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.
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 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.
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:
A reasonable ability to:
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).
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.
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.
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.