1. MENTAL COMPETENCY IN IMMIGRATION COURT PROCEEDINGS
American Immigration Lawyers Association, Texas Chapter
April 24-26, 2014
JANET B. BECK, Clinical Assistant Professor, University of Houston Law Center
MICHELLE SAENZ-RODRIGUEZ, Saenz-Rodriguez & Associates, PLC, Dallas, Texas
Janet B. Beck, Michelle Saenz-Rodriguez, AILA Texas chapter, April 2014

2. Matter of m-a-m 25 I&N Dec. 474 (BIA 2011)
Where there are indicia of mental incompetency, the Immigration Judge must make a finding of competency or incompetency
Competency is fluid and must be evaluated throughout the immigration proceedings
If the Immigration Judge finds that Respondent is mentally incompetent OR competent but mentally ill, s/he must provide procedural safeguards such as:
Advising R that family, friends or a guardian could represent him if he cannot find an attorney
That the attorney would be paid for by Respondent
PROBLEM: Most IJ’s consider that if R has an attorney, no other procedural safeguards are necessary
Janet B. Beck, Michelle Saenz-Rodriguez, AILA Texas chapter, April 2014

3. Indicia of incompetency
IJ observations of Respondent’s functioning and behavior
Testimonial evidence
Documentation e.g. medical records or finding of insanity in criminal case
Difficulty communicating thoughts completely or coherently
Perseveration
Overly simplistic or concrete thinking
Words or actions that do not make sense
Hallucinations or altered version of reality
Memory impairment
Disorientation
Altered level of consciousness or wakefulness
High level of distraction, inattention or confusion
Janet B. Beck, Michelle Saenz-Rodriguez, AILA Texas chapter, April 2014

4. Competency test in m-a-m
Whether Respondent:
Understands the nature and object of proceedings
Can consult with his attorney or representative (if there is one)
Has a reasonable opportunity to examine and present evidence, and cross-examine witnesses
Board cited Matter of Sinclitico, 15 I&N Dec. 320 (BIA 1975): R is incompetent to voluntarily surrender his U.S. citizenship based on his apparent inability to understand questions, medical evidence of schizophrenia and testimony from his brother regarding his mental illness
Janet B. Beck, Michelle Saenz-Rodriguez, AILA Texas chapter, April 2014

5. M-a-m procedural safeguards
IMMIGRATION JUDGE CAN:
Ask Respondent basic questions to assess his ability to understand the nature and object of the proceedings
Grant a continuance to enable parties to collect relevant documentary evidence or so that R can obtain an attorney or medical treatment
Solicit testimony from family or close friends
Order a mental competency evaluation
Close hearing to the public
Waive Respondent’s appearance
Assist with development of the record including examination and cross-examination of witnesses
Reserve right to appeal for Respondent
Change venue to enable R to be closer to family or treatment programs
Janet B. Beck, Michelle Saenz-Rodriguez, AILA Texas chapter, April 2014

6. M-A-M: IJ finding and administrative closure
IJ must articulate his reasoning and decision regarding R’s competency on the record
Where no procedural safeguard would ensure a fair hearing, IJ may administrative close the case even if one of the parties opposes this course of action. Matter of Avetisyan, 25 I&N Dec. 288 (BIA 2012)
Note: Some IJ’s have terminated proceedings See Immigration Judge Benchbook
Janet B. Beck, Michelle Saenz-Rodriguez, AILA Texas chapter, April 2014

7. M-A-M applies to detained and non-detained respondents
The new Phase I Guidelines for Immigration Judges apply ONLY to DETAINED, PRO SE Respondents.
M-A-M is a Board decision. Phase I are EOIR guidelines.
M-A-M applies to all respondents where there are indicia of incompetency.
Procedural safeguards also must be provided when respondents are suffering from a mental illness. Matter of M-A-M, 25 I&N Dec. 474 , (BIA 2011)
However, the way to gauge mental competency should be applied by IJ’s in the non-detained setting as set out in Phase I.
Janet B. Beck, Michelle Saenz-Rodriguez, AILA Texas chapter, April 2014

8. M-a-m: MENTALLY COMPETENT BUT NEED SAFEGUARDS
“Even if an alien has been deemed to be medically competent, there may be cases in which an Immigration Judge has good cause for concern about the ability to proceed, such as
Where the respondent has a long history of mental illness
Has an acute illness
Was restored to competency but there is reason to believe that the condition has changed.
In such cases Immigration Judges should apply appropriate safeguards.” Matter of M-A-M, 25 I&N Dec. 474, 480 (BIA 2011)
Janet B. Beck, Michelle Saenz-Rodriguez, AILA Texas chapter, April 2014

9. PHASE I GUIDELINES TEST
A Respondent is presumed competent to represent him/herself in removal OR bond proceedings if s/he has a:
Rational and factual understanding of:
The nature and object of the proceeding
The privilege of representation
The right to present, examine and object to evidence
The right to cross-examine witnesses and
The right to appeal AND
Reasonable ability to: (Note: This might change to “sufficient present ability”)
Make decisions about asserting and waiving rights
Respond to the allegations and charges in the proceeding AND
Present information and respond to questions relevant to eligibility for relief
Janet B. Beck, Michelle Saenz-Rodriguez, AILA Texas chapter, April 2014

10. Phase I: indicia of incompetency
Include, but are not limited to:
Outpatient mental health treatment
Psychiatric hospitalization
Interventions for self-injurious behavior or suicide attempts
Limited academic achievement
Currently receiving mental health treatment
Janet B. Beck, Michelle Saenz-Rodriguez, AILA Texas chapter, April 2014

11. OTHER PHASE I INDICATORS
Poor memory
Poor attention/concentration
Confused or disorganized thinking
Paranoid thinking
Grandiose thinking
Seeing or hearing things not present
Serious depression or anxiety
Poor intellectual functioning
Irrational behavior or speech in court
Lack of responsiveness in court
Janet B. Beck, Michelle Saenz-Rodriguez, AILA Texas chapter, April 2014

12. Sources and form of indicia
Can come from, but are not limited to, any reliable source (people):
Family members or friends
Legal service providers
Health care or social service providers
Caseworkers
Clergy
Detention personnel OR
Janet B. Beck, Michelle Saenz-Rodriguez, AILA Texas chapter, April 2014

13. Phase I - ROLE OF DHS
When R is detained, DHS may be given information relevant to R’s cognitive, emotional and behavioral functioning
DHS must give this information to the IJ. Matter of M-A-M, 25 I&N Dec. 474, 480 citing 8 CFR sec (a)
DHS has the obligation to give the IJ any information relevant to the pleadings Matter of S-M-J, 21 I&N Dec. 722, (BIA 1997), disapproved of on other grounds, Ladha v. INS, 215 F.3d 889 (9th Cir. 2000)
The IJ cannot take pleadings from an incompetent respondent 8 C.F.R. sec (c)
Janet B. Beck, Michelle Saenz-Rodriguez, AILA Texas chapter, April 2014

14. Dhs ROLE CONTINUED
Where indicia of Respondent’s competency are manifest, DHS should serve the NTA on 3 individuals:
A person with whom the respondent resides, who, when the respondent is detained in a penal or mental institution, will be someone in a position of demonstrated authority in the institution or his or her delegate and when the respondent is not detained, will be a responsible party in the household, if available;
Whenever applicable or possible, a relative, guardian, or person similarly close to the respondent and
In most cases, the respondent, Matter of E-S-I, 26 I&N Dec. 136 (BIA 2013)
Janet B. Beck, Michelle Saenz-Rodriguez, AILA Texas chapter, April 2014

15. Outcomes of Judicial Inquiry:
Phase I procedure
JUDICIAL INQUIRY
If there is substantial evidence of incompetence, the IJ should conduct a judicial inquiry
IJ asks Respondent questions to determine competency See Appendix A of Phase I guidelines. IJ should note verbal responses and non-verbal behavior.
Outcomes of Judicial Inquiry:
Respondent is competent
Respondent is incompetent
There is insufficient evidence to determine competency
Janet B. Beck, Michelle Saenz-Rodriguez, AILA Texas chapter, April 2014

16. Competency review
At conclusion of Judicial Inquiry, the IJ has “reasonable cause” to believe that Respondent is suffering from a mental disorder but needs additional evidence, IJ will schedule a Competency Review
Before the Competency Review, the IJ will consider whether Respondent needs a mental health evaluation.
The IJ is not required to refer to a psychiatrist or psychologist but s/he must consider whether a referral is necessary. See Phase I Appendix B for referral form
Janet B. Beck, Michelle Saenz-Rodriguez, AILA Texas chapter, April 2014

17. Mental health evaluation
QUALIFICATIONS OF EVALUATORS:
Specialty training in psychiatry, clinical psychology or counseling psychology, have completed EOIR training, be able to document successful completion of a minimum of 100 hours of approved continuing education in conducting forensic examinations
Have experience conducting competence examinations
Evaluators were trained in Houston in the first quarter of 2014
NOTE: The evaluation has immunity protection and cannot be used against the Respondent e.g. as related to the allegations or charge of deportability or ineligibility for relief
NOTE: The evaluator may be examined by the court or either party
INTERPRETER: If an interpreter is needed, the Language Services Unit of the Office of Chief Immigration Judge will make arrangements
Janet B. Beck, Michelle Saenz-Rodriguez, AILA Texas chapter, April 2014

18. Respondent is not represented at this hearing
COMPETENCY HEARING
The IJ will consider the totality of the evidence and decide whether to appoint a Qualified Legal Representative
PROBLEMS:
Respondent is not represented at this hearing
The psychiatrist/psychologist is not present at this hearing (although it would seem that the IJ could call the mh evaluator if s/he had questions)
What if the mh evaluator determines Respondent is competent but is mentally ill? Phase I does not address mentally ill individuals who are competent. However, M-A-M does
Janet B. Beck, Michelle Saenz-Rodriguez, AILA Texas chapter, April 2014

19. Appointment of qualified legal representative (QLR)
The IJ will consider the totality of the evidence and decide whether Respondent is mentally competent.
If the IJ finds a detained pro se respondent to be mentally incompetent, he will appoint a QLR. The respondent does not have the right to waive the QLR.
There are very few trained and designated QLR’s in the field.
The QLR’s in Houston are the attorneys at YMCA International Refugee Services.
Janet B. Beck, Michelle Saenz-Rodriguez, AILA Texas chapter, April 2014

20. Procedural safeguards with qlr
In order to decide whether a QLR is an appropriate safeguard, the IJ will review the mental health evaluator’s assessment as to whether R can consult with and assist counsel.
Janet B. Beck, Michelle Saenz-Rodriguez, AILA Texas chapter, April 2014

21. COMPETENCY AND ASYLUM RELIEF
The fact that an individual has been found to be incompetent may be part of the basis for a Particular Social Group.
If there is a pattern or practice of persecution of those similarly situated, then a grant of asylum is possible based on a well-founded fear of future persecution
E.g. in the home country, the Government or groups that the government is unwilling or unable to control may persecute mentally ill people by putting them in jail or in prayer camps, if medications and psychiatric treatment are not available, the individual will become psychotic and thus be socially visible.
Humanitarian asylum may be an avenue of relief
Janet B. Beck, Michelle Saenz-Rodriguez, AILA Texas chapter, April 2014

22. FRANCO-GONZALEZ V. HOLDER, No.10-02211 (C.D. Cal Apr. 23, 2013)
Leading case on mental competency issues for detained non-represented immigrants with severe mental disabilities in Arizona, California and Washington.
Court Held:
Certain detainees must be provided with “Qualified Representatives” at Government Expense in removal and in bond proceedings.
Government must provide a bond redetermination hearing for those detained more than 180 days
M-A-M fails to provide sufficient safeguards-IJ discretion
PROBLEMS:
If someone bonds out, s/he may no longer be part of the class?
Janet B. Beck, Michelle Saenz-Rodriguez, AILA Texas chapter, April 2014

23. COMPETENCY AND CANCELLATION OF REMOVAL
Evidence
Testimony
Medical Records
To establish presence and hardship
Affidavits
Family members and friends to assist with rehabilitation-equities,etc
Remind Court of respondent’s inability to recall facts and details due to mental health status
Try to stipulate when possible to avoid exposure for the respondent
Use an expert when feasible
Janet B. Beck, Michelle Saenz-Rodriguez, AILA Texas chapter, April 2014

24. Other potential Court Strategies
Administrative Closure
Termination of Proceedings
Prosecutorial Discretion
Janet B. Beck, Michelle Saenz-Rodriguez, AILA Texas chapter, April 2014

25. Administrative Closure
Reactive Mental Illness vs. Endogenous?
Treatment options- short term or long term?
Type of mental incapacity- temporary or permanent?
Janet B. Beck, Michelle Saenz-Rodriguez, AILA Texas chapter, April 2014

26. Termination of Proceedings
When to Request:
Legal Authority:
There are no appropriate safeguards available to the respondent
Respondent cannot assist in the preparation of his defense
Due Process issues
Best interests of the respondent – ABA Model Rule 1.14
IJ’s have the authority to act in a manner consistent with the INA and should be flexible where there are mental health concerns- 8 C.F.R
Where the respondents are unable to proceed in light of mental health issue and a corresponding inability to secure adequate safeguards exists…IJ may consider termination. Immigration Judge’s Benchbook , Mental health Issues at 14
Due Process Concerns, Mathews v Eldridge, 424 U.S.319 (1976)
Janet B. Beck, Michelle Saenz-Rodriguez, AILA Texas chapter, April 2014

27. Prosecutorial Discretion
Negotiation directly with the ICE Attorney instead of the IJ
Can be used when no legal remedy available to cure removability
Prepare a request with evidence of humanitarian factors present in the case
Offer a creative solution that provides an element of both safety for the community and protection for the respondent
Joint request for exercise of prosecutorial discretion alleviates the IJ from having to take full responsibility for termination or admin closure
Janet B. Beck, Michelle Saenz-Rodriguez, AILA Texas chapter, April 2014

28. Lawyer Considerations
Do I really want to take one of these cases?
Communicating with your client may be challenging –you must be patient and tenacious!
Relief is often limited in these cases, but any and all options should be articulated and preserved for the possible appellate record!
While these cases can be difficult, they are also rewarding. There is a growing population of detained aliens with mental competency issues that DESPERATELY need representation!
Good Advocates are needed to educate the immigration courts regarding safeguards and due process issues!
Janet B. Beck, Michelle Saenz-Rodriguez, AILA Texas chapter, April 2014

29. Resources
Legal Action Center and the University of Houston Law Center Immigration Clinic, Practice Advisory, “Representing Clients with Mental Competency Issues under Matter of M-A-M (Nov. 2011) : ceadvisories/representing-clients- mental-competency-issues
EOIR, Immigration Judge Benchbook, Mental Health Issues :
EOIR , “Phase I of the Plan to provide Enhanced Procedural Protections to Unrepresented Detained Respondents with Mental Disorders” (Dec. 31, 2013)
Resources regarding Motions to Terminate: ghouse/litigation-issue- pages/immigrants-mental-disabilities- removal-proceedings
Disability Rights International:
The National Alliance for the Mentally Ill- Advocacy around issues of mental illness-
CAIR Coalition Pro Bono Health Manual, 2d edition, January 2013 : content/files/CAIR-Coalition-Practice- Manual-2013.pdf
Janet B. Beck, Michelle Saenz-Rodriguez, AILA Texas chapter, April 2014