It is already hard enough for an immigration lawyer to represent a foreign national client in an immigration proceeding, given the language and other cultural barriers, along with the fact that immigration law can be extremely complex and unforgiving.
On top of this, an immigration lawyer who represents a foreign national client with mental competency issues faces even greater challenges, including ethical conundrums.
To what extent can a lawyer represent a client who may not even have the capacity to consent or to comprehend the fact that there is a lawyer who can assist him or her? This client may be discovered in immigration custody while in the middle of complex removal proceedings.
The lawyer may also encounter a client with mental competency issues who may need to file for immigration benefits such as adjustment of status or naturalization. This issue has gained even more importance in light of the mandatory appointment of counsel for unrepresented respondents in immigration custody who have mental disorders.
While clients with diminished mental capacity also include children, this article focuses on the challenges that lawyers face in representing clients with mental disorders. The first breakthrough with respect to the development of safeguards came about in Matter of M-A-M-, 25 I&N Dec. 474 (BIA 2011), where the Board of Immigration Appeals held that for an alien to be competent to participate in an immigration proceeding, he or she must have a rational and factual understanding of the nature and object of the proceeding and a reasonable opportunity to exercise the core rights and privileges afforded by the law.
The decisive factors are whether the respondent understands the nature and object of the proceedings, can consult with the attorney or representative, and has a reasonable opportunity to examine adverse evidence, present favorable evidence and cross examine government witnesses. Further guidance relating to Matter of M-A-M- can be found in the excellent practice advisory of the Litigation Action Center.
Subsequently, in Franco-Gonzales v. Holder, No. 10-02211 (C.D. Cal Apr. 23, 2013), a class action law suit, the court ordered that non-citizen detainees with severe mental disabilities in Arizona, California and Washington be provided qualified legal representatives at government expense in removal and bond proceedings. The court also ordered bond redetermination hearings for those detained more than 180 days.
The EOIR on December 13, 2013 issued guidelines to provide enhanced procedural protection to unrepresented detained respondents with mental disorders.
These guidelines are more robust than the principles set forth in Matter of M-AM-, and require an assessment of eight competencies in order to determine whether the respondent is competent to represent him- or herself:
A rational and factual understanding of:
• The nature and object of the proceeding;
• The privilege of representation, including but not limited to, the ability to consult with a representative if one is present;
• The right to present, examine, and object to evidence;
• The right to cross-examine witnesses; and
• The right to appeal
A reasonable ability to:
• Make decisions about asserting and waiving rights;
• Respond to the allegations and charges in the proceedings; and
• Present information and respond to questions relevant to eligibility for relief.
If a detained respondent is unable to perform any one of the above functions, then he or she is unable to represent him-or herself. An Immigration Judge is required to detect facts suggesting incompetency, conduct a judicial inquiry, and follow up with a competency review.
If the Immigration Judge determines that a respondent is not competent to represent him-or herself, the EOIR may provide a qualified representative who is found to be incompetent to represent him-or herself.
While this elaborate process to determine whether a respondent is competent or not is a good first step, one wonders why this process is conducted on behalf of a respondent without the presence of a lawyer.
This writer believes that the respondent should have a legal representative earlier in the process, when his or her competency is being evaluated.
Even when a lawyer is appointed by the court to represent a respondent who is not found to be competent, there is a potential for conflict of interest as the appointment will generally only last while the client is detained.
If the client is bonded out, the lawyer will no longer be paid by EOIR after the client is released. This creates an ethical dilemma. If the client desperately needs the assistance of a lawyer who is paid by the government, he or she can only be represented by counsel at government expense while in immigration custody.
Would it be in the client’s best interest to be released but not to have appointment counsel, or rather to have appointed counsel while in custody? This might be easier to resolve if the client could make decisions and provide informed consent, but clients with severe mental disabilities might be unable to make informed decisions.
On the other hand, there are no safeguards relating to non-citizens applying for immigration benefits outside a custodial setting. Practitioners representing clients with mental disorders should advocate for the application of the safeguards enunciated in Matter of M-A-M even outside a removal hearing, which include:
• Legal representation
• Identification of close friends or family members who can assist
• Docketing/managing case to give time for legal representation or medical treatment
• Participation of a guardian in the proceedings
• Continuance or administrative closure
• Closing hearing to the public
• Waiving respondent’s appearance
• Assistance with development of record
• Reserving appeal rights
Cyrus D. Mehta
To be continued
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