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Hearing Difficult Voices : The Due‐Process Rights of Mentally Disabled Individuals in Removal Proceedings
ALICE CLAPMAN*
ABSTRACT
Every day, immigration judges face unrepresented respondents who present signs of severe mental impairment and possible incompetence. They are given no resources for, or guidance on, how to address the situation. Every day, noncitizens with mental impairments are ordered removed from the United States even though, if their stories were actually heard, they might be found eligible for relief. This Article provides both theoretical and practical guidance to the decisionmakers who must address the problem. The Article describes the current situation, in which various adjudicators respond to the problem in various ways, often by glossing over it. Next, the Article sets out a legal argument derived from different strands of due‐process jurisprudence (due process in removal proceedings, civil due process generally, and due process with respect to mentally impaired litigants) for why additional procedural protections are necessary. Finally, the Article identifies safeguards that would be feasible and adequate, such as setting a clear competency standard requiring both passive and active abilities; imposing disclosure duties on the Department of Homeland Security and investigative duties on the immigration judges; creating an expert panel within the Department of Justice to perform competency evaluations; revising procedural rules to require judges to focus on objective evidence where an applicant is incapable of satisfying the current standards for credible testimony; providing for skilled, court‐appointed representation where necessary (in some cases in a hybrid,
* Clinical Teaching Fellow, Center for Applied Legal Studies, Georgetown Law; incoming
Visiting Assistant Professor & Director, Immigrant Rights Clinic, University of Baltimore
School of Law; J.D. Yale Law School; B.A. Princeton University. I am grateful to Daniel
Hatcher, Geoffrey Heeren, David Luban, Andrew Schoenholtz, and Philip Schrag for valuable
comments and suggestions. This Article was supported in part by a research grant from the
University of Baltimore School of Law.
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guardian‐advocate role); and authorizing immigration judges to terminate proceedings in the rare case in which no other safeguard would be adequate.
INTRODUCTION
arlos,1 an immigrant from Latin America who had lived in the United States for 24 years, came to the attention of the immigration authorities when voices in his head told him to set himself on fire.2
This was not the first or last time he would obey these voices and attempt suicide,3 but it was a turning point in his life. This time, his actions resulted in a plea conviction of unlawfully causing a fire.4 Two years later, on the basis of this conviction, the Department of Homeland Security (“DHS”) took him into custody and began removal proceedings against him.5
Like most detained respondents (approximately eighty‐four percent),6 Carlos was unrepresented. He did not inform the Immigration Judge (“IJ”) that he suffered from chronic paranoid schizophrenia and frequently hallucinated.7 Nor did the DHS trial attorney inform the IJ—even though the DHS was holding him in detention, treating him with increasing dosages of psychotropic medications (which he sometimes refused), and receiving medical treatment reports that Carlos was suffering from acute
1 Name changed to preserve anonymity. 2 See CAPITAL AREA IMMIGRANT RIGHTS (“CAIR”) COAL. & COOLEY, GODWARD, KRONISH,
LLP, PRACTICE MANUAL FOR PRO BONO ATTORNEYS REPRESENTING DETAINED CLIENTS WITH
MENTAL DISABILITIES IN IMMIGRATION COURT app.23, at 3, 22 (2009) [hereinafter CAIR COAL. &
COOLEY, GODWARD, KRONISH, LLP], http://www.caircoalition.org/pro‐bono‐resources/pro‐
bono‐mental‐health‐manual/ (publishing a redacted copy of Carlos’s Motion to Reopen to the
Board of Immigration Appeals (“BIA”)). As explained below, many facts of this case are also
known to the author firsthand. 3 See id. at app.23, at 22. 4 Id. at app.23, at 2. 5 Id. Removal proceedings are held before an Immigration Judge (“IJ”), within the
Executive Office for Immigration Review (“EOIR”) of the Department of Justice (“DOJ”). See 8
U.S.C. § 1229a(a)(1) (2006). These proceedings are adversarial and relatively formal: An
attorney represents the Department of Homeland Security (“DHS”) in its efforts to remove the
respondent. See 8 C.F.R. § 1240.2(a) (2010). Respondents are entitled to retain counsel through
their own efforts, but if they cannot find counsel they must present their own case. 8 U.S.C. §
1229a(b)(4)(A) (stating that such counsel may be present “at no expense to the Government”). 6 See NINA SIULC ET AL., VERA INST. FOR JUSTICE, IMPROVING EFFICIENCY AND PROMOTING
JUSTICE IN THE IMMIGRATION SYSTEM: LESSONS FROM THE LEGAL ORIENTATION PROGRAM 1
(2008), available at http://www.vera.org/download?file=1780/LOPpercent2BEvaluation_May
2008_final.pdf. 7 CAIR COAL. & COOLEY, GODWARD, KRONISH, LLP, supra note 2, at app.23, at 3 (publishing
a redacted copy of Carlos’ Motion to Reopen to the BIA).
C
2011 Hearing Di f f i cu l t Voices 375
psychotic episodes, hearing screaming voices, and unable to eat or sleep.8 (Even more disturbing, knowing all this, the DHS still had Carlos sign a waiver of his right to seek certain benefits.)9 The IJ did not make her own inquiry, or attempt to obtain the state records that would have reflected recent observations about Carlos’s severe, uncontrolled mental illness.10
Although the regulations forbid accepting concessions of removability from incompetent respondents,11 and although the DHS’s allegations of removability were questionable,12 the IJ found Carlos removable based on his own admissions.13 Carlos applied for asylum and other fear‐based forms of relief from removal. He submitted a written statement that he feared persecution in his home country for having evaded conscription. The IJ called Carlos to the witness stand. During Carlos’s testimony, his head was pounding, he was hearing voices, and he did not understand what was happening. When asked whether he was afraid to return to his native country, he answered no. The IJ denied Carlos’s asylum application based in large part on the inconsistency between his written statement that he would be in danger and his apparent oral testimony to the contrary.14
Carlos remained in detention awaiting removal. His fellow detainees noticed his delusional, self‐destructive behavior and knew something was very wrong.15 I happened to be in regular contact with one of these detainees at the time, and he told me Carlos’s story. With help from fellow detainees and a changing coalition of advocates (of which I was one), Carlos appealed his removal order up to the court of appeals, narrowly avoided removal (the DHS had already set his physical transfer in motion when a judicial stay halted it), and was eventually released into his community after having suffered more than two years of immigration detention. Had a concerned fellow detainee not found outside help for Carlos, he would have disappeared into his native country, a country to which he feared returning and in which he may have been locked up in a mental institution under horrific conditions.16
Nadine,17 another mentally disabled citizen, had better luck with the removal system. She was not detained and was well enough to contact the
8 Id. at app.23, at 26‐28. 9 Id. at app.23, at 26. 10 Id. at app.23, at 3. 11 8 C.F.R. § 1240.10(c) (2010). 12 See CAIR COAL. & COOLEY, GODWARD, KRONISH, LLP, supra note 2, at app.23, at 42
(publishing a redacted copy of Carlos’ Motion to Reopen to the BIA). 13 Id. at app.23, at 3. 14 Id. 15 Id. at app.23, at 4. 16 See infra note 207 and accompanying text. 17 Name changed to preserve anonymity.
376 New England Law Review v. 45 | 373
Georgetown Law clinic (where I teach) before her immigration case had been decided. Nadine was a political refugee from a dictatorial regime, targeted because of her daughter’s political activities. The police had imprisoned and raped Nadine’s daughter. After Nadine had helped her daughter escape the country, the police had returned to Nadine’s home and beaten her unconscious.
Nadine had severe post‐traumatic stress disorder, as well as cognitive limitations that we suspected were manifestations of a traumatic brain injury from the beating. Although she seemed competent to make her own decisions in the case, Nadine was a challenging client for various reasons. Because of her own confusion and fear of recalling the past, she could not help her student representatives frame, polish, or corroborate her story of past and feared persecution. Vital details would emerge only after weeks of interviewing; contact information for witnesses would come out accidentally, almost too late to be useful. During interviews, she could only last for short periods of time before she felt a burning in her head and could no longer respond to questions. The students exhausted themselves trying to piece together a coherent narrative that would hold up at the hearing and to support that narrative with witness statements and physical and mental evaluations.
At the hearing, the government produced documents contradicting Nadine’s chronology of the case, and her answers on cross examination made little sense. The judge was troubled by her unreliability as a witness. Although IJs usually rule orally at the end of the hearing, he reserved judgment and asked for written closings. In their closing, the students made a strong factual and legal case for why the IJ should find Nadine credible despite the flaws in her testimony. Ultimately, the IJ did grant Nadine asylum. If all goes well, in a few years, she will be a citizen. I feel certain, though, that if she had appeared unrepresented, she would have lost her case and been ordered removed.
Together, Carlos’s and Nadine’s stories illustrate the plight of mentally disabled noncitizens in the removal system. Individuals vary greatly in the degree of their incapacitation, from Carlos, who was completely unable to look after his own interests, to Nadine, who simply needed extensive help telling her story. Many are in detention—in 2008 the DHS estimated that somewhere between 7571 and 18,929 immigration detainees suffered from “serious mental illness”18—and some are not. And some, like Nadine,
18 HUMAN RIGHTS WATCH & AM. CIVIL LIBERTIES UNION, DEPORTATION BY DEFAULT:
MENTAL DISABILITY, UNFAIR HEARINGS, AND INDEFINITE DETENTION IN THE US IMMIGRATION
SYSTEM 16‐17 (2010) [hereinafter DEPORTATION BY DEFAULT], available at http://www.hrw.org/
sites/default/files/reports/usdeportation0710webwcover_1_0.pdf. Internal numbers cite a
higher figure of 15% “of the detained immigrant population on any given day—
approximately 57,000 people in 2008. Id. (citing Dana Priest & Amy Goldstein, Suicides Point to
2011 Hearing Di f f i cu l t Voices 377
manage to find outside help in time, whereas others, like Carlos, either remain in detention and in legal limbo for years, or worse are removed without ever having had a meaningful opportunity to be heard.
Even under ordinary circumstances, immigration court proceedings are so rushed that one IJ described them as being “like holding death penalty cases in traffic court.”19 When mentally disabled individuals appear before IJs, often without representation, those IJs are wholly unable to afford them a meaningful hearing. Part of the problem is the lack of legal guidance. Thus far, all the relevant authorities—Congress, the Board of Immigration Appeals, the Attorney General, and the courts of appeals—have avoided setting any minimum standards of fairness in such circumstances. Another part of the problem is a lack of any practical guidance or resources that might enable judges to respond to signs of incompetency.
In this Article, I first set out the current situation in immigration courts with respect to mentally disabled respondents; then I address the legal question of whether additional safeguards are required; and finally I propose how, practically speaking, the courts could provide additional safeguards sufficient to ensure due process.
I. Current Situation
The Immigration and Nationality Act, in language dating from 1952, directs the Attorney General to “prescribe safeguards to protect the rights and privileges” of a noncitizen where “it is impracticable by reason of an alien’s mental incompetency for the alien to be present at the proceeding.”20 The Congress that enacted this provision did not specify what it meant for an individual to be “present,” and in particular whether physical presence was sufficient or whether, in addition, some actual capacity to participate was necessary. Nor have the other branches clarified this statutory issue. The Attorney General has, however, created some limited safeguards for incompetent respondents, including: regulations permitting other representatives to appear on the individual’s behalf;21 special service requirements;22 and a requirement that the immigration court hold a hearing on any issue of removability rather than accepting “an admission of removability from an unrepresented respondent who is incompetent . . . and is not accompanied by an attorney or legal
Gaps in Treatment, WASH. POST, May 13, 2008, at A1). 19 Julia Preston, Lawyers Back Creating New Immigration Courts, N. Y. TIMES, Feb. 9, 2010, at
A14 (quoting Dana L. Marks, Immigration Judge, President, National Association of
Immigration Judges) (referring to the nature of asylum cases). 20 8 U.S.C. § 1229a(b)(3) (2006). 21 8 C.F.R. § 1240.4 (2010). 22 Id. § 103.5a(c)(2).
378 New England Law Review v. 45 | 373
representative, a near relative, legal guardian, or friend.”23 The regulations do not establish any standard for competence or for doubt as to competency. Nor do they establish procedures for inquiring into competency or provide guidance for how to proceed where an individual, whether represented or unrepresented, is found incompetent or otherwise severely impaired. They do not specify, for example, whether the judge should attempt to secure counsel or other assistance for the individual, or how the judge should develop the record if she cannot rely primarily on the individual’s testimony as she usually does.
Legislators and policymakers, it seems, have long been aware that the existing regulations are insufficient. More than a decade ago, the Department of Justice (“DOJ”) solicited comments on whether to promulgate regulations for appointing guardians ad litem (“GALs”)24 in removal proceedings.25 Very few organizations responded on the subject of GALs for mentally disabled respondents, probably because advocates were far more concerned about other contemporaneous changes in the law such as the creation of a one‐year filing deadline for asylum applications.26 Several organizations expressed vague approval of the idea of a GAL program, while a few cautioned that such a program would not in and of itself solve the problem.27 The DOJ subsequently undertook—over thirteen years ago—to “further examine” the “complex and sensitive” issue.28
More recently, some members of Congress have expressed concern about the lack of progress on this issue. In February 2009, representatives introduced language into an appropriations bill encouraging the Executive
23 Id. § 1240.10(c).
24 A guardian ad litem is “[a] guardian, usu[ally] a lawyer, appointed by the court to appear
in a lawsuit on behalf of an incompetent or minor party.” BLACK’S LAW DICTIONARY 774 (9th
ed. 2009).
25 See Inspection and Expedited Removal of Aliens; Detention and Removal of Aliens;
Conduct of Removal Proceedings; Asylum Procedures, 62 Fed. Reg. 444, 448 (Jan. 3, 1997). 26 See id. at 463. 27 Several organizations filed comments in response to 62 Fed. Reg. 444 with the Director of
Policy Directives and Instructions Branch of the INS in 1997. For an example of comments, see
Letter from Florence Immigrant & Refugee Rights Project, Inc., to Dir. Policy Directives &
Instructions Branch, INS (Jan 31, 1997) (on file with author); Letter from Gay Men’s Health
Crisis, Inc., to Dir. Policy Directives & Instructions Branch, INS (Jan. 30, 1997) (on file with
author); Letter from Lutheran Immigration & Refugee Serv., to Dir. Policy Directives &
Instructions Branch, INS (Jan. 31, 1997) (on file with author); Letter from Mass. Law Reform
Inst., to Dir. Policy Directives & Instructions Branch, INS (Jan. 31, 1997) (on file with author);
Letter from U.S. Comm. For Refugees, to Dir. Policy Directives & Instructions Branch, INS
(Jan. 29, 1997) (on file with author). 28 See Inspection and Expedited Removal of Aliens; Detention and Removal of Aliens;
Conduct of Removal Proceedings; Asylum Procedures, 62 Fed. Reg. 10312, 10322 (Mar. 6,
1997).
2011 Hearing Di f f i cu l t Voices 379
Office for Immigration Review (“EOIR”) “to work with experts and interested parties in developing standards and materials for immigration judges to use in conducting competency evaluations of persons appearing before the courts.”29 This language, however, was not included in the final version of the legislation.30 Further, in December of 2009 representatives instructed EOIR to report on what “steps [the DOJ] has taken to provide safeguards for the rights of aliens judged to be mentally incompetent, as required by 8 U.S.C. 1229a(b)(3),”31 but even this hesitant language was left out of the final version of that appropriations bill.32 For its part, EOIR recently added a section on mental incompetence to its Immigration Judge Benchbook, suggesting, as “best practices,” that judges “us[e] direct, simple sentences,” “build a very good record,” and consider “appropriate and necessary” actions such as attempting to recruit representation or “grant[] multiple continuances with the goal of securing representation, being mindful, however, of the importance of deciding detained cases expeditiously.”33 The Benchbook also suggests that termination might be appropriate in some cases, while acknowledging that the Board of Immigration Appeals (“BIA” or “Board”), which itself is part of EOIR, “has not upheld a case that terminated proceedings based on a theory that the respondent was so incompetent as to render the proceedings unfair.”34 These tentative half‐measures suggest the political branches recognize the problem as significant but lack the consensus, political will, or both to address it.
Every day, meanwhile, individuals who manifestly lack the ability to defend their own rights appear in immigration court. Judges have responded inconsistently.35 Some have contacted nonprofit legal service
29 155 CONG. REC. H1762 (daily ed. Feb. 23, 2009). 30 Compare id., with Omnibus Appropriations Act of 2009, Pub. L. No. 111‐8, 123 Stat. 524,
570. 31 155 CONG. REC. H13884 (daily ed. Dec. 8, 2009). 32 Compare id., with Consolidated Appropriations Act, 2010, Pub. L. No. 111‐117, 123 Stat.
3034, 3123. 33 Exec. Office for Immigration Review, Dep’t of Justice, Mental Health Issues, IMMIGRATION
JUDGE BENCHBOOK, http://www.justice.gov/eoir/vll/benchbook/tools/MHI/index.html (last
visited Apr. 8, 2011). 34 Id. IJs can “terminate” proceedings at the request of either party—for example, because a
charging document is defective, DHS has not met its burden of establishing removability, or
for various other reasons. See Exec. Office for Immigration Review, Dep’t of Justice, Motions,
IMMIGRATION JUDGE BENCHBOOK, http://www.justice.gov/eoir/vll/benchbook/tools/Motions%
20to%20Reopen%20Guide.htm (last visited Apr. 8, 2011). Termination does not necessarily
prevent DHS from initiating new proceedings at any time, although at least one court has held
that the government cannot reopen proceedings based on evidence it could have discovered
prior to termination. Ramon‐Sepulveda v. INS, 743 F.2d 1307, 1309‐10 (9th Cir. 1984). 35 How IJs and DHS are treating respondents with mental impairments, and how they
should be treating them, are extremely sensitive issues at the moment, in part because the
380 New England Law Review v. 45 | 373
providers or individual private attorneys to obtain representation for a potentially incompetent respondent,36 administratively terminated or closed proceedings37 or ordered the DHS to conduct a competency evaluation and/or secure legal representation for the individual.38 Others have granted multiple continuances in the hopes that the respondent’s mental state will change or that he will miraculously find his own counsel.39 Too many have done nothing and simply treated the individual like any other respondent in proceedings—particularly when the individual’s disability is not noticeably disruptive.40 The DHS, for its part,
respondents are the subject of current and potential litigation and in part because their cases
raise thorny issues about how to allocate scarce resources. The author conducted a number of
interviews to gather information about the current situation and about the concerns of inside
actors, but these individuals were only willing to share their thoughts and information
anonymously. 36 Telephone Interview with anonymous government official (Oct. 15, 2010) (notes on file
with author); Telephone Interview with anonymous private immigration attorney (Aug. 24,
2010) (notes on file with author); see also TEX. APPLESEED, JUSTICE FOR IMMIGRATION’S HIDDEN
POPULATION 57 (2010), available at, http://www.texasappleseed.net/index.php?option=com
_docman&task=doc_download&gid=313&Itemid= (describing one case in which the court
held six hearings with no progress before locating pro bono counsel for the respondent (who
was detained all the while)). 37 See, e.g., First Amended Class‐Action Complaint for Declaratory and Injunctive Relief
and Petition for Writ of Habeas Corpus at 4, Franco‐Gonzales v. Holder, No. 10‐CV‐02211
(C.D. Cal. Nov. 2, 2010) [hereinafter Franco‐Gonzales Complaint] (on file with author)
(describing an administratively closed case in which, after closure, the plaintiff remained in
detention nearly five years until, shortly after filing a complaint in federal court, he was
released); CAIR COAL. & COOLEY, GODWARD, KRONISH, LLP, supra note 2, at app.16, at 2‐3
(publishing a redacted Decision of the Immigration Judge from New York, New York).
Administrative closure, in contrast with termination, does not resolve DHS’s charges against
the respondent but merely removes a case from the judge’s docket with the consent of both
parties. DEPORTATION BY DEFAULT, supra note 18, at 74. Either party can request that the
proceedings be recalendered at any time. If a respondent is in immigration detention when his
case is closed, he remains in detention unless he successfully applies for bond. 8 C.F.R. §
1003.19 (2010). In certain circumstances, however, the IJ would not have any authority to
order him released. See id. § 1003.19(h)(2)(i). Some mentally disabled individuals have
languished in detention for years because their cases were closed. DEPORTATION BY DEFAULT,
supra note 18, at 74. Although this issue is beyond the scope of the Article, an important
regulatory reform would be to give IJs greater authority to order respondents released. 38 See, e.g., CAIR COAL. & COOLEY, GODWARD, KRONISH, LLP, supra note 2, at app.17, at 3
(publishing a redacted Interim Order of the Immigration Judge, Arlington, VA). 39 One judge, facing a respondent who was previously declared incompetent to stand trial
on criminal charges and was appearing by videoconference from a psychiatric hospital,
granted the respondent three continuances to find an attorney, and when that failed the IJ
proceeded to hold a hearing anyway and order the respondent removed. See Mohamed v.
TeBrake, 371 F. Supp. 2d 1043, 1047 (D. Minn. 2005), vacated, Mohamed v. Gonzales, 477 F.3d
522, 525 (8th Cir. 2007). 40 See, e.g., Amended Order Re Plaintiffs’ Motion for a Preliminary Injunction, at 6‐8,
2011 Hearing Di f f i cu l t Voices 381
has disavowed any obligation to raise mental competency issues with the court.41 And in some cases, IJs have even allowed detention and removal officers from the DHS to appear on behalf of disabled individuals (as their custodians) at hearings in which a DHS attorney is arguing for removal42—as clear a conflict of interest as can be imagined but one expressly authorized by the current regulations.43
Similarly, the BIA has taken various positions on the issue of incompetency, always in unpublished, non‐ precedential decisions. The Board has: remanded cases where a judge failed to determine competency;44 instructed judges to “take reasonable measures to obtain an attorney or other representative to assist” a respondent;45 ordered the DHS to appoint an attorney;46 instructed judges to proceed with the sole
Franco‐Gonzales v. Holder, No. CV 10‐02211 DMG (DTB) (C.D. Cal. 2010); CAIR COAL. &
COOLEY, GODWARD, KRONISH, LLP, supra note 2, at app.22, at 4‐10 (publishing a redacted
Appeal Brief of Respondent to the BIA, In re R‐H‐ (seeking appeal based on IJs failure to
inquire as to respondent’s mental capacity)); see also DEPORTATION BY DEFAULT, supra note 18,
at 32 (quoting a private attorney’s observation that “[u]nless they are actually yelling at you or
not participating, a person with mental illness won’t be recognized”). IJs may feel constrained
in their response by BIA caselaw holding that they lack any jurisdiction to decide
constitutional issues such as whether the current regulations fail to provide adequate
safeguards. See In re Fuentes‐Campos, 21 I. & N. Dec. 905, 912 (B.I.A. 1997). And although
there is no reason EOIR could not apply the “avoidance of constitutional doubt” canon when
interpreting statutes and regulations, the BIA has never done so in a published opinion.
Several BIA Members have, however, joined in dissents citing this canon. See, e.g., In re Rojas,
23 I. & N. Dec. 117, 138‐39 (B.I.A. 2001) (Rosenberg, Board Member, dissenting); In re Garvin‐
Noble, 21 I. & N. Dec. 672, 699‐702 (B.I.A. 1997) (Rosenberg, Board Member, dissenting); In re
Valdez‐Valdez, 21 I. & N. Dec. 703, 718 (B.I.A. 1997) (Rosenberg, Board Member, dissenting). 41 See Brief for Am. Immigration Council et al., as Amici Curiae Supporting Respondent at
7, In re L‐T‐ (Sept. 14, 2010) [hereinafter Brief for AIC], available at http://www.legalaction
center.org/sites/default/files/docs/lac/Matter‐of‐L‐T‐9‐14‐10.pdf; DEPORTATION BY DEFAULT,
supra note 18, at 34; Emily Ramshaw, Mentally Ill Immigrants Have Little Hope for Care When
Detained, DALL. MORNING NEWS, July 13, 2009, available at 2009 WLNR 13763431 (noting that,
where a detainee is diagnosed with mental illness, “it’s rare” for DHS to disclose this
diagnosis to the court). 42 Brief for AIC, supra note 41, at 22‐24; Franco‐Gonzales Complaint, supra note 37, at 5;
Telephone Interview with anonymous government lawyer (Oct. 15, 2010) (notes on file with
author). 43 See 8 C.F.R. § 1240.4 (2010) (stating that where all other representatives may be
unavailable “the custodian of the respondent shall be requested to appear on behalf of
respondent”). As many immigrants in removal proceedings are detained, their custodian is a
DHS officer. Brief for AIC, supra note 41, at 22. 44 See, e.g., In re Green‐Tatum, 2010 WL 3536700, at *1 (B.I.A. Aug. 13, 2010). 45 See, e.g., CAIR COAL. & COOLEY, GODWARD, KRONISH, LLP, supra note 2, at app.18, at 2
(publishing a redacted Decision of the Board of Immigration Appeals). 46 See, e.g., id., at app.21, at 3 (publishing a redacted Decision of the Board of Immigration
Appeals from Dec. 8, 2003).
382 New England Law Review v. 45 | 373
safeguard of not accepting admissions from an incompetent respondent;47 reversed decisions terminating proceedings (in other words, considered and rejected the position that removal ought to be halted because of competency issues);48 and affirmed removal orders where the judge failed to adapt the hearing in any way.49 Courts of appeals, for their part, have acknowledged in passing that mentally incompetent noncitizens might be entitled to some additional protections, while skirting the issue in various ways—for example, by finding that counsel had effectively presented the petitioner’s best case in immigration court,50 that a petitioner failed to present sufficient evidence of mental incompetency or of prejudice,51 or
47 See, e.g., id., at app.19, at 3 (publishing a redacted Decision of the Board of Immigration
Appeals from Feb. 3, 2006 (remanding the case to an IJ for new proceedings and ordering that
such proceedings should comply with 8 C.F.R. § 1240.10(c))). 8 C.F.R. § 1240.10(c) requires that
“[t]he immigration judge . . . not accept an admission of removability from an unrepresented
respondent who is incompetent.” 8 C.F.R. § 1240.10(c). 48 See In re J‐F‐F‐, 23 I. & N. Dec. 912, 914‐15 (A.G. 2006) (recounting procedural history of
case, in which IJ had terminated proceedings based on the respondent’s mental incompetence
and the BIA had reversed); DEPORTATION BY DEFAULT, supra note 18, at 49 (“[T]he DHS and
Board of Immigration Appeals have both rebuked IJs for actively engaging in fact‐finding and
adding to the record in appellate decisions, resulting in the assumption that judges who assist
an unrepresented person with diminished capacity will have their decisions overturned.”);
Exec. Office for Immigration Review, Dep’t of Justice, In re S‐Y‐, IMMIGRATION JUDGE
BENCHBOOK 4‐5 (June 3, 2009), http://www.justice.gov/eoir/vll/benchbook/tools/MHI/
templates/S‐Y‐%20%28BIA%20June%203,%202009%29.pdf (publishing a redacted decision of
the Board of Immigration Appeals reversing a termination order where incompetent
respondent was represented and had family members present). 49 See Mohamed v. TeBrake, 371 F. Supp. 2d 1043, 1045 (D. Minn. 2005) (noting BIA
affirmance of removal order issued against unrepresented, disabled individual with no
competency assessment) vacated, Mohamed, 477 F.3d 522, 525 (8th Cir. 2007); CAIR COAL. &
COOLEY, GODWARD, KRONISH, LLP, supra note 2, at app.23, at 4‐5 (publishing a redacted
Respondent’s Motion to Reopen to the Board of Immigration Appeals, Mar. 2008 (appealing
BIA summary affirmance of IJ’s decision despite IJ’s failure to make a competency
determination)). 50 See Nee Hao Wong v. INS, 550 F.2d 521, 523 (9th Cir. 1977). 51 See Muñoz‐Monsalve v. Mukasey, 551 F.3d 1, 6 (1st Cir. 2008); Mohamed, 477 F.3d at 527;
Nelson v. INS, 232 F.3d 258, 261‐62 (1st Cir. 2000). In an unpublished decision, Margaryan v.
Mukasey, a Ninth Circuit panel remanded an adverse credibility determination, reasoning that
the petitioner’s inconsistencies might have been a result of mental impairment or
incompetence. 261 F. App’x 44 (9th Cir. 2007). The court also found that “[a]sylum regulations
recognize that the interests of an incompetent person involved in adversary proceedings
should be represented by a party who possesses adequate discretion and mental capacity,”
citing to 8 C.F.R. § 1240.4, which permits representatives to appear on behalf of a mentally
incompetent individual or, in the alternative, provides that the court should request that a
custodian appear on his behalf. Id. at 46. The fact that the court reached this result in an
unpublished decision and declined to base its remand on any due process or statutory
ground, or decide whether, when, and how IJs must hold competency hearings, suggests a
reluctance (for whatever reason) to set a precedent that would require massive systemic
2011 Hearing Di f f i cu l t Voices 383
that a petitioner was entitled to remand on other grounds.52
In other words, there is no agency or judicial consensus as to what evidence casts doubt on competency or how IJs should respond to such evidence. Given the complexity of the problem and the variety of circumstances that may affect the fairness of any particular hearing, a legislative or regulatory response is necessary. On the assumption that such a response will only come with judicial prompting, I now turn to the legal argument for reform.
II. Legal Analysis
Although the particular legal issue of what safeguards are due to incompetent or otherwise disabled individuals in removal proceedings is unresolved, three interrelated strands of law provide guidance: first, the rights of noncitizens in removal proceedings generally; second, the rights of individuals involved in civil matters where fundamental interests are at stake; and third, the rights of individuals in both civil and criminal proceedings who suffer from mental disabilities such that they cannot protect their own interests.53 I will discuss these in turn.
change. Two district courts have found that mental incompetence, or signs of possible
incompetence, does trigger additional requirements, although one of these cases has been
vacated and the other has yet to be reviewed by the Court of Appeals. See Mohamed, 371 F.
Supp. 2d at 1047 (holding, based on the regulations, that “it is an abuse of discretion when an
immigration judge, faced with evidence of a formal adjudication of incompetence or medical
evidence that an alien has been or is being treated for the sort of mental illness that would
render him incompetent, fails to make at least some inquiry”), vacated, Mohamed, 477 F.3d at
525 (explaining that the district court transferred the case to circuit court based on § 106 of the
Real ID Act of 2005, which stripped the district courts of jurisdiction over the matter);
Amended Order Re Plaintiffs’ Motion for a Preliminary Injunction at 38, Franco‐Gonzales v.
Holder, No. CV 10‐02211 DMG (DTB) (C.D. Cal. 2010) (holding, based on the Rehabilitation
Act, that EOIR was required to provide “Qualified Representatives” for mentally incompetent
respondents in their removal proceedings). 52 Ruiz v. Mukasey, 269 F. App’x 616, 619 (9th Cir. 2007) (declining to reach due process
argument because remand was appropriate based on IJ error as to the nature of petitioner’s
conviction). One district court denied a habeas petition by a mentally ill immigration detainee,
finding that the petitioner was not entitled to any additional safeguards because, although
plainly delusional at his immigration hearing, he had been competent enough to “articulate
his belief” that he would be persecuted in Turkey. See Order on Report and Recommendation,
at 8, Gokce v. Ashcroft, No. 02‐CV‐02568‐ORD (W.D. Wash. 2003). The court’s opinion, which
is somewhat shocking for its minimalist reading of the due process clause, can be read either
as establishing a hollow standard of “competency” or as holding, more broadly, that whatever
the capacity of an individual respondent, the system complies with due process simply by
providing him with various (useless) procedural protections such as the right to “present
evidence.” Id. at 8‐9 (rejecting report and recommendation by magistrate judge that the court
appoint counsel under the Criminal Justice Act). Either interpretation is inconsistent with the
due process caselaw set forth in infra section II. 53 There are statutory arguments available as well. One would be based on 8 U.S.C. §
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A. Due Process in Immigration Proceedings
The principle that removal cases are civil in nature and therefore subject only to limited due‐process requirements has survived for over a hundred years even though it was first articulated in a decision that is now infamous (at least among academics) for its open xenophobia: the so‐called Chinese Exclusion case.54 The author of that oft‐quoted opinion, Justice Field, reasoned that the congressional power to exclude noncitizens was inherent in national sovereignty, to protect against “aggression and encroachment . . . from vast hordes” of “foreigners of a different race” “crowding in upon us.”55 Subsequent decisions such as Nishimura Ekiu v. United States reinforced this principle of national sovereignty, without the inflammatory rhetoric, by tying the executive and congressional powers over immigration to their foreign‐relations powers.56 These decisions all assumed without explanation that, for the government’s powers to be effective, removal proceedings had to be civil rather than criminal in nature (and therefore subject to minimal standards and minimal judicial oversight).
The Court began to moderate its position toward the middle of the twentieth century. Without casting aside the civil‐criminal distinction, it nonetheless began scrutinizing executive actions more closely and reading statutory protections more expansively in recognition of the “drastic”57 and “grave”58 nature of removal, and of the “high and momentous” stakes in removal proceedings.59 In Bridges v. Wixon, the Court sounded poised to override the criminal‐civil distinction when it reversed a deportation order
1229a(b)(4)(B) (2006), which guarantees that respondents have a “reasonable opportunity” to
present their case, and another is based on § 1229a(b)(3), which directs the Attorney General
to “prescribe safeguards” to protect mentally incompetent respondents. See 8 U.S.C. §
1229a(b)(4)(B), (b)(3) (2006). These provisions, in their vagueness, merely restate the Due
Process Clause. See U.S. CONST. amend. XIV § 1. Another statutory protection is based on
section 504 of the Rehabilitation Act of 1973 and its implementing regulations, which require
federal agencies in the course of operating systems such as immigration courts to provide
reasonable accommodations to individuals with disabilities. 29 U.S.C. § 794(a); see also
Amended Order Re Plaintiffs’ Motion for a Preliminary Injunction, at 26‐38, Franco‐Gonzales
v. Holder, No. CV 10‐02211 DMG (DTB) (C.D. Cal. 2010) (finding that the respondents
qualified for reasonable accommodations under the Rehabilitation Act). The intricacies of
these legal arguments are beyond the scope of this Article. 54 See Chae Chan Ping v. United States (Chinese Exclusion Case), 130 U.S. 581 (1889). 55 Id. at 606. 56 142 U.S. 651, 659 (1892). 57 Fong Haw Tan v. Phelan, 333 U.S. 6, 10 (1948). 58 Jordan v. De George, 341 U.S. 223, 231 (1951). 59 Delgadillo v. Carmichael, 332 U.S. 388, 391 (1947). See also Ng Fung Ho v. White, 259 U.S.
276, 284 (1922) (recognizing that deportation “may result also in loss of both property and life;
or of all that makes life worth living”).
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based on unsworn statements about the petitioner’s alleged communist affiliation,60 reasoning:
Here the liberty of an individual is at stake. . . . Though deportation is not technically a criminal proceeding, it visits a great hardship on the individual and deprives him of the right to stay and live and work in this land of freedom. That deportation is a penalty—at times a most serious one—cannot be doubted.61
In view of the stakes, the Court warned, “[m]eticulous care must be exercised lest the procedure by which [an individual is removed] . . . not meet the essential standards of fairness.”62
Although the civil‐criminal distinction survived Bridges v. Wixon (and is in perfect health), the Court has continued to respond to the fundamental interests at stake in removal proceedings. Given that “deportation is a drastic measure and at times the equivalent of banishment or exile,” the Court has applied a rule of lenity in interpreting removal provisions similar to that in criminal proceedings, construing statutory ambiguities in the noncitizen’s favor.63 “[I]n view of the grave nature of deportation,” the Court has also applied the “void for vagueness doctrine.”64 The Court has adopted a presumption against retroactivity somewhat akin to the ex post facto prohibition in criminal law, to narrowly construe the temporal scope of various criminal bars to discretionary relief from removal.65 And most recently, in Padilla v. Kentucky, the Court acknowledged that “deportation is . . . intimately related to the criminal process” and, as a consequence, held that noncitizen criminal defendants have a constitutional right to effective counseling on the immigration consequences of a conviction.66
Individual lower courts and appellate judges at times (though not recently) have shown even more willingness to question the categorization of immigration law as an ordinary civil proceeding, at least with respect to legal residents facing removal as a consequence of a criminal conviction. In Aguilera‐Enriquez v. INS, for example, the Sixth Circuit recognized that due process would require appointment of counsel for a noncitizen in removal proceedings if that noncitizen “would require counsel to present his position adequately to an immigration judge.”67 The court noted prior dicta to the contrary, but dismissed this dicta as “rest[ing] largely on the outmoded distinction between criminal cases (where the Sixth Amendment
60 326 U.S. 135, 156‐57 (1945). 61 Id. at 154; see also Ng Fung Ho, 259 U.S. at 284. 62 Bridges, 326 U.S. at 154. 63 Fong Haw Tan v. Phelan, 333 U.S. 6, 10 (1948) (citing Delgadillo, 332 U.S. at 391). 64 Jordan v. De George, 341 U.S. 223, 231 (1951). 65 INS v. St. Cyr, 533 U.S. 289, 315‐26 (2001). 66 130 S. Ct. 1473, 1481‐82 (2010). 67 516 F.2d 565, 568 n.3 (6th Cir. 1975).
386 New England Law Review v. 45 | 373
guarantees indigents appointed counsel) and civil proceedings (where the Fifth Amendment applies).”68 (The court denied the petition for review, however, because it found that under the law, there was no relief for which counsel could have helped Aguilera‐Enriquez apply.)69 The dissent in Aguilera‐Enriquez went even further, rejecting the majority’s case‐by‐case approach and reasoning that “[a] deportation proceeding so jeopardizes a resident alien’s basic and fundamental right to personal liberty”70 that “only a per se rule requiring appointment of counsel will assure a resident alien due‐process of law.”71 And in United States v. Campos‐Asencio, another court remanded a case to district court after holding that, depending on how the facts of the case developed, the government’s refusal to provide counsel for a noncitizen in removal proceedings might have amounted to a due‐process violation.72 These cases, now decades old, offer a glimpse of what the law might look like if courts actually measured the process due in removal proceedings by the gravity of the interests at stake.
Thus far, however, the special status of immigration proceedings has translated into very few procedural protections. Principally, individuals can reopen proceedings if the representation they received was ineffective;73 the immigration judge has an affirmative duty to develop the record;74 and non‐English‐speaking respondents have a right to accurate and complete translation during proceedings.75 Whether these protections could be expanded to include counsel under certain circumstances
68 Id. 69 Id. at 569. 70 Id. at 571 (DeMascio, J., dissenting). 71 Id. at 573. 72 822 F.2d 506, 509 (5th Cir. 1987). 73 Courts have limited this right with various qualifications. See Jezierski v. Mukasey, 543
F.3d 886, 890 (7th Cir. 2008) (denying a general right to effective assistance, but recognizing
that “[t]he complexity of the issues, or perhaps other conditions, in a particular removal
proceeding might be so great that forcing the alien to proceed without the assistance of a
competent lawyer would deny him due process of law by preventing him from ‘reasonably
presenting his case’”); Khan v. Attʹy Gen., 448 F.3d 226, 236 (3d Cir. 2006) (holding that to
make out an ineffective assistance claim a petitioner must show (1) “that he was prevented
from reasonably presenting his case” (quoting Uspango v. Ashcroft, 289 F.3d 226, 231 (3d Cir.
2002)) and (2) that “substantial prejudice” resulted (quoting Anwar v. INS, 116 F.3d 140, 144
(5th Cir. 1997))); Hernandez v. Reno, 238 F.3d 50, 55 (1st Cir. 2001) (“[W]here counsel does
appear for the [alien], incompetence in some situations may make the proceeding
fundamentally unfair and give rise to a Fifth Amendment due process objection.”); In re Lozada,
19 I. & N. Dec. 637, 639 (B.I.A. 1988) (setting forth strict procedural requirements). 74 The IJ’s duty to develop the record derives partly from 8 U.S.C. § 1229a(b)(1), which
authorizes and instructs IJs to “receive evidence, and interrogate, examine, and cross‐examine
the alien and any witnesses,” but also from the Due Process Clause. See, e.g., Jacinto v. INS,
208 F.3d 725, 727‐28, 732 (9th Cir. 2000) (quoting 8 U.S.C. § 1229a(b)(1) (2006)). 75 Perez‐Lastor v. INS, 208 F.3d 773, 778 (9th Cir. 2000).
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depends on a second line of case law to which I now turn: civil due process where important individual interests are at stake.
B. Civil Due Process
The Supreme Court has required appointment of counsel in certain high‐stakes civil proceedings: for example, in involuntary‐commitment proceedings76 and in juvenile‐delinquency proceedings.77 In Lassiter v. Department of Social Services, a divided Court drew a line around these precedents, based on the fact that they all concerned a threatened deprivation of physical liberty.78 The Court held that, unlike individuals at risk of losing their physical liberty, indigent parents facing a state‐initiated proceeding for termination of parental rights were not categorically entitled to counsel.79 Instead, such cases would be evaluated individually under the general Mathews v. Eldridge factors governing what protections are constitutionally required for any particular civil procedure: (1) the private interests at stake; (2) the government’s interests; and (3) the risk of an erroneous decision in the absence of the safeguard at issue.80 In a twist on Mathews, however, these factors would be considered against a presumption that counsel is not required if physical liberty is not at stake.81 Interestingly, state high courts have proved far more willing than the Lassiter Court to require appointment of counsel in civil proceedings involving parental rights or other fundamental interests, but this is limited consolation for unsuccessful federal litigants.82
Lassiter might not apply to removal proceedings because, in contrast to the termination of parental rights, removal arguably implicates physical liberty.83 In Bridges v. Wixon, for example, the Court characterized the
76 See Vitek v. Jones, 445 U.S. 480, 496‐97 (1980). 77 See In re Gault, 387 U.S. 1, 41 (1967). 78 452 U.S. 18, 26 (1981). 79 Id. at 31. 80 Id. (citing Mathews v. Eldridge, 424 U.S. 319, 335 (1976)). 81 Id. 82 See, e.g., In re K.L.J., 813 P.2d 276, 279 (Alaska 1991); State ex rel. Johnson, 465 So.2d 134,
138 (La. Ct. App. 1985); cf. Lavertue v. Niman, 493 A.2d 213, 218 (Conn. 1985) (providing an
indigent defendant the right to counsel in paternity proceedings); Corra v. Coll, 451 A.2d 480,
487 (Pa. Super. Ct. 1982) (granting a blanket right to counsel for putative fathers in paternity
actions). 83 Lassiter comes up only twice in the numerous discussions of due process in removal
proceedings: one Supreme Court case and one court of appeals case, both citing Lassiter in
passing for the principle that “[t]he constitutional sufficiency of procedures provided in any
situation . . . varies with the circumstances.” Landon v. Plasencia, 459 U.S. 21, 34 (1982); accord
United States v. Benitez‐Villafuerte, 186 F.3d 651, 656 (5th Cir. 1999). The holding in Lassiter
also might not apply to an incompetent individual’s removal proceeding because Lassiter
involved a petitioner who was competent to present her own case.
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noncitizen’s interest in remaining here as a “liberty” interest.84 Of course, “liberty” could mean either physical liberty as the absence of physical coercion or a broader concept of liberty as self‐determination; Lassiter recognized only the former as giving rise to a blanket right to counsel, and the Court did not specify in Bridges which sort of liberty was at stake in removal proceedings. Regardless, physical coercion has become a routine aspect of the removal process. Over the past twenty or so years, Congress has prescribed detention for an increasing number of noncitizens in removal proceedings, often for long periods of time.85 (the DHS is even authorized to continue detaining individuals who win at the trial level while it appeals these decisions to the BIA.)86 In 2009, for example, the DHS detained approximately 383,000 noncitizens in prison‐like conditions.87 Some immigration detainees spend years in detention.88 Moreover, noncitizens are often physically restricted with shackles or other restraints during the removal process.89
Thus, now more than ever, removal proceedings entail a deprivation of physical liberty in some sense. Of course, the DHS would no doubt respond that this argument proves too much: If removal proceedings implicate “physical liberty” as the Court understands that term, then all noncitizens facing removal, and not just the most vulnerable among them, are entitled to representation. (Though unlikely to attract any court majority anytime soon, this was the dissent’s view in Aguilera‐Enriquez v. INS.)90 Even if courts rejected the conception of removal as a deprivation of physical liberty akin to involuntary commitment, they could still take the middle ground presented by Gagnon v. Scarpelli, a probation‐revocation case.91 In that case, the Court characterized the interest at stake as “conditional liberty” and applied a case‐by‐case analysis. Contrary to
84 326 U.S. 135, 154 (1945). 85 See Geoffrey Heeren, Pulling Teeth: The State of Mandatory Immigration Detention, 45 HARV.
C.R.‐C.L. L. REV. 601, 610‐11 (2010) (describing enactment of mandatory detention in 1988 and
gradual expansion since then of the class of noncitizens subject to detention). 86 See 8 U.S.C. § 1003.6(c) (Supp. 2010). 87 OFFICE OF IMMIGRATION STATISTICS, IMMIGRATION ENFORCEMENT ACTIONS 1 (2009),
available at http://www.dhs.gov/xlibrary/assets/statistics/publications/enforcement_ar_2009
.pdf; DORA SCHRIRO, DEP’T OF HOMELAND SECURITY, IMMIGRATION DETENTION OVERVIEW AND
RECOMMENDATIONS 2, 6 (2009) [hereinafter SCHRIRO REPORT], available at http://www.ice.gov/
doclib/about/offices/odpp/pdf/ice‐detention‐rpt.pdf. 88 SCHRIRO REPORT, supra note 87, at 6. 89 See, e.g., Nina Bernstein, A Mother Deported, and a Child Left Behind, N.Y. TIMES, Nov. 24,
2010, at A1; Meribah Knight, Deportationʹs Brief Adios and Prolonged Anguish, CHI. NEWS
COOPERATIVE (May 9, 2010), http://www.chicagonewscoop.org/deportation%E2%80%99s‐
brief‐adios‐and‐prolonged‐anguish/. 90 Aguilera‐Enriquez v. INS, 516 F.2d 565, 573‐74 (6th Cir. 1975) (DeMascio, J., dissenting). 91 441 U.S. 778, 779 (1973).
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Lassiter, however, the Court presumed a right to representation for anyone with a colorable claim.92 Lassiter acknowledged this middle‐ground proposal in passing before focusing its analysis on what due process requires in the absence of any physical liberty interest.93
Even assuming that removal cases fall under Lassiter, that case merely creates a presumption that could well be overcome by the Mathews factors in cases involving mental incompetence.94 As for the first Mathews factor, the interests in having a meaningful hearing and in avoiding removal are significant. For many noncitizens, removal can mean separation from family, friends, and community; loss of a home, employment and a business; or other significant hardships. Individuals often face deportation to a country that they left at a very young age, where they might not even speak the language. These individuals are relatively lucky compared to the refugees who face persecution, torture, or even death if they are wrongfully removed to the countries from which they fled. As noted in Part II.A, the Court has acknowledged the gravity of all of these interests.95
Applying the second Mathews factor, the government has a clear interest in efficiency and economy, but this interest may not militate strongly against providing protections for a highly limited class of noncitizens, particularly because cases involving this class already require extra resources in the form of repeated continuances, prolonged hearings, administrative closures and reopenings, administrative and judicial appeals, remands, prolonged detention, and treatment. Appointed representation, although costly, would allow for more efficient legal resolutions, which would offset some of the cost.96 Moreover, the
92 Id. at 790‐91. 93 Lassiter v. Dep’t of Soc. Servs., 452 U.S. 18, 28, 31 (1981). 94 See id. at 27. 95 Admittedly, the interest at stake in Lassiter—parental rights—is extremely important as
well, as the Lassiter opinion itself acknowledged. Id. at 27. The most significant differences
between that case and the situation of mentally impaired individuals in removal proceedings
are: (1) mentally impaired individuals are uniquely at risk of losing meritorious claims, and
(2) in custody‐termination proceedings the main issue generally is the parent‐child
relationship, a subject on which most parents are uniquely qualified to make their case,
whereas immigration law raises all kinds of technical questions about how various
convictions should be classified, what bars apply to what forms of relief, and whether the
precise criteria for each form of relief are met. In other words, the main differences lie in the
third Mathews factor (risk of an erroneous decision). 96 See AM. BAR ASS’N, REFORMING THE IMMIGRATION SYSTEM: PROPOSALS TO PROMOTE
INDEPENDENCE, FAIRNESS, EFFICIENCY, AND PROFESSIONALISM IN THE ADJUDICATION OF
REMOVAL CASES 5‐10 (2010), available at http://www.americanbar.org/content/dam/aba
/migrated/Immigration/PublicDocuments/aba_complete_full_report.authcheckdam.pdf. In the
context of Legal Orientation Program (by which EOIR funds legal service providers to visit
detention facilities and educate detainees about the law), EOIR has recognized that such
services more than pay for themselves because they make proceedings more efficient and help
390 New England Law Review v. 45 | 373
government also has an interest in a fair adjudicative system, an interest that would be furthered by blanket representation.97
As for the third Mathews factor, the risk of an erroneous decision is exceptionally high in light of: the traffic‐court‐like haste with which many immigration proceedings are heard; the complexity of immigration law; the adversarial nature of the proceedings; and the high evidentiary burden on noncitizens seeking any relief from removal.98 To begin with, unrepresented individuals with severe mental impairments are vulnerable to erroneous decisions in any adjudicatory system because they often cannot “understand, formulate, and verbally express ideas in a way that most other people can.”99 As the American Psychiatric Association (“APA”) has explained, “[d]isorganized thinking, deficits in sustaining attention and concentration, impaired expressive abilities, anxiety, and other common symptoms of severe mental illnesses can impair the defendant’s ability to play the significantly expanded role required for self‐representation even if he can play the lesser role of represented defendant.”100 Cognitive limitations pose similar problems. As the Court recognized when it held that “the Constitution places a substantive restriction on the State’s power to take the life of a mentally retarded offender,” individuals with cognitive limitations are especially at risk for erroneous factfinding because—even with counsel—they are less able to present favorable facts and less persuasive as witnesses.101
Individuals with mental impairments are particularly vulnerable in the immigration system. Because of the volume of cases they confront, IJs must
detainees see the strengths—and weaknesses—of their case. See SIULC ET AL., supra note 6, at
iv‐v. This analogy is limited, however, because Legal Orientation Programs are less resource‐
intensive (providing group trainings and only limited individual consultations) and because,
in the case of individuals with significant mental disabilities, an appointed representative
would need to extensively investigate how that individual might be treated in his country of
origin, a process that would limit the degree to which proceedings could be expedited. See
infra note 158. 97 Cf. Indiana v. Edwards, 554 U.S. 164, 176‐77 (2008) (identifying this governmental interest
in the criminal context); Amended Order Re Plaintiffs’ Motion for a Preliminary Injunction, at
42, Franco‐Gonzales v. Holder, No. CV 10‐02211 DMG (DTB) (C.D. Cal. 2010) (“Defendants do
not dispute that the public has a strong interest in accurate and fair determinations in removal
proceedings.”). 98 See e.g., 8 U.S.C. § 1158(b)(1)(B)(ii) (2006) (providing that in asylum proceedings
immigration judges can require any reasonably available corroboration); In re Y‐B‐, 21 I & N
Dec. 1136, 1139 (B.I.A. 1998) (setting high evidentiary burden). 99 Amended Order Re Plaintiffs’ Motion for a Preliminary Injunction, at 31, Franco‐
Gonzales v. Holder, No. CV 10‐02211 DMG (DTB) (C.D. Cal. 2010). 100 Brief for the Am. Psychiatric Ass’n and Am. Acad. of Psychiatry and the Law as Amici
Curiae in Support of Neither Party at 26, Edwards, 554 U.S. 164 (No. 07‐208), 2008 WL 405546,
quoted in Edwards, 554 U.S. at 176. 101 Atkins v. Virginia, 536 U.S. 304, 320 (2002).
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decide approximately four cases a day,102 roughly twice as many as Social Security Judges.103 (This figure is a low estimate; it does not include other resolutions such as transfers or closures, nor does it account for sick days, vacations, or holidays.) Judges must keep this pace with little assistance; if they are lucky enough to be at a court with law clerks, they generally share a clerk with three other judges.104
Four decisions a day might be feasible if these cases were simple, but they are often highly complex. Immigration law has been described as “second only to the Internal Revenue Code in complexity.”105 To apply it, one must navigate the fine print of thousands of pages of statutory provisions and regulations, not to mention the several hundred published circuit court decisions that are issued each year.106 Compounding the risk of error, a specialized DHS attorney appears in each of these cases, much like a prosecutor, and advocates the DHS’s interest in removing the respondent. This makes it all‐too‐easy for an unrepresented respondent to be overmatched.107 Finally, respondents who apply for relief from removal bear a high‐evidentiary burden, one that unrepresented, mentally disabled individuals cannot meet regardless of the merits of their cases.108
When all these risk factors are combined, there is an exceptionally high risk that mentally impaired respondents, if unrepresented, will be erroneously removed. Moreover, such error is essentially final. One relatively lucky family was able to locate a mentally disabled individual—incidentally, a U.S. citizen—erroneously removed to Mexico,109 but countless others, undoubtedly, have disappeared into their home country with no hope of re‐entering or of reopening their case from abroad.110
102 AM. BAR ASS’N, supra note 96, at 2‐16 & nn.121‐24 (citing EXEC. OFFICE FOR IMMIGRATION
REVIEW, U.S. DEP’T OF JUSTICE, FY 2008 STATISTICAL YEAR BOOK, at D1 fig.4 (2009), available at
http://www.justice.gov/eoir/statspub/fy09syb.pdf). 103 Id. at 2‐37 & n.304. 104 Id. at 2‐17. 105 Castro‐O’Ryan v. INS, 847 F.2d 1307, 1312 (9th Cir. 1988) (citing ELIZABETH HULL,
WITHOUT JUSTICE FOR ALL: THE CONSTITUTIONAL RIGHTS OF ALIENS 107 (1985)). 106 For example, one standard edition of the statute is 1015 pages long. See BENDER’S
IMMIGRATION AND NATIONALITY ACT SERVICE (2010 ed.) One standard edition of immigration‐
related regulations is 1867 pages. See BENDER’S IMMIGRATION REGULATIONS SERVICE (2010 ed.) 107 See Lassiter v. Dep’t of Soc. Servs., 452 U.S. 18, 28 (1981) (noting that “our adversary
system presupposes [that] accurate and just results are most likely to be obtained through the
equal contest of opposed interests”). 108 See supra note 98 and accompanying text. 109 See Problems with ICE Interrogation, Detention, and Removal Procedures: Hearing Before the
Subcomm. on Immigration, Citizenship, Refugees, Border Sec., and Int’l Law of the H. Comm. on the
Judiciary, 110th Cong. 30‐31 & 67 (2008) (statement of James J. Brosnahan, Senior Partner,
Morrison & Foerster, LLP). 110 8 C.F.R. § 1003.2(d) bars noncitizens from filing motions to reopen after they have been
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Under the logic of the Supreme Court’s civil due‐process jurisprudence, then, there is a strong argument for requiring representation for potentially incompetent noncitizens facing removal. Admittedly, it would be a novel application of Lassiter to hold that a whole class of individuals was entitled to representation, since Lassiter itself applies a case‐by‐case analysis. But this modification makes good sense from a judicial administration perspective: courts do not have the resources to analyze the factual nuances of each of these cases on an underdeveloped record without briefing from counsel or even from a competent litigant. Moreover, although Lassiter prescribes a case‐by‐case form, its analysis could be construed as functionally categorical, singling out various “‘special factors,’”111 all absent in Lassiter’s case, that would categorically require counsel. Among the factors that might require counsel, Lassiter mentioned the following: a respondent’s lack of capacity, the potential for criminal liability, the state’s introduction of expert witnesses, and particular complexity in the proceedings.112 Even if courts refuse to recognize a categorical right to representation under Lassiter, advocates could still build pressure for reform by making case‐specific arguments for representation under Lassiter.113
Providing representation or other protections for mentally ill respondents also makes particular sense because, without these protections, they cannot even access their basic civil procedural rights. At the very least, individuals in removal proceedings have the same procedural rights as any civil litigant. These rights include the constitutional right to examine the evidence against them, to present
physically removed from the United States. Courts are divided on the validity of this
regulation. Compare William v. Gonzales, 499 F.3d 329, 332 (4th Cir. 2007) (striking down the
regulation), with Rosillo‐Puga v. Holder, 580 F.3d 1147, 1156 (10th Cir. 2009) (upholding
regulation). For an in‐depth analysis of this issue, see Rachel E. Rosenbloom, Will Padilla
Reach Across the Border?, 45 NEW ENG. L. REV. 327, 346‐47 (2011). Nonetheless, even in
favorable jurisdictions, it is hard to imagine mentally impaired individuals who will be able,
from abroad, to locate the pro bono legal assistance necessary to argue against the application
of § 1003.2(d). 111 The “special factors” approach to right‐to‐counsel issues is most often associated with
Betts v. Brady, 316 U.S. 455, 463‐65, 473 (1942); see also infra Part II.C. 112 See Lassiter, 452 U.S. at 30‐33 (discussing relevant factors and applying these factors to
Abby Lassiter’s case). 113 One advantage to this approach is that advocates could highlight the interests of one
small subgroup of individuals removed without due process: U.S. citizens or individuals with
a colorable claim to citizenship, who arguably have a uniquely compelling right not to be
physically removed from the country or stripped of various rights of citizenship (such as the
right to work or to travel freely in and out of the country). See DEPORTATION BY DEFAULT,
supra note 18, at 4‐5 (noting that “[s]ome US citizens with mental disabilities may have been
deported to countries they do not know, and some of these people have not been or cannot be
found,” and citing specific instances).
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evidence on their own behalf, and to cross‐examine witnesses and evidence put on by the government.114 They have the right to: notice of the removal hearing that is reasonably calculated to reach them;115 be advised of the charged grounds for removal;116 retain counsel;117 and appeal an adverse IJ decision.118 In the criminal context at least, the Court has recognized that procedural rights are only real and adequate if an individual is able to exercise them (in that context, with assistance of counsel).119 Advocates can argue by analogy here: Without special assistance, mentally disabled noncitizens cannot exercise the basic civil procedural rights that the Constitution protects.
C. Due Process with Respect to Mental Incompetence
The third relevant area of law is the constitutional significance of mental incompetence per se, regardless of the nature of the proceedings. The issue of mental disability frequently arose during the Court’s gradual lead‐up to finding a constitutional right to counsel for all state criminal defendants in Gideon v. Wainwright.120 Initially, in Betts v. Brady, the Court rejected such a categorical right, reasoning that indigent state defendants were only entitled to counsel under special circumstances to be identified on a case‐by‐case basis.121 Only gradually, over the next twenty‐one years, did the Court work its way to an absolute right to counsel in criminal proceedings as it became increasingly clear that there could be no fair trial without counsel, no matter how able or eloquent a defendant might be. “[F]eeble‐mindedness,”122 “mental illness,”123 and limited “mental capacity”124 were instantly recognized as “special factors”—some of the most quickly accepted and uncontroversial—necessitating counsel. It is easy to see why: if the system employs a lawyer to present evidence and arguments against the defendant, and the defendant lacks the capacity to understand the evidence against him, to test the validity of that evidence, or to present his own evidence, then there is an unacceptably high risk of
114 Hernandez‐Guadarrama v. Ashcroft, 394 F.3d 674, 681 (9th Cir. 2005) (quoting 8 U.S.C. §
1229a(b)(4)(B)(2000)); see Kaur v. Ashcroft, 388 F.3d 734, 737‐38 (9th Cir. 2004) (finding a due
process violation where the IJ failed to allow a noncitizen to testify on her own behalf). 115 See e.g., Flores‐Chavez v. Ashcroft, 362 F.3d 1150, 1155 (9th Cir. 2004). 116 Hirsch v. INS, 308 F.2d 562, 566 (9th Cir. 1962). 117 8 U.S.C. § 1362 (2006); Rios‐Berrios v. INS, 776 F.2d 859, 862 (9th Cir. 1985). 118 Garcia‐Cortez v. Ashcroft, 366 F.3d 749, 753 (9th Cir. 2004). 119 See Cooper v. Oklahoma, 517 U.S. 348, 364 (1996). 120 372 U.S. 335 (1963). 121 316 U.S. 455, 473 (1942). 122 Id. at 463‐64 (discussing and quoting Powell v. Alabama, 287 U.S. 45, 71 (1932)). 123 McNeal v. Culver, 365 U.S. 109, 114 (1961). 124 Wade v. Mayo, 334 U.S. 672, 684 (1948).
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wrongful conviction. Or, as the Court stated in Massey v. Moore, “[n]o trial can be fair that leaves the defense to a man who is insane, unaided by counsel, and who by reason of his mental condition stands helpless and alone before the court.”125
In a twist on Gideon, the Court recently elaborated on the significance of representation in a decision limiting the right of criminal defendants to appear without counsel. In Indiana v. Edwards,126 the Court held that trial courts may impose counsel on unwilling defendants who are competent to be tried but not competent to present their own defense.127 In so doing, the Court recognized that the interests at stake are not only the defendant’s interest in a fair trial (which potentially, the defendant may be able to waive), but also the government’s interest in preserving the integrity of the judicial system and the guarantee of fairness that it provides to all individuals, whether or not they ever directly encounter the criminal‐justice system.128 Arguably, there is a direct analogy to the immigration context. Just as it is essential to our self‐image as a free nation to protect the integrity of our criminal‐justice system, it is also essential to our self‐image as a nation of immigrants to ensure that our immigration system fairly determines who can stay here and who must leave.
In the civil context, the Court also has recognized the importance of providing GALs for mentally incompetent litigants. It promulgated Federal Rule of Civil Procedure 17(c), which instructs courts to “appoint a guardian ad litem—or issue another appropriate order—to protect a minor or incompetent person who is unrepresented in an action.”129 At least one district court has found—based on a straight Mathews v. Eldridge analysis with no mention of Lassiter—that mentally incompetent public‐housing tenants facing housing court proceedings have a due‐process right to representation, either by a “suitable [volunteer] representative” or by an appointed “advocate or guardian.”130
In addition to these three lines of cases, there are a few decisions that combine the special status of immigration law with the special circumstances of minor respondents. In these decisions, courts have required the Attorney General to appoint GALs to protect the interests of minors involved in removal proceedings—with glancing reference to the serious interest at stake and to the minor’s limited capacity, but
125 348 U.S. 105, 108 (1954). 126 554 U.S. 164 (2008). 127 Id. at 177‐78. 128 Id. at 176‐77. 129 FED. R. CIV. P. 17(c). Rule 17(c), however, relies on the availability of volunteer guardians
ad litem; there is no funding available to compensate guardians. 130 Blatch v. Hernandez, 360 F. Supp. 2d 595, 621‐22 (S.D.N.Y. 2005).
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unfortunately without analysis or specific instructions.131
The three distinct areas of case law outlined above provide strong doctrinal support for the proposition that seriously disabled noncitizens in removal proceedings must be afforded special protections beyond the limited protections already prescribed by the regulations. Removal requires a particularly high level of process because it is akin to, and often worse than, penal incarceration. Even in the civil context generally, due process can require representation, at least on a case‐by‐case basis, when fundamental interests are at stake. And even a case‐by‐case analysis would suggest prioritizing representation for particularly vulnerable populations (such as the mentally disabled), just as the Court did, pre‐Gideon, when it applied the Fifth Amendment to require counsel for mentally disabled defendants in criminal proceedings.
III. Imagining Possible Solutions
Having explained the legal arguments why the courts must take affirmative measures to protect the rights of potentially incompetent noncitizens in removal proceedings, I turn next to the practical issue of what measures might be feasible and adequate.
A. Standard(s) for Competence
Before immigration courts can implement any new system, they first need a workable definition (or definitions) of incompetence. In the criminal context, a defendant is deemed incompetent to stand trial if he lacks either “sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding” or “a rational as well as factual understanding of the proceedings against him.”132 In the civil context, the standard is slightly modified because civil litigants may be unrepresented; courts examine a litigant’s ability to understand the nature of the proceedings, and (if unrepresented) to present his arguments and defenses and defend his rights.133 In other words, incompetence is a broader concept in the civil context, albeit with less dramatic legal implications in that civil cases can go forward with incompetent litigants as long as they are adequately assisted by counsel, a guardian, or both. In both the criminal and civil contexts, “competency” combines passive ability (put simply, the
131 See, e.g., Johns v. Dep’t of Justice, 624 F.2d 522, 523‐24 (5th Cir. 1980) (requiring a GAL
and compiling supportive cases). 132 See Dusky v. United States, 362 U.S. 402, 402 (1960). 133 See, e.g., United States v. 30.64 Acres of Land, 795 F.2d 796, 805 (9th Cir. 1986); Blatch, 360
F. Supp. 2d at 621‐22 (requiring appointment of guardian or representative for unrepresented
public housing litigants incapable of “present[ing] . . . [their] side of the issue”); Bowen v.
Rubin, 213 F. Supp. 2d 220, 223 (E.D.N.Y. 2001) (finding incompetent under relevant state law
civil litigants “incapable of adequately prosecuting or defending [their] rights”).
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ability to understand what is taking place) and active ability (the ability to participate in the proceedings and to make decisions related to the proceedings).
In the context of removal hearings, courts should be instructed to determine whether respondents are capable of presenting arguments and defenses against removal as well as claims for any available relief.134 Courts also must determine whether respondents are capable of consulting with counsel and making decisions. For all impaired respondents, courts will need to assess other capacities as well, such as the capacity to testify.
B. Duties of the DHS and IJs to Develop the Record
For mentally impaired individuals to be afforded due‐process protections in removal proceedings, they first must be recognized as impaired. The DHS, which plays a prosecutorial role in removal proceedings and in many cases has custody over respondents, often has access to information calling competency into doubt, such as mental‐health treatment records from a respondent’s time in custody, or information that a respondent has previously been involuntarily committed or adjudged incompetent in prior criminal proceedings or any other context. By contrast, the respondent himself may not be aware that he suffers from a disability (a common feature of mental illness)135 or that his mental status may entitle him to additional protections. He may well be unrepresented (as in the overwhelming majority of detainee cases), and even if he is represented, his attorney may have highly limited access to him if he is detained.
Currently, the DHS denies any obligation to bring information relating to competency to the court’s attention.136 The DOJ should promulgate regulations requiring DHS attorneys appearing in its courts to disclose competency facts. Courts have required adversaries to volunteer competency‐related information in other contexts, such as criminal137 and housing‐court proceedings,138 and due process requires the same rule here.
134 Cf. Blatch v. Hernandez, No. 97 Civ. 3918(LTS)(HBP), 2008 WL 4826178, at *4 (S.D.N.Y.
2008) (quoting the settlement of litigation over the rights of mentally disabled public‐housing
tenants in housing‐court proceedings, which defines an “incompetent” person as someone
who “as a result of mental disease or defect . . . is unable to (1) understand the nature of the
proceedings or (2) adequately protect and assert his/her rights and interests in the tenancy”). 135 See AM. PSYCHIATRIC ASS’N, DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL
DISORDERS 279 (4th ed. 1994). 136 See supra note 41 and accompanying text. 137 See United States v. Spagnoulo, 960 F.2d 990, 995 (11th Cir. 1992) (holding that
prosecutor’s Brady obligations include the obligation to disclose evidence bearing on
competency). 138 See, e.g., Blatch, 360 F. Supp. 2d at 632 (finding that New York City had violated tenants’
due process rights by failing to notify the housing court of their mental disabilities and
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At the same time, the DHS may have an institutional incentive to ignore or downplay evidence bearing on competency (to facilitate removal, simplify the removal proceedings, and avoid the cost of additional treatment). Thus an important component of this duty would be a provision allowing for cases to be reopened where a respondent could present evidence that the DHS had material information concerning competency that it failed to disclose.
A further question is what obligation the courts may have to investigate potential incompetence. In the civil context generally, some appellate courts have been reluctant to require that district courts inquire into competency whenever a litigant’s bizarre behavior raises a “substantial question” as to competency.139 Fearing that such a requirement would unduly burden trial courts, one appellate court held that courts need not inquire unless they encounter “actual documentation or testimony by a mental health professional, a court of record, or a relevant public agency” that a plaintiff might not be competent.140 Such a rule would, however, be harsh in cases where an individual is forced into court proceedings, where liberty and not merely property is at stake, and where a respondent may well be detained, unrepresented, or unaware of his own condition.
Moreover, unlike Article III judges, IJs have a particular duty to develop the record in immigration proceedings under domestic and, in some cases, international law. By statute, the IJ “shall administer oaths, receive evidence, and interrogate, examine, and cross‐examine the alien and any witnesses.”141 In other words, the IJ has a far more active role than is customary for adjudicators in the adversarial system. The IJ’s duty has also been tied to the due‐process rights of noncitizens appearing in immigration court.142 In asylum proceedings, the United Nation’s Handbook on Procedures and Criteria for Determining Refugee Status, interpreting international law, states that “the duty to ascertain and evaluate all the relevant facts is shared between the applicant and the examiner,” and that the adjudicator’s role is to “[e]nsure that the applicant presents his case as
potential incompetence to represent themselves); N.Y. C.P.L.R. 1201 cmt. (McKinney 1997)
(“Where a party has information indicating that another party is incompetent to protect his
interests it should be revealed to the court so that the court can appoint a guardian. Failure to
suggest the party’s inadequacy to the court would constitute a fraud which could be the basis
for a motion to set aside any judgment.”). 139 Ferrelli v. River Manor Health Care Ctr., 323 F.3d 196, 201 (2d Cir. 2003); accord McLean
v. CMAC Mortgage Corp., 398 F. App’x 467, 470 (11th Cir. 2010). 140 See Ferrelli, 323 F.3d at 201 n.4; cf. United States v. 30.64 Acres of Land, 795 F.2d 796, 806
(9th Cir. 1986) (holding that it was an error not to consider appointing GAL where the litigant
presented a record of Social Security Administration disability finding). 141 8 U.S.C. § 1229a(b)(1) (2006). 142 See, e.g., Jacinto v. INS, 208 F.3d 725, 734 (9th Cir. 2000).
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fully as possible and with all available evidence.”143
Thus, regulators should require judges to inquire into competency whenever a substantial question (or substantial doubt) exists, even if the only evidence giving rise to that doubt is the respondent’s own behavior (such as extreme listlessness or apathy, confusion, dissociation, or aggression). By way of comparison: in response to successful constitutional litigation in the public housing context, the New York City Housing Authority is now required to refer tenants in adversarial proceedings for competency evaluations in a range of scenarios, including if the tenant indicates that he has a “mental disease” or if “[he] has exhibited seriously confused or disordered thinking.”144 Where doubt exists as to competency, regulators should also require the DHS to produce detained respondents in court rather than by videoconference so that IJs can directly observe and evaluate their behavior.145 And, if a respondent is found marginally competent, courts must periodically revisit the competency question. As the Supreme Court has recognized, mental illness can “vary over time” and “interferes with an individual’s functioning at different times in different ways.”146
Once the issue of competency is raised, the next question is who assesses it. The DHS already has access to evaluators, particularly in the case of detained respondents whom it may already be treating for mental illness.147 However, given the DHS’s clearly conflicting interest,148 the DOJ should maintain its own panel of experts who could address the
143 U.N. High Commissioner for Refugees, Handbook on Procedures and Criteria for
Determining Refugee Status paras. 196, 205(b)(i) (Jan. 1992), quoted in, Jacinto, 208 F.3d at 732‐
33; accord Agyeman v. INS, 296 F.3d 871, 884 (9th Cir. 2002). Although the United Nations
High Commissioner for Refugees’ (“UNHCR”) Handbook is not binding on U.S. courts, the
Supreme Court has recognized it as persuasive authority because of the UNHCR’s role in
interpreting the refugee treaty on which U.S. law is based. See INS v. Cardoza‐Fonseca, 480
U.S. 421, 438‐39 & n.22 (1987). 144 Robert T. Drapkin, Protecting the Rights of the Mentally Disabled in Administrative
Proceedings, 39 CATH. LAW. 317, 347 (2000). 145 See Ramshaw, supra note 41 (noting frequent use of videoconferencing and the obstacle
it poses to recognizing mental incompetence). 146 Indiana v. Edwards, 554 U.S. 164, 175 (2008). 147 Treatment is often provided by independent contractors. 148 In one case: the IJ ordered DHS to produce a competency evaluation; DHS produced an
evaluation finding the respondent competent; the IJ called the expert into court and
questioned him; and ultimately the IJ decided that the report was not sufficiently objective.
Telephone Interview with anonymous government lawyer, Oct. 15, 2010 (notes on file with
author). Apart from the institutional conflict, professional norms within the field of
psychology preclude treating physicians from providing forensic evaluations. See Letter from
Am. Civil Liberties Union et al. to Assistant Chief Immigration Judge Jeffrey Romig et al., 3
n.3 (Oct. 29, 2010), available at http://www.legalactioncenter.org/sites/default/files/docs/
lac/NGO‐letter‐to‐DOJ‐MH%20Roundtable‐10‐29‐10.pdf.
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significance of cognitive limitations as well as mental illness. Failing that, IJs should have a duty to closely examine DHS‐affiliated competency experts before accepting their assessments that a respondent is competent to proceed without safeguards.
C. Necessary Protections
1. Representation
The most difficult practical question is what immigration courts should do once they find that a noncitizen respondent is mentally incompetent or otherwise seriously disabled. As previously mentioned, many IJs have pursued a variety of measures to protect disabled respondents, some more robust than others,149 but too often IJs have done nothing, particularly where an individual’s disability did not obviously disrupt the proceedings.150 And indeed the statute prescribes no specific measures; regulatory prescriptions are few and inadequate; and the BIA, in general, has favored the do‐nothing approach.151
The most important safeguard would be actual representation in the form of counsel or a guardian. In the civil context generally, guardianship ad litem is the default safeguard to protect litigants who are not competent to represent themselves. While appellate courts are reluctant to require trial courts to actively inquire into the competency of civil litigants whenever any doubt arises, they do agree that once a litigant is deemed incompetent, a guardian must be appointed.152 Indeed, as previously mentioned, the Attorney General solicited comments in 1997 on whether to create a system for appointing guardians and has been “studying” the possibility ever since.153 One suspects that the primary virtue of guardians, from the government’s point of view, is that they are often family members or friends who are willing to participate for free.
Many advocates are wary of too heavy a reliance on GALs, primarily for two reasons. First, noncitizens may be “incompetent” in the sense that they cannot present their case but nonetheless competent to make decisions and consult with an attorney. Making guardianship the remedy of first resort could unnecessarily diminish their autonomy.154 Second, non‐attorney guardians might not be able to effectively advocate for their ward because they might not be able to make necessary legal arguments related
149 See supra notes 36‐43 and accompanying text. 150 See supra note 40 and accompanying text. 151 See supra notes 47‐49 and accompanying text. 152 See United States v. Mandycz, 447 F.3d 951, 962 (6th Cir. 2006). 153 See supra notes 25‐28 and accompanying text. 154 Brief for AIC, supra note 41, at 18‐19.
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to statutory interpretation or the application of law to facts.155 In other words, ironically, a blanket guardianship remedy would be both excessive and inadequate. Therefore, advocates argue, the government must afford incompetent respondents in removal proceedings counsel and also, in the rarer cases of extreme incompetence, a GAL.156
This position has obvious appeal. There is no question that, as a general matter, attorneys are far better able to navigate the maze of immigration laws that could affect a particular individual.157 Attorneys, with their knowledge of the surrounding legal framework, might be more skillful than laypersons in gathering corroboration for a respondent’s application for relief from removal.158 As Nadine’s story illustrates, corroboration is especially crucial if the respondent’s own testimony is compromised by a severe mental disability. While courts traditionally have looked to family members to act as guardians,159 many family members are incapable of researching the facts and pressing legal arguments on behalf of a mentally impaired respondent and may even have their own conflicting interests.160 Moreover, a guardianship system that relied on
155 Id. at 17‐18. 156 See, e.g., TEX. APPLESEED, supra note 36, at 55‐58 (recommending that IJs first appoint
counsel for any respondent who appears impaired, then hold a competency hearing, and then
also appoint a guardian if the IJ finds the respondent incompetent); Brief for AIC, supra note
41, at 16‐22 (arguing that counsel is required for any individual not competent to represent
himself, and that a guardian is also required for individuals not competent to consult with
counsel); see also Letter from Merrill Rotter, M.D., Dir. Div. of Law and Psychiatry, Albert
Einstein Coll. of Med., et al. to Eric H. Holder, Jr., U.S. Att’y Gen. (July 24, 2009), available at
http://www.legalactioncenter.org/sites/MentalDisability‐7‐24‐09.pdf. 157 There are numerous exceptions to this rule, however. Because immigration law is so
complex and distinctive, it can be very hard for even nonspecialist attorneys to pick up. The
author has repeatedly heard nonspecialists in immigration court indicating to the court that
their client “pleaded guilty” to the government’s allegations and has seen records reflecting
terrible strategic choices made by nonspecialists. And even many specialists fail to adequately
represent their clients because they take on an inappropriately high volume of cases and
because immigrants are not well‐equipped to enforce their own rights as clients. 158 For example, to establish eligibility for asylum or other fear‐based forms of relief, an
individual must document past harm and/or the threat of future harm through witness
affidavits, medical evidence, psychiatric evidence, country condition evidence (including
expert testimony), and other evidence (such as political‐party membership cards or police
summons). To establish eligibility for cancellation of removal, an applicant might need to
gather evidence of good moral character and hardship to family members, such as statements
by family members, employers, clergy, or others. 159 See 8 C.F.R. § 1204.4 (2010) (allowing a “near relative” or “friend” to appear on behalf of
an incompetent respondent). 160 See Amended Order Re Plaintiffs’ Motion for a Preliminary Injunction at 32 Franco‐
Gonzales v. Holder, No. CV 10‐02211 DMG (DTB) (C.D. Cal. 2010) (quoting declaration by
petitioner’s mother that she does not understand legal terminology, does not know how to
use a computer, and does not have any books about the law). Some family members might
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volunteers would be ill‐equipped to handle individuals like Carlos who do not have close friends or family willing to serve as a guardian. Finally, counsel fills a very different role than a GAL, at least in theory,161 and many respondents might well be “incompetent” to present their own case but nonetheless “competent” to work with counsel.162 Congress recognized this distinction between guardians and advocates recently, when it authorized Health and Human Services (“HHS”) to appoint “child advocates” to advance the best interest of unaccompanied minors and exhorted the agency to ensure “to the greatest extent practicable” that unaccompanied minors facing removal are represented by counsel.163
There are, however, problems with any proposal requiring distinct advocate and guardian representatives. For one thing, the unfortunate reality is that many immigrants with no mental disability—perhaps even the majority—are, in a nonlegal sense, “incompetent” to represent themselves. Language and cultural barriers; educational deficiencies; psychological factors such as anxiety; lack of financial resources to gather necessary corroboration; and simply lack of knowledge of the law frequently prevent applicants from being able to present their case. (This is all the more true because immigration law is so complex it invites comparisons to the Internal Revenue Code164 and because recent revisions to asylum law place an enormous burden on applicants to present evidence corroborating their account of past and/or feared persecution.)165 Non‐
have their own interests that could conflict with the respondent’s best interests. A family
member might, for example, not want an individual released from detention (if the individual
is likely to be a burden or a danger to that family member), or might not want to conduct a
factual investigation that, in an asylum case, could endanger other family members by
drawing the attention of potential persecutors. At the same time, family members can be
incredibly helpful in these cases because they can convey details about the respondent’s life
that may raise the possibility of claims the representative might not have thought of. 161 The reality is that attorneys often face ethical issues working with impaired clients. The
ABA Model Rule of Professional Conduct 1.14 and accompanying comments, recognizes this
reality. See MODEL RULES OF PROF’L CONDUCT R. 1.14 cmts. 1‐ 3, 7 (2011). The rule instructs
attorneys to maintain an ordinary lawyer‐client relationship “as far as reasonably possible,”
while authorizing them to take protective actions in emergency situations and to use their
own judgment in deciding whether appointment of guardian is necessary. Id. R. 1.14(a)‐(b). 162 See Indiana v. Edwards, 554 U.S. 164, 175‐76 (2008). 163 8 U.S.C.S. § 1232(c)(5)‐(6) (Supp. 2009); cf. QUALITY SERV. OFFICE, LEGAL AID ONT.,
PRACTICAL TIPS: REPRESENTING MINORS & PERSONS WITH MENTAL HEALTH DISORDERS OR
DISABILITY BEFORE THE IRB 7‐9 (2007), available at http://www.legalaid.on.ca/en/info/
downloads/IRB_Practical_Tips.pdf (noting that in Canada the government pays for
designated representatives, in addition to counsel, to advocate for the best interests of persons
who because of mental disability are “unable to appreciate the nature of the proceedings”). 164 Castro‐O’Ryan v. Dep’t of Immigration & Naturalization, 847 F.2d 1307, 1312 (9th Cir.
1988) (citing HULL, supra note 105, at 107). 165 See 8 U.S.C. § 1158(b)(1)(b)(ii)‐(iii) (2006) (providing that immigration judges can require
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attorney guardians may not be adequate to protect the rights of incompetent respondents, but they are no more inadequate than the lack of representation that, thus far at least, courts have found constitutionally acceptable.166 Moreover, given the current political realities and given that the DOJ cannot afford to provide each immigration judge with even one‐third of a law clerk,167 it is unimaginable that the DOJ would muster sufficient resources to guarantee counsel and a guardian for particular respondents. Nor is it clear that immigrant legal aid organizations or the private bar, which already struggles to provide sufficient pro bono resources, could produce anything near that number of representatives.
At any rate, the system already allows for nonlawyers to represent respondents, as long as they are of good moral character, and this provision has not been a particular source of controversy.168 In fact, in a study of immigration proceedings, the ABA recently found that “the availability of some form of competent, qualified representation is what matters most, not necessarily whether that person is a lawyer or nonlawyer or whether, if a lawyer, the person is an immigration practitioner or a less‐experienced pro bono representative.”169 Recently, a district court judge, hearing an argument that the DOJ should be required to appoint counsel for two mentally ill petitioners, declined to require counsel but did require a “qualified representative” and directed that the person selected:
(1) be obligated to provide zealous representation; (2) be subject to sanction by the EOIR for ineffective assistance; (3) be free of any conflicts of interest; (4) have adequate knowledge and
any reasonably available corroboration); see also In re Y‐B‐, 21 I & N Dec. 1136, 1150‐53 (B.I.A.
1998) (setting high evidentiary burden). 166 See, e.g., Morales‐Izquierdo v. Gonzales, 486 F.3d 484, 497 (9th Cir. 2007) (no general
right to counsel in removal proceedings). 167 See Case Backlogs in Immigration Courts Expand, Resulting Wait Times Grow, TRAC
IMMIGRATION (June 18, 2009), http://trac.syr.edu/immigration/reports/208/. 168 See 8 C.F.R. § 1292.1(a) (2010) (allowing for representation by supervised law students,
accredited representatives, persons of good moral character with a preexisting relationship
with the respondent or even, with a waiver from DHS, without such a preexisting
relationship). Other countries similarly allow skilled non‐attorneys to represent individuals in
immigration proceedings. See, e.g., Becoming an Agent: Knowledge Requirements, AUSTRALIAN
GOV’T OFFICE MIGRATION AGENTS REGISTRATION AUTHORITY, http://www.mara.gov.
au/Becoming‐an‐Agent/Registration‐Requirements/Knowledge‐Requirements/Knowledge‐
Requirements/default.aspx (last visited Apr. 8, 2011) (linking to document with quality
control standards); Immigration Consultants, Lawyers, and Other Representatives: Who Can
Represent You, CITIZENSHIP & IMMIGR. CAN., http://www.cic.gc.ca/english/information
/representative/rep‐who.asp (last visited Apr. 8, 2011). 169 See AM. BAR ASS’N, supra note 96, at 5‐10; see also Andrew I. Schoenholtz & Jonathan
Jacobs, The State of Asylum Representation: Ideas for Change, 16 GEO. IMMIGR. L.J. 739, 758 (2002)
(citing a study showing that accredited representatives provide a “high quality of
representation”).
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information to provide representation at least as competent as that provided by a detainee with ample time, motivation, and access to legal materials; and (5) maintain confidentiality of information.170
Significantly, even the due‐process case law on which advocates rely in making the counsel argument is itself ambiguous. In the landmark due‐process case Vitek v. Jones, concerning the rights of prisoners facing transfer to a mental treatment facility, only a plurality concluded that individuals in involuntary commitment proceedings were entitled to representation by an attorney.171 Justice Powell, who provided the necessary fifth vote supporting the injunction against the transfer, concluded that states could also satisfy due process by appointing a “qualified and independent” non‐attorney representative.172
Based on these conflicting considerations, I propose that funding be established to appoint representatives who are either lawyers or “accredited representatives,”173 sufficiently trained in immigration law to gather necessary evidence, and who also are trained to play a GAL role if necessary.174 Ideally, the funding would be in the form of contracts with legal services organizations, some of which might develop special units dedicated to working with mentally disabled individuals.
Under my proposed system, the IJ would assess: (1) whether an individual was competent to represent himself; and if not, (2) whether he was competent to make decisions in the litigation. If the respondent was incompetent to represent himself but competent to make decisions, the IJ would appoint a representative in the role of traditional advocate. If the respondent was not competent to make decisions and there was an
170 Amended Order Re Plaintiffs’ Motion for a Preliminary Injunction at 38 Franco‐
Gonzales v. Holder, No. CV 10‐02211 DMG (DTB) (C.D. Cal. 2010). 171 446 U.S. 480, 496‐97 (1908). 172 Id. at 500 (Powell, J., concurring). 173 To be approved as an “accredited representative” authorized to appear in immigration
court, an individual must demonstrate to EOIR that he is sufficiently trained, experienced,
and knowledgeable, and works at an organization with sufficient resources to ensure
competent representation. See 8 C.F.R. §§ 1292.1(a)(4), 1292.2; see also EOIR Recognition and
Accreditation Program Overview, EXEC. OFFICE OF IMMIGR. REV. (Feb. 4, 2011),
http://www.justice.gov/eoir/statspub/raroster_files/RA_Overview_%202011‐02‐04.pdf.
Accredited representatives are subject to EOIR’s rules of professional conduct. See 8 C.F.R. §
1292.3. 174 These representatives could also be appointed as GALs for represented but indigent
respondents if, for example, a pro bono counsel is unable to obtain his client’s informed
consent to the release of relevant medical information. See, e.g., CAIR COAL. & COOLEY,
GODWARD, KRONISH, LLP, supra note 2, at apps. 13‐14 (publishing redacted petitions for GAL
appointment for this purpose).
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appropriate family member or friend willing to serve as a GAL,175 then the IJ would appoint a publicly‐funded advocate to work with the GAL. If there was no appropriate volunteer GAL on hand, the IJ would appoint a representative to play a dual advocate‐guardian role. For example, if a respondent were found incompetent to determine his own interests in the removal proceedings, the representative might, acting in her guardian role, oppose removal even though the respondent expressed resignation or a desire to be removed.176 The representative might also, even if unable to obtain express consent, access medical or other confidential records necessary to make the respondent’s case or contact potential witnesses on the respondent’s behalf.
To be sure, it requires a great deal of mental flexibility for a guardian to play a range of roles depending on her client’s capacity, but courts already require representatives to play a hybrid guardian‐counsel role, to varying degrees, in other contexts. The most common area in which lawyers must balance the two roles is in family law proceedings where the court appoints an attorney to represent an interested minor.177 As one court described this role:
[A] law guardian appointed . . . in a custody case . . . is not strictly an arm of the Court but, rather, has the hybrid role of attorney/advocate and investigator/proponent of the child’s best interests. The balancing of those roles in a particular case may well depend on the age(s) and maturity of the child(ren).178
175 See Whitmore v. Arkansas, 495 U.S. 149, 163 (1990) (explaining in the habeas context that
“‘next friend’ standing is by no means granted automatically to whomever seeks to pursue an
action on behalf of another”). 176 See DEPORTATION BY DEFAULT, supra note 18, at 26‐27 (noting interviews with mentally
disabled individuals who indicated that they might sign a deportation order just to “get out”
of detention, but who seemed not to understand that deportation would mean returning to
their country of origin). The author spoke with one private immigration attorney who had a
GAL appointed in federal court in order to pursue relief over his client’s opposition. Each
time the attorney submitted papers in that protracted litigation, he sought the guardian’s
approval. In that case, the guardian was something of a formality, as the attorney had
represented this client for years and knew him far better than the guardian, and as the client’s
best interests (with respect to the litigation) were relatively clear. Telephone Interview with
anonymous private attorney (Jan. 5, 2011). 177 See, e.g., In re Marriage of Rolfe, 699 P.2d 79, 86‐87 (Mont. 1985) (finding in custody
dispute that a child’s appointed attorney should advocate his client’s best interests but give
“serious consideration” to her wishes); Collins v. Tabet, 806 P.2d 40, 49 (N.M. 1991) (“The
guardian ad litem thus may fulfill the dual role of providing information to the court to
enable it to pass on the reasonableness of a settlement, while at the same time protecting the
wardʹs interests by zealous advocacy and thorough, competent representation.”); Carballeira
v. Shumway, 710 N.Y.S.2d 149 (App. Div. 2000) (holding that the law guardian properly
advocated position at odds with client’s express wishes). 178 Bradt v. White, 740 N.Y.S.2d 777, 781‐82 (Sup. Ct. 2002) (holding that law guardians are
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More generally, the Model Code of Professional Responsibility Ethical Considerations explain that:
Any mental or physical condition of a client that renders him incapable of making a considered judgment on his own behalf casts additional responsibilities upon his lawyer. . . . If a client under disability has no legal representative, his lawyer may be compelled in court proceedings to make decisions on behalf of the client. . . . If the disability of a client and the lack of a legal representative compel the lawyer to make decisions for his client, the lawyer should consider all circumstances then prevailing and act with care to safeguard and advance the interests of his client.179
Implicit in this advice is the recognition that lawyers sometimes will find themselves in a quasi‐guardian role (i.e., where it would be against the client’s interests to seek guardianship) and that the role may vary over time, particularly with a client whose competency fluctuates. This guidance has been cited in the criminal context for the proposition that defense attorneys can and should take actions to protect the interests of significantly impaired clients, even against their wishes.180 What these cases from the family law context and elsewhere show is that, while there may be very good reasons to require advocates to serve their clients’ wishes whenever possible, there is precedent for establishing a representation role that combines advocacy with at least some protectiveness.
For my proposed system to function, the DOJ would have to take a number of steps beyond funding representation. First, it would need to promulgate a canon of ethics specific to the immigration system that required representatives appointed in a guardianship capacity to preserve
entitled to “quasi‐judicial immunity”). In New York, the legislature just revised the
terminology for lawyers representing minors in family court; whereas they used to be called
“law guardians,” a term suggesting a role with a guardianship aspect, they are now called
“attorney[s] for the child.” Representation of Children, 2010 N.Y. Sess. Laws Ch. 41
(McKinney). There is no indication, however, that this change in terminology now prevents
attorneys from continuing to exercise their own judgment about their client’s best interest. 179 MODEL CODE OF PROF’L RESPONSIBILITY EC 7‐12 (1983). EC 7‐12 does, however, add the
following caveat: “But obviously a lawyer cannot perform any act or make any decision which
the law requires his client to perform or make, either acting for himself if competent, or by a
duly constituted representative if legally incompetent.”Id.; see also MODEL RULES OF PROF’L
CONDUCT R. 1.14(a) (2008) (explaining that “[w]hen a client’s capacity to make adequately
considered decisions in connection with a representation is diminished, . . . the lawyer shall,
as far as reasonably possible, maintain a normal client‐lawyer relationship with the client”). 180 See Thompson v. Wainwright, 787 F.2d 1447, 1450‐52 (11th Cir. 1986) (holding that a
criminal defense lawyer failed to provide effective assistance when he followed his mentally
disabled client’s instruction not to search for mitigating evidence); State v. Aumann, 265
N.W.2d 316, 319 (Iowa 1978) (holding that it was proper for a criminal attorney to pursue
appeal over potentially incompetent defendant’s objections).
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their client’s autonomy and take their expressed wishes into account to the extent possible, much as GALs do when they represent children in various proceedings.181 Second, these representatives would have to be subject to EOIR oversight, just as other attorney and non‐attorney representatives are.182 To facilitate quality control, it would be important for the DOJ to create a special unit within immigration courts to train representatives and monitor their performance. In the New York housing‐court context, for example, the court has a GAL program, currently run by an attorney with a social work degree, that recruits, trains, and serves as a resource for GALs who represent mentally disabled tenants.183
Of course, the DOJ could provide counsel but leave it to counsel to locate a guardian. While such a system might work, my proposal makes more sense. One can assume that appointed attorneys, if publicly funded, would be resource‐strapped. It might be easy for them to locate family members in some cases (and my proposal takes that into account by suggesting that, where an appropriate family member was at hand, an appointed representative could have such an individual appointed as a guardian). In many other cases, no appropriate family member is available. To develop a ready pool of volunteer guardians, advocates would have to draw on the already overstretched supply of pro bono attorneys who serve other unrepresented clients. Moreover, a requirement that appointed representatives search for such a volunteer would inevitably distract them from the more important tasks of determining what relief is possible and preparing evidence to support an application for relief. For these reasons, it makes the most sense to allow for hybrid representation where a respondent is severely impaired and where there is no volunteer GAL readily at hand.
Even though the reform I am proposing is more substantial than the mere appointment of lay guardians such as family members, I expect it will draw objections, both practical and legal, from advocates. On a practical level, accredited representatives may not advocate as skillfully as attorneys.184 Moreover, the dual advocate‐guardian role is a difficult one, and there is the risk that, in juggling the two, an advocate (whether an attorney or not) will fall short in one or both roles. She may, for example,
181 Cf. AMER. BAR ASS’N, STANDARDS OF PRACTICE FOR LAWYERS WHO REPRESENT CHILDREN
IN ABUSE AND NEGLECT CASES, at § B (1996), available at http://www.americanbar.org/content
/dam/aba/migrated/family/reports/standards_abuseneglect.authcheckdam.pdf (instructing
attorney to represent child’s expressed preferences except in limited circumstances where
substitution of judgment becomes necessary). 182 See 8 C.F.R. §§ 292.3, 1003.101‐08 (2010). 183 See N.Y.C. Civil Court Housing Part, Prospective Guardians Ad Litem, N.Y. STATE UNIFIED
CT. SYS., http://www.nycourts.gov/courts/nyc/housing/GALprospective.shtml (last visited
Apr. 8, 2011). 184 See supra notes 157‐58 and accompanying text.
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focus too much on figuring out what a client’s best interests are and not enough on preparing evidence and legal arguments to make his case. Or she may become too focused on “winning” and, as a result, give the client’s wishes, priorities, and general perspective too little weight in defining success.
These are important concerns, but I would argue they are outweighed by the benefits of my proposal. As set forth above, in light of the political situation and EOIR’s general shortage of resources, a proposal that requires an attorney in every case involving a significant mental disability, and two representatives in many instances, is far less likely to materialize. And in the meantime, under the status quo of only sporadic protection, many individuals will either be wrongfully removed, often to dangerous situations, or will suffer prolonged immigration detention; many individuals will suffer both. This is a problem that has festered for over fifty years, since Congress first directed the Attorney General to “prescribe safeguards” in 1952.185 While there are real drawbacks to hybrid representation, these could be minimized by limiting this representation to cases where close family members or friends are not readily available. Lawyers can and do represent clients with impaired competence in various other contexts as described above; they can do the same here.
As for the proposed use of accredited representatives, these representatives (for better or worse) are an essential part of the patchwork of legal assistance available to low‐income noncitizens. The accreditation process is a meaningful one,186 and, as previously mentioned, accredited representatives have been found to provide a high level of service—possibly higher than that provided by many attorneys.187 While this solution is far from perfect, it may be the best possible option and it is at least a start.
Related to these practical issues, there is case law suggesting an aversion both to non‐attorney representation and to the hybrid model of representation. I address these two lines of cases in turn. The concern about non‐attorney representation often arises when laymen try to bring suit on behalf of their children. A number of courts have rejected these suits, all on essentially the same reasoning: (1) the right to appear pro se is a personal right that children are not competent to exercise; and (2) children’s claims may be jeopardized by inexpert representation.188
185 Immigration and Nationality Act, Pub. L. No. 82‐414, § 242(b), 66 Stat. 163, 209 (1952). 186 See supra note 174 and accompanying text. 187 See supra note 169 and accompanying text. 188 See, e.g., Johns v. Cnty. of San Diego, 114 F.3d 874, 876‐77 (9th Cir. 1997); Osei‐Afriyie v.
Med. Coll. of Pa., 937 F.2d 876, 882‐83 (3d Cir. 1991); Cheung v. Youth Orchestra Found. of
Buffalo, Inc., 906 F.2d 59, 61‐62 (2d Cir. 1990); Meeker v. Kercher, 782 F.2d 153, 154 (10th Cir.
1986) (per curiam); cf. Brown v. Ortho Diagnostic Sys., Inc., 868 F. Supp. 168, 171‐72 (E.D.Va.
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However, these cases rest on policy considerations that are absent here. First, the guardians in these cases were all non‐attorney parents unskilled in the law, such that their attempts to litigate the cases directly jeopardized their children’s interests. In one case, Gallo v. United States, it was especially clear that the court was concerned about litigation skills and not about role confusion because the court actually suggested that, if the parent were unable to retain counsel, the court would “consider appointment of a guardian ad litem or other attorney to represent [the child’s] interests.”189 My proposal alleviates this concern by requiring that representatives be skilled and accredited.
More importantly, these cases reflect a general anxiety about the presence of pro se litigants in federal court and the burdens they impose on the court (and sometimes on their adversaries as well). The Cheung opinion, in particular, plainly was reacting against what it called the potentially “abusive” nature of that suit, a seemingly frivolous claim that an orchestra had discriminated against the daughter by placing her too far back in the violin section.190 My proposal lessens the burden on immigration courts by helping them hear the cases they are required to hear. Finally, in at least some of the cases, the ward’s minority status tolled any applicable statute of limitations, which meant that the court could throw the suit out without prejudicing the minor’s ability to bring suit pro se once he reached adulthood. Unrepresented respondents, by contrast, will not be able to defend their rights down the road, even if their capacities improve.
Indeed, at least two courts have allowed non‐attorney parents to represent their children and have distinguished the Cheung line of cases based on different policy considerations. In Maldonado v. Apfel, for example, the district court distinguished Cheung and allowed non‐attorney parents to appear pro se on behalf of their minor children in Supplemental Security Income (“SSI”) cases.191 The court reasoned: (1) if parental representation were not allowed, children’s statutory rights often would not be vindicated; (2) SSI cases were more amenable to non‐attorney representation because, in cases where an individual was unrepresented before the agency court, the reviewing court was required to conduct a “searching investigation” to determine if “all of the relevant facts were sufficiently developed and considered”; (3) SSI cases were less prone to abuse than those at issue in Cheung; and (4) because families rely on SSI benefits, the claimants had a particular interest in timely resolution of the
1994) (stating that a non‐attorney representative “creates unusual burdens not only for the
party he represents, but also for his adversaries and the court”), cited in Johns, 114 F.3d at 877. 189 Gallo v. United States, 331 F. Supp. 2d 446, 449 n.6 (E.D.Va. 2004). 190 See Cheung, 906 F.2d at 61. 191 See Maldonado v. Apfel, 55 F. Supp. 2d 296, 303 (S.D.N.Y. 1999).
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claims.192 The less formal nature of removal proceedings, which are more like SSI hearings than federal court litigation, is an additional reason why skilled non‐lawyers may be adequate.
There is another line of cases calling my proposed remedy into question: involuntary commitment cases, in which courts have held that “appointment of a guardian ad litem cannot satisfy the constitutional requirement of representative counsel.”193 These cases, however, appear to be specific to the context of involuntary commitment. Because commitment constitutes a unique deprivation of autonomy and liberty, often based on nothing more than an individual’s perceived “best interests,” it makes sense to require an articulate advocate to argue against commitment rather than a guardian who could conceivably look at the situation from the exact same position as the authority seeking to commit the individual. By contrast, in removal proceedings, neither the IJ nor the DHS trial attorney is charged with protecting the respondent’s best interests.
More importantly, the potential loss of autonomy that concerns courts reviewing guardianship representation in commitment proceedings is just as problematic if an immigration respondent has a separate guardian and advocate as if he has a hybrid‐representative, since on the former model the advocate is taking instructions from the guardian rather than from the respondent anyway. Thus these cases say nothing about whether it is necessary or preferable to separate out the advocate and guardian roles. These cases do, however, illustrate one concern that regulators should bear in mind: the importance of clear guidance for guardians as to their roles. In Lessard v. Schmidt, for example, the court seemed particularly troubled by the fact that Lessard’s guardian “d[id] not view his role as that of an adversary counsel” and specifically refused to argue against interim commitment while further evidence was gathered.194 Further troubling to the court was a general study showing that, in Wisconsin civil commitment proceedings, guardians seemed to proceed “almost independent of the will of the client‐ward, to accomplish this.”195 The DOJ should address
192 Id. at 303, 305 n.11 (internal quotation and alteration marks omitted); see also Harris v.
Apfel, 209 F.3d 413, 416‐17 (5th Cir. 2000) (following Maldonado). 193 Lessard v. Schmidt, 349 F. Supp. 1078, 1099 (E.D. Wis. 1972), vacated and remanded on
other grounds, 414 U.S. 473 (1974); see also Suzuki v. Quisenberry, 411 F. Supp 1113, 1129 (D.
Haw. 1976), rev’d in part on other grounds, Suzuki v. Yuen, 617 F.2d 173 (9th Cir. 1980); Lynch v.
Baxley, 386 F. Supp. 378, 389 (M.D. Ala. 1974); Quesnell v. State, 517 P.2d 568, 580 (Wash.
1973). 194 Lessard, 349 F. Supp. at 1097. 195 Id. at 1099 (internal quotation marks omitted); see also Quesnell, 517 P.2d at 575‐77
(voicing concern over the appointed guardians’ passiveness and perfunctory representation);
cf. Lynch, 386 F. Supp. at 389 (holding, in the involuntary commitment context, that an
appointed guardian would be a sufficient protection “if, but only if, the appointed guardian is
a licensed attorney and occupies a truly adversary position”).
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autonomy concerns by providing in its regulations that a client’s expressed wishes should be central, overridden only in extreme cases (such as when a client is resigned to removal but the representative determines that he would be in grave danger if removed).
Whatever form representation takes, funding will be a major issue, both in terms of the scope of the solution and in terms of which decisionmakers could take the initiative. Congress could facilitate a representation program by appropriating funding, or by expressly authorizing the DOJ to spend general funds on the program. As a recent example, in the William Wilberforce Trafficking Victims Protection Reauthorization Act, Congress directed the Department of HHS to protect unaccompanied minors placed in removal proceedings, authorizing it to appoint “child advocates” to promote the child’s best interest and to award grants to voluntary agencies to carry out this project.196 The same could be done for adult respondents with serious mental disabilities. Even without such an action by Congress, however, the DOJ could expend general funds on the program, particularly in light of the statutory command that the Attorney General “prescribe safeguards to protect the rights and privileges of” individuals who cannot be present at their hearing because they are incompetent.197
Whether or not Congress or the DOJ create a system for appointing representation, the DOJ must revise its regulations to clarify that the DHS may not appear “on behalf of” incompetent respondents as their custodian. The current regulation198 indiscriminately allows custodians to appear for incompetent respondents, even though, under the mass‐scale immigration detention scheme that has arisen since the regulations were first promulgated, the custodian most often is a DHS employee or contractor.
196 See William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008,
Pub. L. No. 110‐457, § 235(c)(6), 122 Stat. 5074, 5079 (to be codified at 8 U.S.C. § 1232(c)(6)). 197 See 8 U.S.C. § 1229a(b)(3) (2006). Although Congress’s use of the term “present” is
ambiguous, it would be reasonable (and in fact is constitutionally required) for the DOJ to
read the provision as requiring safeguards where an individual is not fully present mentally.
Based on this statutory requirement, the DOJ could conclude that spending generally
appropriated funds is permissible as “reasonably necessary in carrying out an authorized
function or will contribute materially to the effective accomplishment of the function, and if it
is not otherwise prohibited by law.” See In re Internal Revenue Serv. Fed. Credit Union—
Provision of Automatic Teller Mach., 66 Comp. Gen. 356, 359 (1987) (discussing the federal
agency expenditures statute, 31 U.S.C. § 1301(a)); see also Brief for AIC, supra note 41, at 9‐16. 198 The current regulation allowing custodians to appear “on behalf of” a respondent, 8
C.F.R. § 1240.4 (2010), was taken verbatim from former rule 8 C.F.R § 242.11, which was
referenced as early as 1965. See In re Stoytcheff, 11 I. & N. Dec. 329 (B.I.A. 1965). Prior to the
first mandatory detention provision in 1988, the general practice was not to detain noncitizens
in removal proceedings, and certainly not for more than brief periods, unless they were a risk
to national security. See In re Patel, 15 I. & N. Dec. 666, 666 (B.I.A. 1976); Heeren, supra note 85,
at 610. But see In re Moise, 12 I. & N. Dec. 102 (B.I.A. 1967).
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Despite the anachronism of this language and the obvious conflict of interest it poses, DHS Detention and Removal officials have appeared “on behalf of” incompetent detainees and, in some cases, have been treated as guardians.199 Revising this regulation is one simple, costless way to improve the system.
2. Other Protections
In addition to representation and/or guardianship, other accommodations might be necessary on a case‐by‐case basis. For example, asylum determinations generally hinge on whether an applicant has testified credibly; that is, consistently, persuasively, and in sufficient detail to convince the fact finder that she is describing events from memory.200 A mentally incompetent asylum applicant like Carlos,201 or even a potentially competent but seriously disabled applicant like Nadine,202 may be unable to do so.203 Similarly, applications for cancellation of removal often hinge on an applicant’s ability to testify in a way that demonstrates “good moral character” and remorse for any prior bad acts, which may be impossible for individuals with certain disabilities. (Indeed, in other contexts, severe impairments may disqualify a witness from testifying altogether204 or may be used to impeach her credibility.)205 Where a respondent is seriously impaired, judges must be required to look to other evidence supporting the application and ensure that the applicant is assisted in gathering such evidence. Even where an individual does not express fear of returning to her home country, the court should take steps to develop the record as to whether she might nonetheless be in danger, i.e. because of her mental disability.206 In a number of countries, persons with mental disabilities are
199 See Brief for AIC, supra note 41, at 22‐24; Franco‐Gonzales Complaint, supra note 37, at 5;
Telephone Interview with anonymous government lawyer (Oct. 15, 2010) (notes on file with
author). 200 See supra note 51. 201 See supra text accompanying notes 1‐15. 202 See supra text accompanying notes 17‐18. 203 See Atkins v. Virginia, 536 U.S. 304, 320‐21 (2002) (noting that mentally disabled
individuals are “typically poor witnesses”). 204 See District of Columbia v. Armes, 107 U.S. 519, 521‐22 (1882) (holding that, to testify, a
witness must “be capable of giving a correct account of the matters which [the witness] has
seen or heard in reference to the questions at issue”). 205 Garrett v. State, 105 So. 2d 541, 547 (Ala. 1958); Michael D. Emert, Commentary, Mental
Disorder in Witnesses: An Overview of Competency and Credibility Issues, 41 ALA. L. REV. 167, 172
(1989); see also DEPORTATION BY DEFAULT, supra note 18, at 38 (describing case in which DHS
“used evidence that [a respondent] had a mental disability to prove he was not a credible
witness”). 206 The UN High Commissioner for Refugees, for example, has advocated for a rule that
would protect individuals facing removal if they express fear or the authorities “have reason
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at risk of institutionalization under conditions that could amount to persecution.207
Another potential accommodation, borrowed from the context of removal proceedings involving minors, would be to alter the courtroom environment to reduce the stress that can trigger symptoms of mental illness and inhibit competency. For example, judges could take off their robes, make an effort to speak with less technical language, and generally foster a less formal, less threatening environment.208 Certainly, it would be important for non‐dangerous detainees not to be shackled or otherwise physically restrained, to be allowed to wear non‐prison clothing, and to have emotional supports available in the courtroom (such as family, friends, clergy, or a therapist). Further, hearings could be scheduled during times of day when respondents suffer least from medication side effects.209
Perhaps the most controversial potential accommodation is
to believe” they would be in danger. UNHCR Comments on Interim Rule on Inspection and
Expedited Removal of Aliens; Detention and Removal of Aliens; Conduct of Removal
Proceedings; and Asylum Procedures, July 7, 1997, at 30‐31. 207 See Ex Parte Application for a Temporary Restraining Order at 26, Franco‐Gonzales v.
Holder, No. 10‐CV‐02211 DMG (DTB) (C.D. Cal. Nov. 15, 2010) (“Throughout the Americas,
persons with mental disabilities . . . are often confined against their will and without due
process, and may be left to languish for years, at times for their entire lives, in deplorable
conditions. . . . Some lie in their own waste, are shackled to their beds, waste away in caged
beds, or are tied outdoors with no protection from the elements. Some are deprived of food,
medication, or clothing. Some are beaten. Some are raped.” (quoting JAVIER VASQUEZ, PAN
AM. HEALTH ORG. HUMAN RIGHTS AND HEALTH: PERSONS WITH MENTAL DISABILITIES 2
(2008))); see also Tchoukhrova v. Gonzales, 404 F.3d 1181, 1193‐94 (9th Cir. 2005) (detailing
horrific treatment of disabled children in Russia and finding that this treatment amounted to
persecution), vacated and remanded on other grounds, 549 U.S. 801 (2006); In re Moscoso‐Zuniga,
A 72‐110‐031 (B.I.A. Oct. 5, 2007), available at http://www.lexisnexis.com/practiceareas/
immigration/pdfs/web918b.pdf; Randal C. Archibold, Abuses Found at Mexican Institutions for
Disabled, N.Y. TIMES, Nov. 30, 2010, at A10 (detailing abusive treatment of disabled
individuals in Mexican institutions); Julie Deardorff, Mom Wins Asylum for Son with Autism:
INS Agrees Boy Faced Persecution in Pakistan Because of His Disability, CHI. TRIB., (Feb. 21, 2001),
http://articles.chicagotribune.com/2001‐02‐21/news/0102210260_1_political‐asylum‐cases‐
social‐group‐persecution (reporting grant of asylum to Pakistani applicant based on the risk
that he would be persecuted for his autism). 208 Any steps to lessen the formality of the proceedings would have to be accompanied by
explicit warnings to respondents about the nature of the proceedings. Many mentally disabled
respondents appear not to grasp that removal proceedings can result in physical removal to
their country of nationality, and this problem could worsen were proceedings made less
formal. The DOJ should consult advocates and mental health experts as to how to reduce
stress while ensuring, to the maximum extent possible, that the stakes are clear. 209 Cf. N.Y. CNTY. LAWYERS ASS’N, THE NEW YORK CITY HOUSING COURT IN THE 21ST
CENTURY: CAN IT BETTER ADDRESS THE PROBLEMS BEFORE IT? 35‐36 (2005), available at
http://www.nycla.org/siteFiles/Publications/Publications195_0.pdf (noting that certain
psychiatric medications cause side effects that are worst in the mornings, and recommending
afternoon hearings for individuals on those medications).
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administrative termination where no other possible accommodations will ensure a meaningful hearing. In fact, the new Immigration Judge Benchbook chapter on mental illness suggests that IJs consider termination but acknowledges that, so far, the BIA has not allowed this remedy.210 Explicitly authorizing IJs to terminate cases based on a respondent’s incompetence would reduce the risk of wrongful removals. Perhaps of equal importance, such authority would afford IJs some leverage over the DHS. Without this leverage, it is extremely difficult for IJs to persuade the DHS attorneys to produce medical evidence bearing on competency or to facilitate evaluation.211 The threat of termination or closure would also motivate the DHS to provide better mental health treatment so as to restore competency wherever possible.212
CONCLUSION
Every day, immigration judges face unrepresented respondents who present signs of severe mental impairment and possible incompetence. They are given no resources or guidance on how to address the situation. Every day, noncitizens are ordered removed from the United States without due process even though, if their stories were actually heard, they might find asylum here or other forms of relief. In recent years, advocates have increasingly focused on this problem, and government officials have begun to acknowledge its severity. This Article is intended to advance the discussion, and provide both theoretical and practical guidance to the decisionmakers who must address the problem. It departs from the perspective of many advocates by suggesting a scaled‐back solution that would require significantly less funding than other proposals but would
210 See source cited supra note 34 and accompanying text. 211 DEPORTATION BY DEFAULT, supra note 18, at 48 (quoting one IJ as explaining that “[w]hen
a judge suspects that there is a mental disability, there are problems with enforcing
cooperation from DHS because judges have no contempt authority or tools to use to make ICE
cooperate in getting documents to get external corroboration that there is an illness”). 212 The dismal current state of mental health services in immigration detention is well‐
documented. See FLA. IMMIGRANT ADVOCACY CTR., DYING FOR DECENT CARE: BAD MEDICINE
IN IMMIGRATION CUSTODY 33 (2009), available at http://www.fiacfla.org/reports/Dying
ForDecentCare.pdf (“One e‐mail from Dennis Slate, the detention system’s top mental‐health
official, noted that, while the ratio of mentally ill inmates to staff was 1 to 10 in prisons for the
mentally ill and 1 to 400 in the federal Bureau of Prisons, the ratio was 1 to 1,142 in
immigration detention–a mind‐boggling disparity.”); Ramshaw, supra note 41 (noting findings
by Texas Appleseed that “detention facilities donʹt consistently follow mental‐health
standards, and often donʹt have enough mental‐health workers to handle the estimated 15
percent of detainees suffering from mental illness[] [and that] [u]ntil early [2009], . . . two
Texas detention centers housing a combined 2,700 people shared a single psychiatrist.” As a
result, detainees with mental health needs “miss medicine doses, get misdiagnosed or are
prescribed drugs with which they arenʹt familiar”).
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nonetheless afford skilled representation to the most vulnerable population in the removal system. I hope that policymakers will respond with similar pragmatism, and that after nearly sixty years of paralysis, we can at least begin to fulfill the promise of due process in this long‐neglected corner of our removal system.