Appeals/Pro Bono

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CLINIC Amicus Brief on Family as a Particular Social Group

The Board of Immigration Appeals is currently considering the circumstances under which a person may qualify for asylum if they fear persecution on account of their family relationship to another person. CLINIC and Justice for Our Neighbors have offered an amicus brief arguing that family, standing alone, is a ‘particular social group’ as used in asylum law. 

CLINIC also urges advocates to study the Department of Homeland Security’s Supplemental Brief in the same case. DHS, in a case identified by the Board as important, concedes that where persecution is on account of a family relationship, nothing more is required to satisfy the nexus requirement for asylum. DHS also uses surprisingly generous language in their brief regarding cases where persecutors have more than one motivation for harming their victims.

CLINIC Amicus Brief on Family as a Particular Social Group (Matter of L-A-)

Department of Homeland Security Supplemental Brief in Matter of L-A-

Brief by Amici Curiae Non-Profit Organizations and Law School Clinics

EOIR Announces Two Final Rules Relating to Legal Representation

Brad Jenkins

On September 16, 2015, EOIR also released two final regulations relating to R&A. The first rule changed the regulation relating to appearances before the agency to allow for separate appearances in bond proceedings and other proceedings conducted by EOIR. The second rule changed the process by which organizations and attorneys apply for, remain on, and are removed from EOIR’s “List of Pro Bono Legal Service Providers” (formerly the “Free Legal Service Provider List”).

The first change, “Separate Representation for Custody and Bond Proceedings,” will replace the current version of 8 CFR § 1003.17. Under the replaced regulation, while bond proceedings are separate and distinct proceedings from the underlying removal proceedings (with a separately created record of proceedings), the filing of Form EOIR-28 entered the representative’s appearance in all proceedings before the Immigration Court. If a representative entered his or her appearance for a bond hearing, he or she was required to submit a Motion to Withdraw in order to be relieved from the responsibility of future representation. Because withdrawal is in the discretion of the Immigration Judge, this regime prevented representatives from reliably engaging in bond-only representation. Under the new regulation, separate bond-only representation is expressly permitted. EOIR and its stakeholders, including CLINIC, are hopeful that this change will increase access to counsel for people in removal proceedings.

The second change, “List of Pro Bono Legal Service Providers for Individuals in Immigration Proceedings,” will be codified at 8 CFR §§ 1003.61-66. It significantly changes the process by which organizations and individuals participate in the List of Pro Bono Legal Service Providers that is distributed to every unrepresented individual who appears before the Immigration Court. The regulations are intended to stem abuse of the List by attorneys who do not engage in a meaningful amount of pro bono representation and instead use the List to solicit fee-paying clients. The new regulations provide for three categories of participants: (1) organizations; (2) pro bono referral services; and (3) individual attorneys. Each category of participants has different eligibility criteria for placement on the List. Notably, organizations and individual attorneys must certify that they provide at least 50 hours of pro bono representation annually in each immigration court location for which they appear on the list. Further, organizations and attorneys placed on the list must document their compliance with the 50-hour pro bono requirement and provide the A-Numbers of those provided pro bono services. In addition to the minimum pro bono requirement, an individual attorney who wishes to be placed on the list must document his or her good faith efforts to provide pro bono legal services through an organization or pro bono referral service and persuade EOIR that the current level of services is inadequate to serve the community.

EOIR’s announcement of these changes, together with the proposed rule to reform the Recognition and Accreditation process can be found here: http://www.justice.gov/eoir/notice-eoir-publishes-rules

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EOIR Announces Implementation Guidance for Its Program to Protect Incompetent Respondents

By Bradley Jenkins*

On December 31, 2013, the Executive Office for Immigration Review (EOIR) released guidance to the nation’s immigration judges entitled “Phase I of Plan to Provide Enhanced Procedural Protection to Unrepresented Detained Respondents with Mental Disorders.”  This guidance is the latest chapter in EOIR’s ongoing effort to reform how the agency handles the cases of persons with mental disorders who are placed into removal proceedings.

Background

For the past several years, both the immigrant advocacy community and EOIR have been pursuing substantial reform in the way that removal proceedings are conducted when the respondent suffers from a severe form of mental illness.  In 2011, the Board of Immigration Appeals decided Matter of M-A-M-, 25 I&N Dec. 474 (BIA 2011), setting forth a legal framework to (1) adjudicate  whether a noncitizen is competent to participate in removal proceedings and (2) if the respondent is incompetent, implement safeguards to ensure that the proceedings are fundamentally fair.  On April 22, 2013, both the Department of Homeland Security (DHS) and EOIR announced, in general terms, the agencies’ plans to implement policy reforms by the end of 2013.  Further, on April 23, 2013, the United States District Court for the Central District of California entered a permanent injunction in the class action case of Franco-Gonzales v. Holder, making certain reforms mandatory for incompetent detainees in Arizona, California, and Washington.  The December 31st guidance represents the implementation of the EOIR’s April 22nd policy directive.

EOIR’s Guidance

EOIR’s new guidance clarifies the legal standard for competence and provides a detailed course of action for immigration judges adjudicating the cases of detained, unrepresented immigrants who show signs of a mental disorder.

Clarification of Definition of Competence

EOIR’s “Phase I” guidance clarifies the definition of competence in the context of an unrepresented respondent.  The guidance states that, where the respondent is unrepresented, he or she must be “competent to represent him- or herself in a removal or custody redetermination proceeding,” i.e. he or she must “be able to meaningfully participate in the proceedings and perform the functions necessary for self-representation.  The guidance lists eight “competencies” that an unrepresented litigant must possess:

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 an unrepresented litigant is unable, because of a mental disorder, to perform any one of these enumerated functions, he or she is incompetent to represent him- or herself.  For example, if the respondent shows that she has a rational and factual understanding of the removal proceedings, but, due to a mental disorder, does not have a reasonable ability to present information and respond to questions about an asylum claim, she is incompetent to represent herself.  This guidance is significantly more robust than that in Matter of M-A-M-, which merely provided that an unrepresented respondent must have “a rational and factual understanding of the nature and object of the proceedings” and have “a reasonable opportunity to examine and present evidence and cross-examine witnesses.” 25 I&N Dec. 474, 479 (BIA 2011).

Competency Determination Procedure

The Phase I guidance articulates three stages of inquiry into the competency of an unrepresented, detained respondent: detecting facts suggesting incompetency, conducting a judicial inquiry, and conducting a competency review.

The detection stage is characterized by an immigration judge’s responsibility to “be vigilant at all times for indicia of a mental disorder” that significantly impairs a respondent’s competency.  While the respondent is presumed to be competent, see M-A-M-. 25 I&N Dec. at 477, the guidance instructs immigration judges to be alert in every case for behaviors or other evidence that the respondent may be incompetent.   The guidance provides several examples of facts that indicate that a person may be incompetent, such as past or current evidence of interventions related to mental disorder and courtroom behavior suggesting mental disorder.  The guidance also reiterates DHS’s obligation to provide the court with relevant materials obtained or created in its role as a custodian and prosecutor that would inform the court about the respondent’s mental competency.

The detection stage is passive and applies to every case.  Where the immigration court, in performing its detection function (and informed by mandatory DHS disclosures), has a “bona fide doubt” about the respondent’s competency to represent himself, the immigration judge should proceed to a pro-active “judicial inquiry.”  During a judicial inquiry, the immigration judge poses questions to the respondent designed to explore whether he or she possesses each of the eight competencies discussed above.  The purpose of the judicial inquiry is to permit the immigration judge to make an informed decision about whether the respondent’s competency is “at issue.” 

At the end of the judicial inquiry, it is possible that the immigration judge has enough information to conclude that the respondent is either competent or incompetent.  However, if, at the conclusion of the judicial inquiry, there is “reasonable cause” to believe that the respondent is suffering from a mental disorder that impairs his or her ability to represent him- or herself, then the immigration judge should conduct a formal competency review.  A competency review includes the testimony of a mental health expert who will be appointed at the court’s expense to evaluate the respondent’s functional capacities.  The guidance provides extensive substantive standards to regulate the use of these court experts.

Benefits Provided

If, at either the judicial inquiry or the competency review stage, the immigration judge determines that an unrepresented, detained respondent is incompetent to represent him- or herself, then the Immigration Court will provide a qualified representative.  The guidance instructs immigration judges to consider whether the provision of a qualified representative is a sufficiently “effective safeguard.”  Immigration judges retain the authority to provide any other appropriate safeguards to ensure the fundamental fairness of the immigration proceeding.

 

The Phase I guidance does not address the portion of the April 22, 2013 directive that indicated that all detained incompetent individuals will receive bond hearings after six months of detention.

Limitations on Use of the Guidance

It must be noted that, as a formal matter, the Phase I guidance only applies to respondents who are both (1) detained and (2) unrepresented.  However, much of the guidance should still be very useful where the respondent is on the nondetained docket or has representation.  For example, there is no reason a nondetained, but unrepresented, respondent should not benefit from the more nuanced understanding of “competence to represent oneself” articulated in this guidance.  However, persons with representation, whether detained or not, will likely still be held to the ability to consult with counsel standard articulated in M-A-M-. 25 I&N Dec. at 479.  Further, DHS has not yet supplemented its April 22, 2013 memorandum with the particular procedures it will be using to comply with its mental health screening and information sharing obligations.

CLINIC remains committed to ensuring that all immigrants are treated fairly in removal proceedings.  Continued expansion of protections for vulnerable populations, including the mentally incapacitated, is a key advocacy priority for 2014.

* Bradley Jenkins is an attorney in CLINIC’s Advocacy Department and the coordinator for the BIA Pro Bono Project.  The Pro Bono Project often represents clients with severe forms of mental illness and a Pro Bono Project volunteer provided representation in the original M-A-M- case.

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