), where the Court held that the paramount import of adequate representation requires a higher competency standard to apply in this context. In Edwards, the Supreme Court, noting that “[m]ental illness itself is not a unitary concept,” id. at 2386, held that the “Constitution permits States to insist upon representation by counsel for those competent enough to stand trial under Dusky but who still suffer from severe mental illness to the point where they are not competent to conduct trial proceedings by themselves,” id. at 2388. Thus, as one commentator recently observed, “the Court held that the Constitution supports a higher competency standard for proceeding pro se than for proceeding to trial with representation.” Anne S. Kimbol, Competency Does Not Always Mean Competency, According to the Supreme Court, Health Law Perspectives (Aug. 2008), available at http://www.law.uh.edu/healthlaw/perspectives/homepage.asp.
Edwards also illustrates that competency is not a static concept. The case involved a defendant who went through numerous competency hearings before he was found competent to stand trial (but not to represent himself). By analogy to our civil proceedings, the Immigration Judge may wish to inquire of counsel whether issues of competency make this an appropriate case for administrative closure until the respondent can receive proper psychiatric care, with the aim that he or she is then able to understand the nature of the proceedings.
A third line of cases has focused on the standard for determining the post-conviction competency of death row inmates. Notwithstanding that there was “no suggestion that [the petitioner] was incompetent at the time of his offense, at trial, or at sentencing,” determining that the State of Florida’s procedure for verifying the competency of a death row prisoner was constitutionally inadequate, in Ford v. Wainwright, the Supreme Court held that the petitioner was “denied a factfinding procedure ‘adequate to afford a full and fair hearing’ on the critical issue” of his competency prior to his execution. 477 U.S. 399, 401, 418 (1986). Specifically, the Court found that “[t]he first deficiency in Florida’s procedure lies in its failure to include the prisoner in the truth-seeking process,” id. at 413; that a “related flaw in the Florida procedure is the denial of any opportunity to challenge or impeach the state-appointed psychiatrists’ opinions,” id. at 415, and that “[p]erhaps the most striking defect in the procedures . . . is the State’s placement of the decision wholly within the executive branch,” id. at 416.
Finally, significant litigation has focused on those due process concerns implicated where inmates are involuntarily transferred to a mental health hospital, see, e.g., Vitek v. Jones, 445 U.S. 480 (1980), and/or involuntarily medicated with anti-psychotic drugs, see, e.g., Washington v. Harper, 494 U.S. 210 (1990). The Bureau of Prisons has promulgated regulations setting forth administrative procedures for making such determinations. See 28 C.F.R. § 549.43 (1992). Most recently, in Sell v. United States, the Court held that:
[T]he Constitution permits the Government involuntarily to administer antipsychotic drugs to a mentally ill defendant facing serious criminal charges in order to render that defendant competent to stand trial, but only if the treatment is medically appropriate, is substantially unlikely to have side effects that may undermine the fairness of the trial, and, taking account of less intrusive alternatives, is necessary significantly to further important governmental trial-related interests.
539 U.S. 166, 179 (2003).
3. Mental Health Issues in the Civil Context
The Federal Rules of Civil Procedure require that litigants deemed to have mental health issues have counsel and/or a guardian ad litem. Specifically, Rule 17 provides that “The court shall appoint a guardian ad litem for an infant or incompetent person not otherwise represented in an action or shall make such other order as it deems proper for the protection of the infant or incompetent person.” Fed. R. Civ. P. 17(c). The Federal Rules of Civil Procedure are not applicable in removal proceedings but have been cited by the BIA as a guide for issues arising in deportation proceedings. Matter of Taerghodsi,16 I&N Dec. 260 (BIA 1977).
This Rule has been applied to denaturalization proceedings. Noting that “‘[a] denaturalization suit is not a criminal proceeding’; it is a ‘civil case,’” the Sixth Circuit has held that, “Whereas due process protects incompetent criminal defendants by imposing an outright prohibition on trial, it protects incompetent civil parties by requiring the court to appoint guardians to protect their interests and by judicially ensuring that the guardians protect those interests.” United States v. Mandycz, 447 F.3d 951, 962 (6th Cir. 2006) (citing Schneiderman v. United States, 320 U.S. 118, 160 (1943), and Addington v. Texas, 441 U.S. 418, 424 (1979)).
Due process considerations have supported conducting such an inquiry even in the absence of the Rule’s mandate. The Second Circuit, noting that “a judgment entered against a mentally incompetent defendant not represented by a guardian or a guardian ad litem may be subject to collateral attack at a later date,” has held that, “[a]lthough we do not find that Rule 17(c) requires courts to inquire into the necessity of appointing a guardian ad litem absent verifiable evidence of mental incapacity, we also note that nothing in that rule prevents a district court from exercising its discretion to consider sua sponte the appropriateness of appointing a guardian ad litem for a litigant whose behavior raises a significant question regarding his or her mental competency.” Ferrelli v. River Manor Health Care Ctr., 323 F.3d 196, 203 (2d Cir. 2003).
D. Counsel’s Ethical Duties
While the American Bar Association’s Model Rules of Professional Conduct are not binding on Immigration Judges, they do illustrate the special obligations required of private counsel where clients have or are reasonably believed to have diminished capacity. Rule 1.14 provides:
(a) When a client's capacity to make adequately considered decisions in connection with a representation is diminished, whether because of minority, mental impairment or for some other reason, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client.
(b) When the lawyer reasonably believes that the client has diminished capacity, is at risk of substantial physical, financial or other harm unless action is taken and cannot adequately act in the client's own interest, the lawyer may take reasonably necessary protective action, including consulting with individuals or entities that have the ability to take action to protect the client and, in appropriate cases, seeking the appointment of a guardian ad litem, conservator or guardian.
(c) Information relating to the representation of a client with diminished capacity is protected by Rule 1.6. When taking protective action pursuant to paragraph (b), the lawyer is impliedly authorized under Rule 1.6(a) to reveal information about the client, but only to the extent reasonably necessary to protect the client's interests.
Part II will discuss how to identify and how to deal with mental health issues in immigration proceedings, with an eye towards suggesting best practices where such issues arise.
A. Identifying Mental Health Issues
Identifying mental health issues can be difficult, especially in a detained setting. The National Detainee Handbook indicates that all detainees “will undergo a thorough medical examination conducted by approved medical examiners within 14 days after [their] arrival. Medical staff or trained officers will also conduct a pre-screening interview to assess [detainees’] physical and mental health as part of the intake process.” Dep’t of Homeland Security, U.S. Immigration and Customs Enforcement, Office of Detention and Removal Operations, National Detainee Handbook 4 (Feb. 2009), available at http://www.ice.gov/doclib/about/offices/odpp/pdf/ice-detention-rpt.pdf . Ideally, in a detained setting, DHS counsel will alert the Immigration Judge to any mental health issues discovered upon intake or based on information contained in the Department’s file. Alternatively, the respondent, or the attorney, legal representative, legal guardian, near relative, or friend who was served with a copy of the Notice to Appear may assert or present evidence of a mental health issue.
Very often, however, Immigration Judges must determine whether any mental health issues exist based only on their observation of the respondent in proceedings or evidence of mental health issues contained in the Record of Proceeding. Because the inquiry may be necessary to ensure a fundamentally fair removal hearing, the Immigration Judge may need to face the unique issue of what evidence may be considered in making this determination. Where a mental health issue arises in a removal hearing, an Immigration Judge may find that it is necessary and appropriate to examine whether that issue arose during the course of a bond hearing to determine whether the respondent’s competence is an issue, notwithstanding 8 C.F.R. § 1003.19(d), which states that “an application or request of a respondent regarding custody or bond under this section shall be separate and apart from, and shall form no part of, any deportation or removal hearing or proceeding.” Immigration Judges might decide, however, that evidence presented solely for the purpose of making a competency determination is not necessary and appropriate for inclusion in a later bond and/or substantive removal hearing. A handbook on the subject notes that,
While some concerns have been raised about possible self-incrimination (Berry, 1973; Pizzi, 1977), all jurisdictions in the United States and Canada provide either statutorily or through case law that information obtained in a competency evaluation cannot be introduced on the issue of guilt unless the defendant places his or her mental state into evidence at either trial or at sentencing hearings (Estelle v. Smith, 1981; Golding & Roesch, 1988).
Ronald Roesch, Patricia A. Zapf, Stephen L. Golding & Jennifer L. Skeem, Defining and Assessing Competency to Stand Trial, in HANDBOOK OF FORENSIC PSYCHOLOGY 327
(Irving B. Weiner & Allen K. Hess, eds., 2d ed. 1999).
For an overview of the five main stages in the procedure for determining and disposing of cases involving mental health issues, see Thomas Grisso, Randy Borum, John F. Edens, Jennifer Moye, & Randy K. Otto, Evaluating Competencies: Forensic Assessments and Instruments 74-77 (2d ed. 2003) (Copyright Guilford Press. Reprinted with permission of The Guilford Press). For a list of possible things to look for in identifying mental health issues, see Gary B. Melton, John Petrila, Norman G. Paythress, Christopher Slobogin, Phillip M. Lyons, Jr., & Randy K. Otto, Psychological Evaluations for the Courts: A Handbook for Mental Health Professionals and Lawyers 130 (3d ed. 2007), and Thomas Grisso, Randy Borum, John F. Edens, Jennifer Moye, & Randy K. Otto, Evaluating Competencies: Forensic Assessments and Instruments 23 (2d ed. 2003). For a list of possible questions to ask in evaluating the same, see Judicial Council of California, Administrative Office of the Court, Handling Cases Involving Self-Represented Litigants: A Benchguide for Judicial Officers Chapter 11-6 (Jan. 2007), available at http://www.courtinfo.ca.gov/reference/documents/benchguide_self_rep_litigants.pdf.
Should professional evaluations be performed, Immigration Judges may be presented with professional competency appraisals. There are many tests that may be performed. An Immigration Judge may be presented any one of many tests. It is beyond the scope of this guide to list them all. For a comparison and assessment of the major competency evaluation formats, including the Competency Screening Test (CST), the Competency Assessment Instrument (CAI), the Interdisciplinary Fitness Interview (IFI), the Fitness Interview Test and the Fitness Interview Test - Revised (FIT and FIT-R), the Georgia Court Competency Test (GCCT), MacArthur Competence Assessment Tool - Criminal Adjudication (MacCAT-CA), and the Competence Assessment for Standing Trial for Defendants with Mental Retardation (CAST-MR), see Ronald Roesch, Patricia A. Zapf, Stephen L. Golding & Jennifer L. Skeem, Defining and Assessing Competency to Stand Trial, in HANDBOOK OF FORENSIC PSYCHOLOGY (Irving B. Weiner & Allen K. Hess, eds., 2d ed. 1999), available at http://home.comcast.net/~slgolding/publications/new_ist.htm . According to the Handbook,
The few studies of reliability that have been completed report that pairs of evaluators agree in 80% or more of the cases (Goldstein & Stone, 1977; Poythress & Stock, 1980; Roesch & Golding, 1980; Skeem et al., 1997). When evaluators are highly trained and use semi-structured competence assessment instruments, even higher rates of agreement have been reported (Golding et al., 1984; Nicholson & Kugler, 1991).
Id. at 327. For guidance on evaluating these competency appraisals, see Gary B. Melton, John Petrila, Norman G. Paythress, Christopher Slobogin, Phillip M. Lyons, Jr., & Randy K. Otto, Psychological Evaluations for the Courts: A Handbook for Mental Health Professionals and Lawyers Chapter 18 (3d ed. 2007).
In her article, Immigration Judge Tsankov highlighted some evidence that may be considered in assessing mental health issues:
(1) Affidavits and other documents from medical providers regarding “[d]iagnoses,” “[p]rior medications with dosages and whether the medications were effective in controlling the symptoms,” and “[p]rior physical therapy treatments”;
(2) Affidavits and other documents from medical providers regarding
“[c]urrent treatment,” including “current medications and whether they are effective in controlling . . . symptoms,” “side effects of each medication,” current
“[p]sychotherapy,” and current “[p]hysical therapy”;
(3) Affidavits and other documents from medical providers regarding “[p]rognosis,” including “[a]nticipated treatment” and likelihood of improvement/deterioration of symptoms;
(4) “School records regarding special education classes or individualized education plans,” transcripts, letters or affidavits from teachers, counselors or social workers regarding ability to learn;
(5) “Social Security Administration records or decisions regarding applications for disability benefits”; and
(6) Evidence of “[p]articipation in programs for individuals with mental illness and evaluations from those programs.”
Mimi E. Tsankov, Incompetent Respondents in Removal Proceedings, Immigration Law Advisor 18-19 (Apr. 2009), available at http://www.justice.gov/eoir/vll/ILA-Newsleter/ILA%202009/vol3no4.pdf (quoting Maria Baldini-Potermin, Past Persecution, Mental Illness and Humanitarian Asylum: Creating the Record to Win the Claim, 86 Interpreter Releases, No. 4, at 261, 265-66 (Jan. 26, 2009)).
With respect to making such determinations in the criminal context, the Ninth Circuit has held that, “In performing its fact-finding and credibility functions, a district court is free to assign greater weight to the findings of experts produced by the Government than to the opposing opinions of the medical witnesses produced by the defendant.” Gastelum-Almeida, 298 F.3d at1172 (quoting Frank, 956 F.2d at 875).
Immigration Judges should note that, at this point, it is an open question whether “competency” is a finding of fact or a conclusion of law. When conducting proceedings, Immigration Judges should remain cognizant of that, as it may impact the BIA’s standard of review.
B. Addressing Mental Health Issues
1. Three Rules of Thumb
First, effective communication is essential. This includes addressing the respondent in a way that he or she can understand, using direct, simple sentences, as well as making extra efforts to understand the respondent’s statements, and looking for others, like the respondent’s family or friends, who might be able to assist in communication. In her article, Immigration Judge Tsankov highlighted that:
The Department of Labor suggests that in communicating with individuals with cognitive disabilities, all parties should be prepared to repeat what is being said, provide extra time for decision-making and responses, offer assistance in understanding instructions, and practice patience, flexibility, and supportiveness. See Office of Disability Employment Policy, U.S. Dep’t of Labor, Communicating With and About People with Disabilities (Aug. 2002), http://www.dol.gov/odep/pubs/fact/comucate.htm. Taking time to make sure that the respondent understands all aspects of the proceedings is of utmost importance should a reviewing authority need to analyze the due process questions raised in a case.
Mimi E. Tsankov, Incompetent Respondents in Removal Proceedings, Immigration Law Advisor 18 (Apr. 2009), available at http://www.justice.gov/eoir/vll/ILA-Newsleter/ILA%202009/vol3no4.pdf.
The import of effective communication also extends to communicating with court staff and court security. Court staff and court security alike must be aware of any additional responsibilities they have and any additional considerations they must make when communicating with the respondent about his or her case and must further be aware of any potential security issues that may arise due to the mental health issues presented.
Second, Immigration Judges should exercise flexibility when dealing with respondents who may have mental health issues, taking any action consistent with their authorities under the Act and regulations that is appropriate and necessary for the disposition of such cases. See 8 C.F.R. § 1003.10(b). This may include (1) granting multiple continuances, even sua sponte, to afford respondents time to (a) secure representation in the form of counsel or a guardian ad litem, (b) resolve such mental health issues through treatment that is necessary and appropriate (an issue for DHS and perhaps the detention facility), or (c) contact the Legal Orientation and Pro Bono Program at the BIA to request that a contracting organization administer a Legal Orientation Program (LOP) to such a respondent; (2) considering administratively closing or terminating cases where respondents are unable to proceed in light of mental health issues and a corresponding inability to secure adequate safeguards, as required by section 240(b)(3) of the Act; (3) directing DHS to submit evidence relating to the respondent’s mental health, whether this requires conducting one or more mental health evaluation(s) or obtaining prior evaluations, to explore treatment options, and/or to find or obtain adequate representation for the respondent; (4) exercising discretion to close hearings pursuant to 8 C.F.R. § 1003.27; or (5) such other course of action that justice requires that is consistent with the Immigration Judge’s authority.
Third, Immigration Judges should build a very good record. As this area of the law develops, Immigration Judges may find that building a very complete record in which all relevant evidence is incorporated and all relevant factual findings and legal determinations are explicitly articulated will ensure a fair hearing. Furthermore, it will minimize the likelihood of remand upon administrative and judicial review, a tedious proposition given the special difficulties posed by hearings involving respondents who may have mental health issues.
2. Steps to guide proceedings
If sufficient doubt exists as to a respondent’s present mental health, then Immigration Judges should address a number of difficult questions. A preliminary question that may arise is whether DHS properly served the charging document on a respondent who has mental health issues. There may be a need for DHS to serve the charging document on an attorney, legal representative, legal guardian, near relative, or friend. If this had not been done then it might indicate a defect in the manner of service of the charging document which could lead to the conclusion that the present proceedings were not properly initiated. Similarly, Immigration Judges may not be comfortable accepting a respondent’s waiver of the issue of his or her competency; accepting a respondent’s waiver of his or her right to counsel (especially in light of the new standard set forth in Edwards, 128 S.Ct. 2379); accepting a respondent’s plea under 8 C.F.R. § 1240.10(c); or admitting a Record of Deportable/Inadmissible Alien (Form I-213) or other evidence (and accepting a waiver of any objections to its admission or any rights to cross-examine the declarants).
For these reasons, it is recommended at this stage that Immigration Judges focus on ensuring adequate safeguards are in place, such as finding counsel or a guardian ad litem, should a preliminary inquiry reveal that safeguards may be necessary and/or appropriate. As previously stated, it is recommended that Immigration Judges minimize substantive discussions during this period and focus on seeing that respondents with mental health issues be represented in proceedings. To this end, Immigration Judges should consider granting multiple continuances with the goal of securing representation, being mindful, however, of the importance of deciding detained cases expeditiously.
Immigration Judges should assist in securing counsel and/or a guardian ad litem to the extent permissible. The Immigration Judge may repeatedly provide the respondent with advisals about the import of obtaining representation and with information about pro bono legal services, or may inquire into the respondent’s mental health history. The respondent, DHS counsel, the Record of Proceeding, and any other evidence that may be available, including a facility intake report, documents from a bond proceeding or unrelated proceedings, or public records, may identify a family member, a friend, or a public guardian ad litem willing to represent the respondent’s interests in proceedings. Immigration Judges might request DHS counsel to contact such individuals or might request DHS counsel to contact those involved in prior criminal, civil, or administrative proceedings at which the respondent’s mental health was at issue. The Immigration Judge might also use other resources, such as contacting the Legal Orientation and Pro Bono Program at the BIA, to bring a respondent's identity to an LOP contractor's attention so that the respondent can receive services from the LOP, which may include finding or providing counsel or a guardian ad litem to assist the respondent. This may also be accomplished by contacting an American Immigration Lawyers Association attorney to recruit pro bono attorneys to handle such cases.
A related issue is whether a respondent is competent to waive counsel. See Michael L. Perlin, Pamela Champine, Henry A. Dlugacz, & Many Connell, Competence in the Law: From Legal Theory to Clinical Application 71 (2008); Thomas Grisso, Randy Borum, John F. Edens, Jennifer Moye, & Randy K. Otto, Evaluating Competencies: Forensic Assessments and Instruments 149 (2d ed. 2003). As noted above, an Immigration Judge must examine carefully a respondent’s statement that he or she may not want counsel if the respondent’s competency is at issue.
Should securing counsel or a guardian ad litem not be possible, Immigration Judges should take steps to ensure fundamental fairness inheres. Such steps may include but are not limited to administratively closing or terminating proceedings, or searching the record for any potentially available relief if removability is established. It may also include continuing hearings to allow the additional accrual of time to see if the respondent’s mental health status improves, assisting the respondent in presenting his or her direct testimony by asking questions, entering any judicially noticeable documents into the record sua sponte, and/or reserving appeal on behalf of a respondent if the respondent does not prevail. To date, the BIA has not upheld a case that terminated proceedings based on a theory that the respondent was so incompetent as to render the proceedings unfair. However, it remains an open question under the Fifth Amendment Due Process Clause whether proceedings could be terminated to assure fundamental fairness where an alien is severely or profoundly incompetent, and no person can be identified to protect his or her interests other than a DHS custodian.
3. Best Practices
This portion of the Benchbook is intended only as a guide for Immigration Judges when addressing a matter in which the Immigration Judge believes that the respondent may not be competent to proceed and in which the respondent does not have counsel, a legal representative, legal guardian, near relative, or friend to appear with him or her. It is merely a guide and is not intended to address all scenarios that might arise. It is not intended to replace the sound judgment of the Immigration Judge.
a. The Initial Master Calendar
1. The Circumstances
a. The Respondent is detained. The Immigration Judge may become aware of the issue even before going on the record. A concern might be evidenced by the respondent’s status as a detainee. The officers may have alerted court personnel in advance of the hearing. It may become apparent as the Immigration Judge addresses another matter. Lastly, it might not become an issue until the Immigration Judge goes on the record and addresses the respondent.
b. The Respondent is not detained. In this instance, the Immigration Judge might become aware based upon behavior prior to going on the record. More often, however, it is likely to arise after the Immigration Judge goes on the record.
2. Specific Pointers:
a. Remain on the record and make a record.
i. You may wish to allow the respondent to speak for a period without interruption so that the record will show the nature of your concern.
ii. State your observations and have Department of Homeland Security (DHS) Counsel state his or her observations.
b. Remain calm, patient, and in control. Once the Immigration Judge recognizes that there is an issue with the respondent’s competency, the Immigration Judge can employ specific techniques that may assist in communicating with the respondent. The Immigration Judge may wish to focus the language and demeanor to a range that the respondent best understands, if possible.
c. Find out whether the DHS is aware that there may be an issue with the respondent’s competency.
i. If the respondent is detained, he or she may have already undergone a mental health evaluation. Office of Detention and Removal Operations, National Detainee Handbook (Detention Management Division), page 4, paragraph 3.8. The Immigration Judge should request the results of any such evaluation.
ii. If the respondent is not detained, then the DHS counsel might not be aware of any issue. The DHS does have the authority over the individual’s custody status so an Immigration Judge may wish to inquire whether the DHS intends to take any action regarding the respondent’s custody status.
iii. In either case, the Immigration Judge might inquire as to whether the DHS is recommending a finding of incompetency for purposes of re-serving the NTA.
d. Specific Actions that an Immigration Judge might take.
i. Continue the case to another master calendar even though the respondent might be saying that the respondent wishes to represent himself or herself. In this way, the respondent’s rights may be safeguarded so that an attorney, legal representative, legal guardian, near relative, or friend might appear with the respondent at the next hearing.
ii. Request the DHS to conduct a mental health evaluation. If the respondent is detained, he or she may have already undergone a mental health evaluation. If not, request that DHS conduct the evaluation now. There is an Adjournment Code specifically titled, “DHS Request for Certification of Mental Competency.” If the Department refuses to give the Immigration Judge a copy of the report, you may consider taking those actions indicated in the sample orders.
iii. Use existing tools to permit and assist a respondent in obtaining counsel. You may wish to contact the Legal Orientation and Pro Bono Program at the BIA to see if counsel can be found to represent the respondent. You may also consider contacting the American Immigration Lawyers Association to assist with recruiting pro bono attorneys to handle such cases. If there is an attorney who is willing to assist an incompetent respondent, then the Immigration Judge may want to accept the help even if the respondent states that he or she does not want this person to help. See Edwards, 128 S.Ct. 2379 (where the Supreme Court concluded in a criminal case that the U.S. Constitution permits states to insist upon representation by counsel for a defendant who was competent enough to stand trial but not to represent himself). Specifically, while the attorney may not be able to represent the respondent, the attorney may serve to protect the respondent’s interests and assist the court.
iv. Have the respondent leave if the respondent becomes too disruptive, but remain on the record to handle the issues with the Department of Homeland Security.
v. If respondent refuses to appear for a scheduled hearing then the Immigration Judge should go on the record and place that information on the record and proceed accordingly.
vi. If the Immigration Judge determines that the respondent is not competent then the Immigration Judge may consider whether the respondent has been properly served with the Notice to Appear. In addition, the Immigration Judge may consider whether the custodian should appear with the respondent.
b. The Merits Hearing
i. If the Respondent is pro se without any help at the merits hearing then the Immigration Judge may wish to deny all the factual allegations and the charge on behalf of the respondent.
ii. If the DHS is relying on the respondent’s statements for removability, then that evidence must be scrutinized carefully. If the DHS asserts that it is a “paper case” (i.e., a case in which the Immigration Judge is not relying on an alien’s admissions, and therefore removability must be established by means of documentary evidence) then the Immigration Judge must consider carefully the admissibility and reliability of those documents.
iii. If the evidence establishes the respondent’s removability then the Immigration Judge must address the designation of the country of removal along with possible relief.
iv. At the conclusion of the Immigration Judge’s decision, the Immigration Judge may wish to reserve appeal on behalf of an alien whose competence remains in question, rather than try to ascertain whether an incompetent respondent wishes to reserve appeal.
Interim Order (directing that the respondent be evaluated by the U.S. Public Health Service or any contract agency or individual charged with mental health services for immigration detainees; that the agency prepare a study and report on the respondent’s mental condition and an evaluation of the respondent’s competency to represent himself in removal proceedings; and that the report shall be Confidential and made available only to the respondent, Executive Office for Immigration Review, Office of the Chief Counsel (DHS/ICE), and respondent’s appointed representative).
Interim Order (directing that the Department of Homeland Security produce report or provide a full explanation as to why there has been a delay in compliance with the Court’s prior Order).
Decision and Order (finding that the respondent is unable to effectively participate in a coherent manner, to comprehend the nature and consequences of the proceedings, to communicate with the Court in any meaningful dialog, to assert or waive any rights, and to seek various forms of relief, that to continue these removal proceedings, in light of the respondent’s current detention, is a violation of his civil rights, and exercising its discretion to terminate proceedings in light of the respondent’s apparent mental illness and the Department’s unwillingness to provide the respondent with a custodian or the Court with a copy of the Court-ordered mental evaluation).
Motion to Reopen (granting the Department of Homeland Security’s motion to reopen premised on material and relevant new facts, i.e., that the respondent had been released into a mental health treatment program, finding that the respondent’s civil and constitutional rights would be preserved, in that he was no longer the subject of prolonged detention, and that he could seek and receive adequate representation through the assistance of a mental health program).
Interim Order (requesting that the DHS provide the respondent with assistance in securing the appearance of an attorney, legal representative, legal guardian, near relative, friend, or treating physician at the next hearing in the case).
Interim Order (directing the respondent’s counsel to submit to the Court evidence of the respondent’s psychiatric condition, if any, and keep the Court informed of his condition at the time of the merits asylum hearing).
Interim Order (finding that the Court was not required to hold a competency hearing under 8 C.F.R. § 1240.4 for a respondent who was represented by counsel and that the presence of the respondent’s counsel was deemed sufficient to represent Respondent’s interests during his individual merits hearing)
Unpublished BIA Decisions (and Immigration Judge Decisions)
Matter of S-R-J- (BIA June 26, 2009) (finding that the respondent was afforded the procedural safeguards provided by 8 C.F.R. § 1240.4, and her statutory and constitutional rights were not violated).
Matter of F-M-F- (BIA June 25, 2008) (holding that Immigration Judge should not terminate proceedings based on concerns as to competency of respondent, where respondent is represented, and Immigration Judge should proceed with hearing and order removal if respondent cannot demonstrate eligibility for any relief).
Matter of S-Y- (BIA June 3, 2009) (reversing the Immigration Judge’s termination order).
Anne S. Kimbol, Competency Does Not Always Mean Competency, According to the Supreme Court, Health Law Perspectives (Aug. 2008) (available at http://www.law.uh.edu/healthlaw/perspectives/2008/%28AK%29%20Edwards.pdf).
Emily Ramshaw, Mentally Ill Immigrants Have Little Hope for Care When Detained, The Dallas Morning News, July 13, 2009.
Competency to Be Tried, Imprisoned, and Executed (Jane Campbell Moriarty ed., 2001).
Gary B. Melton, John Petrila, Norman G. Paythress, Christopher Slobogin, Phillip M. Lyons, Jr., & Randy K. Otto, Psychological Evaluations for the Courts: A Handbook for Mental Health Professionals and Lawyers (3d ed. 2007).
John W. Parry, Civil Mental Disability Law, Evidence and Testimony: A Comprehensive Reference Manual for Lawyers, Judges and Mental Disability Professionals (2010).
Michael L. Perlin, Pamela Champine, Henry A. Dlugacz, & Many Connell, Competence in the Law: From Legal Theory to Clinical Application (2008).
Thomas Grisso, Randy Borum, John F. Edens, Jennifer Moye, & Randy K. Otto, Evaluating Competencies: Forensic Assessments and Instruments (2d ed. 2003).
Dusky v. United States, 362 U.S. 402 (1960).
Indiana v. Edwards, 128 S.Ct. 2379 (2008).
Matter of M-A-M-, 25 I&N Dec. 474 (BIA 2011) (Where there are indicia of a respondent's incompetency, the Immigration Judge will make further inquiry and, if the respondent lacks sufficient competency for immigration proceedings, the Immigration Judge will evaluate appropriate safeguards).
American Academy of Psychiatry and the Law Guidelines on Evaluation of Competency to Stand Trial, http://www.jaapl.org/cgi/reprint/35/Supplement_4/S3.
Capitol Area Immigrants’ Rights Coalition, Practice Manual for Pro Bono Attorneys Representing Detained Clients with Mental Disabilities in Immigration Court (2009), http://www.caircoalition.org/pro-bono-resources/pro-bono-mental-health-manual/.
Competency Hearings for Aliens During Deportation Hearings, J. Am. Acad. Psych. Law 35(4) (2007).
Judicial Council of California, Administrative Office of the Court, Handling Cases Involving Self-Represented Litigants: A Benchguide for Judicial Officers (Jan. 2007), available at http://www.courtinfo.ca.gov/reference/documents/benchguide_self_rep_litigants.pdf.
Maria Baldini-Potermin, Past Persecution, Mental Illness and Humanitarian Asylum: Creating the Record to Win the Claim, 86 Inter. Rel. 261 (Jan. 26, 2009).
Melissa Piasecki, Competency in Immigration Proceedings (PowerPoint Presentation).
Mental Competence in the Context of Immigration Proceedings, J. Imm. Health 6(1) (2004).
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.
Ronald Roesch, Patricia A. Zapf, Stephen L. Golding, & Jennifer L. Skeem, Defining and Assessing Competency to Stand Trial, available at http://home.comcast.net/~slgolding/publications/new_ist.htm .
Sana Loue, Issues of Capacity in the Context of Immigration Law Part I: Evaluation and Ethics, Immigration Briefings (July 2009).
Sana Loue, Issues of Capacity in the Context of Immigration Law Part II: Developing a Strategy, Immigration Briefings (Aug. 2008).
The Arc, Partners in Justice, Information about People with Intellectual Disabilities in the Criminal Justice System For Judges and Attorneys, available at http://18.104.22.168/services/pij/Judges%20and%20Attorneys/Training%20for%20Judges%20&%20Attorneys%20withnotes.ppt.
Office of Disability Employment Policy, U.S. Dep’t of Labor, Communicating With and About People with Disabilities (Aug. 2002), http://www.dol.gov/odep/pubs/fact/comucate.htm.