Mental Health Issues
Part I: Overview and Comparisons of Mental Health IssuesA.Overview
In a recent Immigration Law Advisor article, Immigration Judge Mimi Tsankov observes that one of the great challenges facing immigration courts today involves respondents who are incompetent. Notwithstanding that the Immigration and Nationality Act contemplates safeguards to protect the rights and privileges of aliens with mental health issues, Immigration Judges must largely operate in the absence of regulatory guidance. As Judge Tsankov states: “Immigration Judges are challenged to provide fundamental fairness to individuals who may not be able to represent themselves effectively and cannot obtain representation. Immigration Judges do so within a limited regulatory framework and with sparse precedent case law.” Mimi E. Tsankov, Incompetent Respondents in Removal Proceedings, Immigration Law Advisor 1 (Apr. 2009), available at http://www.justice.gov/eoir/vll/ILA-Newsleter/ILA%202009/vol3no4.pdf. This Benchbook section is intended to inform the Immigration Judge’s decision-making process in this context by highlighting relevant authority and persuasive references, by suggesting best practices, and by offering links to external reference tools.
The first part of this Benchbook section provides Immigration Judges with an overview of mental health issues related to immigration court proceedings, including an introduction to and comparison with this issue in the criminal and civil contexts. The second part provides Judges with guidance on identifying mental health issues and offers suggestions to handle and address them. The third part provides Judges with suggested language and templates to employ in the adjudication of such cases. The fourth and final part provides Judges with a subject-specific library comprised of both locally-hosted documents and links to external resources.
B. The History of the Law
The 1952 Act directed the Attorney General to prescribe safeguards necessary and proper to protect the rights and privileges of respondents faced with mental health issues. See Immigration and Nationality Act, Pub. L. No. 82-414, § 242(b), 66 Stat. 162, 208 (1952). As the accompanying history details, the Attorney General first promulgated such regulations in 1957. See 22 Fed. Reg. 9,765, 9,797 (Dec. 6, 1957). Those regulations remained unchanged until 1997, see 62 Fed. Reg. 10,312, 10,368, 10,369 (Mar. 6, 1997), when the regulations were amended following the enactment of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), which worked fundamental changes to United States immigration law. The newly enacted provision, IIRIRA § 304(a)(3), again directed the Attorney General to prescribe safeguards to protect the rights and privileges of aliens with mental health issues. See Pub. L. No. 104-208, Div. C, Title III, § 304(a)(3), 110 Stat. 3009, 3009-590 (Sept. 30, 1996). The 1997 regulatory amendments brought the regulations into conformity with IIRIRA’s new terminology, e.g., replacing “order to show cause” with “notice to appear,” replacing “special inquiry officer” with “immigration judge,” and replacing “deportability” with “removability,” but did not prescribe any new safeguards in response to section § 304(a)(3) of IIRIRA.
C. A Comparative Overview of Mental Health Issues in Immigration Law and Criminal and Civil Law
1. Mental Health Issues in the Immigration Law Context
Section 240(b)(3) of the Immigration and Nationality Act, 8 U.S.C. § 1229a(b)(3), provides that:
If it is impracticable by reason of an alien’s mental incompetency for the alien to be present at the proceeding, the Attorney General shall prescribe safeguards to protect the rights and privileges of the alien.
Pub. L. No. 104-208, Div. C, Title III, § 304(a)(3), 110 Stat. 3009-589 (Sept. 30, 1996). Section1240.4, 8 C.F.R., provides that:
When it is impracticable for the respondent to be present at the hearing because of mental incompetency, the attorney, legal representative, legal guardian, near relative, or friend who was served with a copy of the notice to appear shall be permitted to appear on behalf of the respondent. If such a person cannot reasonably be found or fails or refuses to appear, the custodian of the respondent shall be requested to appear on behalf of the respondent.
And section 1240.10(c) provides, in part, that:
The immigration judge shall not accept an admission of removability from an unrepresented respondent who is incompetent or under the age of 18 and is not accompanied by an attorney or legal representative, a near relative, legal guardian, or friend; nor from an officer of an institution in which a respondent is an inmate or patient. When, pursuant to this paragraph, the immigration judge does not accept an admission of removability, he or she shall direct a hearing on the issues.
68 Fed. Reg. 9,824 (Feb. 28, 2003). As previously noted, the regulations have remained largely intact since their initial promulgation in 1957. The above-cited regulations appear as amended following the 1996 enactment of IIRIRA and the 2002 enactment of the Homeland Security Act, Pub. L. No. 107-296, 116 Stat. 2135 (Nov. 25, 2002).
Considering proceedings conducted under 8 C.F.R. § 1240.4’s predecessor, 8 C.F.R. § 242.11 (1976), in Nee Hao Wong v. INS, 550 F.2d 521 (9th Cir. 1977), the Court of Appeals for the Ninth Circuit held that due process does not require that deportation proceedings be postponed until an alien is competent to participate intelligently in the proceedings. Specifically, in a case where the “petitioner was present and was accompanied by his state court appointed conservator, who testified fully on his behalf, and by his counsel,” the panel found that:
The Immigration and Naturalization Act contemplates that deportation proceedings may be had against mental incompetents. Indeed, under certain circumstances (not present here) mental problems constitute a ground for exclusion, 8 U.S.C. § 1182(a)(2), (3), and (4) (1970), and for deportation, 8 U.S.C. § 1251(a)(3) (1970). Section 242(b) of the Act, 8 U.S.C. § 1252(b) (1970), provides that an alien who is mentally incompetent shall have his rights and privileges protected through prescribed “necessary and proper safeguards.”
Id. at 523. The panel further concluded that the Nee Hao Wong’s “lack of competency did not prejudice him,” finding that,
On the contrary, it served to make out his case for him, and the immigration judge found that deportation would indeed constitute a hardship. Petitioner’s contention that he should have been granted a continuance of the hearing until he had regained competency presents a paradox reminiscent of “Catch 22.” His condition of incompetence established hardship. If the hearing were to be postponed until competence was regained, the ground on which suspension was sought would then no longer exist. We cannot agree that it was procedurally unfair to conduct the hearing at a time when the fact of hardship was self-evident rather than to wait until such time as it could no longer be asserted.
Id.
The petitioner in Nee Hao Wong was represented by counsel. Similarly, much of the case law evaluating the due process claims of aliens with mental health issues has involved those who were represented by counsel in proceedings. See, e.g., Munoz-Monsalve v. Mukasey, 551 F.3d 1 (1st Cir. 2008) (holding that the Immigration Judge’s failure to sua sponte order a competency evaluation of a represented alien did not violate the alien’s due process rights as it is the advocate’s role, not the Immigration Judge’s, to broach the issue of mental competence as the alien’s incompetence was not evident from the record of the hearing); Brue v. Gonzales, 464 F.3d 1227 (10th Cir. 2006) (holding that the Immigration Judge had no obligation under either the statute or the regulation to consider the represented alien’s mental competency because the procedural safeguards they envision were already in place); Sanchez-Salvador v. INS, 33 F.3d 59, 1994 WL 441755, at *1 (9th Cir. Aug. 15, 1994) (unpublished table decision) (“Lack of competency, however, does not prevent a judge from determining either deportability or whether to grant relief. As we held in Nee Hao Wong v. INS, . . . an alien can obtain a full and fair hearing despite being incompetent. This was the case here. Sanchez-Salvador's incompetence did not prevent him from presenting, through counsel, a strong case that relief is warranted.”); Matter of James, A040 015 111, 2009 WL 2171712 (BIA June 26, 2009) (unpublished) (“In this instance, . . . the respondent’s counsel failed to request that an evaluation of the respondent's competency be undertaken. The failure to raise the competency issue in a timely manner renders an ensuing appellate claim of error on this basis particularly weak. . . . Moreover, contrary to the substantive due process protection from trial and conviction to which a mentally incompetent criminal defendant is entitled, removal proceedings may go forward against incompetent aliens.”); Matter of Vidal Sanchez, A037 616 891, 2006 WL 2008263 (BIA May 24, 2006) (unpublished) (“The respondent was represented at the hearing; therefore, his rights were adequately protected.”); Matter of H-, 6 I&N Dec. 358 (BIA 1954) (holding that the requirements of a fair hearing had not been violated in deportation proceedings involving an alien of unsound mind, where notice of hearing has been served on the alien and his wife, arrangements were made to protect alien’s interests by having a doctor in attendance at the hearing, and alien was represented by legal counsel who was given the privilege of introducing evidence and cross-examining witnesses). An alternative line of case law has found that respondents did not sufficiently prove that any safeguards were indicated. See, e.g., Nikolov v. Gonzales, 204 Fed. Appx. 80 (2d Cir. 2006) (unpublished); Nelson v. INS, 232 F.3d 258, 261-62 (1st Cir. 2000).
The crucial question appears to be whether safeguards, i.e., representation in the form of counsel and/or a guardian ad litem, are necessary to ensure a fundamentally fair proceeding. The Sixth Circuit has held that “[t]he only time a competency hearing may be required in the immigration context is to determine whether an unrepresented alien shows sufficient evidence of incompetency to require an attorney or guardian to represent the alien’s interests at the proceedings.” Jaadan v. Gonzales, 211 Fed. Appx. 422, 430 (6th Cir. 2006) (unpublished). Accord Mohamed v. TeBrake, 371 F. Supp. 2d 1043, 1046 (D. Minn. 2005) (cited in United States v. Mandycz, 447 F.3d 951, 962 (6th Cir. 2006)) (holding that an unrepresented alien had a regulatory and possibly a due-process right to a competency hearing to determine whether representative should be appointed under 8 C.F.R § 1240.4, which provides that an attorney or other representative should be appointed “[w]hen it is impracticable for the respondent to be present at the hearing because of mental incompetency,” but noting that “the law specifically contemplates that removal proceedings may go forward against incompetent aliens and that incompetent aliens may be deported”). Based on a threshold inquiry into the sufficiency of evidence of mental competency, the Eighth Circuit has held that [t]he lack of a competency hearing was not an abuse of discretion and did not violate Mohamed's right to procedural due process” where a pro se respondent “answered the charges against him, testified in support of his claim for withholding of removal, and arranged for two witnesses to appear on his behalf.” Mohamed v. Gonzales, 477 F.3d 522, 527 (8th Cir. 2007). See also Matter of Smikle, A041 361 229, 2007 WL 2463933 (BIA Aug. 6, 2007) (unpublished) (finding that “the respondent ha[d] presented no evidence in support of his claim that he [wa]s mentally incompetent”); Matter of O-, A045 080 822, 2007 WL 4707468 (BIA Nov. 16, 2007) (unpublished) (finding that, “[w]hile a formal competency hearing was not held by the Immigration Judge, he did provide a thorough discussion of the psychiatric examinations and treatment records with a subsequent finding of fact that the respondent did not suffer with any significant symptoms of a psychiatric disorder when compliant with her medication”). Similarly, the First Circuit has indicated that Immigration Judges might conduct a threshold inquiry prior to requesting a custodian or other party to appear on an alien’s behalf. See Nelson, 232 F.3d at 262 (“Regulation 240.4 is not applicable to this case, simply because Nelson’s health-related complaints do not rise to the level of mental incompetence contemplated by Regulation 240.4.”).
As Immigration Judge Tsankov observed,
the Board has yet to hold that a respondent’s due process rights have been violated because of incompetency during removal proceedings. The Board has reached its conclusions in two manners: (1) by finding that a given respondent, who often times has appeared pro se, has failed to demonstrate incompetence through testimonial and documentary evidence; and (2) by finding that despite proffering such evidence, a respondent who was represented was nevertheless able to understand the nature of the proceedings and the charges against him.
For respondents who are adjudged by an Immigration Judge to be incompetent and who are unrepresented by an attorney or other prescribed representative, there are no cases that consider how to conduct proceedings so that the safeguards of 8 C.F.R. § 1240.4 are met.
Mimi E. Tsankov, Incompetent Respondents in Removal Proceedings, Immigration Law Advisor 2 (Apr. 2009), available at http://www.justice.gov/eoir/vll/ILA-Newsleter/ILA%202009/vol3no4.pdf. Accordingly, these being open questions, the next two sections will examine the much more developed criminal and civil law. To be clear, defendants in criminal proceedings are entitled to greater constitutional protections than respondents in removal proceedings. The survey below of competency issues in other legal contexts is meant to inform the Immigration Judges' legal understanding of mental competency; it is not intended to suggest that the constitutional protections extended to criminal defendants are applicable to aliens in removal proceedings.