Question: My brother is in deportation proceedings, but he has mental competency issues. Will he be deported?

Answer: Until recently, attorneys and immigration judges had limited guidance about safeguards that

might be available to ensure a fair hearing in immigration court for noncitizens with mental

competency issues. As a result, many such individuals have been ordered deported without

access to counsel or any assessment of their abilities. Others have languished in jail indefinitely

while immigration judges delayed proceedings in the hope that they would find representation or

that their conditions would improve. Extended stays in detention centers, however, have instead

caused people’s conditions to deteriorate, at times resulting in psychosis and catatonia. The lack

of protections has even led to mistaken deportations of U.S. citizens who were unable to prove

their nationalities without assistance.

In May 2011, the Board of Immigration Appeals (BIA) issued a precedent decision setting forth

a framework for immigration judges to follow when hearing cases involving respondents with

mental competency issues. The case is known as Matter of M-A-M.

Question: What statutory protections apply to respondents who lack mental competency?

Answer: Under the Immigration and Nationality Act (INA), the Attorney General “shall prescribe

safeguards to protect the rights and privileges” of respondents for whom it is “impracticable” to

be present at removal proceedings by reason of mental incompetency. Some courts have construed this provision to protect incompetent respondents able to make a physical appearance, but unable to meaningfully participate without representation. Because competency issues may stem from both physical and psychological conditions, which give rise to a broad spectrum of capabilities and needs, the procedural safeguards will differ from case to case.

Question: What protections are persons with mentally incompetency issues given?

Answer: Of the extensive regulations that govern the conduct of removal proceedings, only a handful

address the subject of mental competency. Service of a Notice to Appear upon the person with whom a mentally incompetent respondent providing that an attorney, legal representative, legal guardian, near

relative, or friend may “appear on behalf of” a respondent whose mental incompetency makes it

“impracticable” for him or her to “be present” at a hearing; permitting an immigration judge to waive the presence of a mentally incompetent respondent who is represented by an individual from one of the preceding categories); prohibiting an immigration judge from accepting an admission of removability from an incompetent respondent unless accompanied by an attorney, legal representative, near relative,

legal guardian, or friend, and requiring a “hearing on the issues”. In each case, the regulations

require immigration judges to determine whether a respondent is “incompetent” — without

defining that term — but do not provide any meaningful guidance either for determining

competency for particular purposes or for guaranteeing due process for a respondent who lacks

competency to proceed. That is why the new case from the BIA came out in order to clarify and make law on this issue so it is not as ambiguous.

Question: OK. What exactly does the new case rule on this matter?

Answer: In its precedential decision, Matter of M-A-M-, the Board of Immigration Appeals, for the first time, set forth a test for immigration judges to assess a respondent’s ability to participate in a removal hearing. According to M-A-M-, the decisive factors are whether the respondent understands the nature and object of the proceedings, can consult with the attorney or representative (if there is one), and has a reasonable opportunity to examine adverse evidence, present favorable evidence, and cross-examine government witnesses.

Noting that a respondent is presumed to be competent, the Board explained that an immigration

judge need not apply the M-A-M- test in the absence of any “indicia of mental incompetency.”

However, such indicia may derive from observations of the respondent’s functioning

and behavior by the immigration judge or either party, testimonial evidence, or documentation

submitted as part of the record. Potential indicators of serious mental disorders, which may give rise to competency issues, include difficulty communicating thoughts completely or coherently, perseveration, overly simplistic or concrete thinking, words or actions that do not make sense or suggest that the person is experiencing hallucinations or an altered version of reality, memory impairment, disorientation, an altered level of consciousness or wakefulness, or a high level of distraction, inattention or confusion.

Some respondents who cannot represent themselves in removal proceedings due to competency issues may still have the ability to consent to representation, to assist in their defense, or to stand trial. A mental health diagnosis or diagnosis of developmental disability or has been previously

labeled “incompetent” does not mean that he or she is currently incompetent. Because mental

competency may vary over time, the BIA instructed immigration judges to consider “indicia of

incompetency” throughout the duration of removal proceedings.

Question: If the Judge finds that the person in removal proceedings has some elements of being incompetent, what must the Judge do?

Answer: When indicia of incompetency are present, an immigration judge must determine whether a

respondent is sufficiently competent to proceed without safeguards.Even if a respondent has been pronounced mentally competent, procedural safeguards may be necessary to ensure a fair hearing in immigration court if, for example, a respondent has a significant history of mental illness, is experiencing an acute aggravation of mental illness, or if the respondent’s condition has changed significantly since competency was determined. By the same token, certain mental impairments would not necessarily preclude meaningful participation in immigration proceedings without safeguards.

The BIA emphasized that measures needed to assess competency will vary from case to case.

For example, an immigration judge could ask the respondent basic questions to assess his or her

ability to understand the nature and object of the proceedings, grant a continuance to enable the

parties to collect relevant documentary evidence, solicit testimony from family or close friends,

or order a mental competency evaluation. When the assessment has been completed, the immigration judge must articulate his or her reasoning and decision regarding the respondent’s competency on the record.

Of course, the Immigration Judge is neither a psychologist or a psychiatrist and is not trained in whether a person has a mental illness. This is why it would definitely be advisable to bring in one of these professionals as an expert witness and to submit reports of the mental condition on behalf of a detailed analysis made on behalf of the respondent.

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