Last Updated: Tuesday, 30 September 2014, 11:43 GMT

Intervention before the United States Board of Immigration Appeals - US: The Failure to Provide Fair Removal Hearings to Persons with Mental Disabilities

Publisher Human Rights Watch
Publication Date 3 September 2010
Related Document Deportation by Default: Mental Disability, Unfair Hearings, and Indefinite Detention in the US Immigration System
Cite as Human Rights Watch, Intervention before the United States Board of Immigration Appeals - US: The Failure to Provide Fair Removal Hearings to Persons with Mental Disabilities , 3 September 2010, available at: http://www.refworld.org/docid/4c8ddfef2.html [accessed 30 September 2014]
Comments Memorandum of law in response to the Board of Immigration Appeals' 24 June 2010 request for supplemental briefing by amicus curiae.
DisclaimerThis is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States.

INTEREST OF AMICUS CURIAE

Amicus Curiae Human Rights Watch is a non-profit, independent organization and the largest international human rights organization based in the United States. For over 30 years, Human Rights Watch has investigated and exposed human rights violations and challenged governments to protect the human rights of citizens and non-citizens alike. To fulfill its mission, Human Rights Watch investigates allegations of human rights violations in the United States and throughout the world by gathering information from governmental and other sources, interviewing witnesses, and issuing detailed reports.  Where human rights violations have been found, Human Rights Watch advocates for the enforcement of those rights before government officials and in the court of public opinion.

INTRODUCTION

Amicus Curiae Human Rights Watch, through its attorneys, Patterson Belknap Webb & Tyler LLP, respectfully submits this memorandum of law in response to the Board of Immigration Appeals' ("BIA") June 24, 2010 request for supplemental briefing by amicus curiae.  Human Rights Watch recently completed a year-long, joint investigation and report with the American Civil Liberties Union concerning violations of the rights of people with mental disabilities in the U.S. immigration system. The report, Deportation by Default: Mental Disability, Unfair Hearings, and Indefinite Detention in the US Immigration System, included interviews with immigration judges, advocates, and detainees and documented violations of the right to a fair hearing and the right to be free from arbitrary and prolonged detention for people with mental disabilities.The investigation was conducted in twelve immigration detention facilities, spread across nine states.As indicated by the report's findings, by failing to provide meaningful safeguards for individuals with mental disabilities, current U.S. immigration court practices violate international human rights standards. This amicus brief, based on findings detailed in the report, in point I will address question 5, in point II will address question 7, in point III will address questions 1-4, and in point IV will address question 8 presented by the Board of Immigration Appeals in its request for supplemental briefing In re Matter of L-T (hereinafter "BIA Request for Supplemental Briefing.")

BACKGROUND

  Individuals with mental disabilities may be unable to understand and meaningfully participate in deportation proceedings, either because they are unable to follow what is occurring or because they are unable to adequately provide information in their own defense. Persons with mental disabilities also refer to themselves as having psychosocial disabilities, a term that reflects the interaction between psychological differences and social/cultural limits for behavior as well as the stigma that the society attaches to persons with mental impairments. World Network of Users and Survivors of Psychiatry, Implementation Manual for the United Nations Convention on the Rights of Persons with Disabilities, p. 9, available at http://www.chrusp.org/home/resources (accessed July 7, 2010).  As these definitions indicate, depending on the particular disability,  a person with an intellectual disability may be unable to perform at the mental level of others his or her age. See id.Mental disabilities may include both mental health problems and intellectual disabilities. Serious mental health problems include diagnosable mental, behavioral, or emotional conditions that substantially interfere with or limit one or more major life activity. For example, a mental "disorder," as defined by The Diagnostic and Statistical Manual of Mental Disorders of the American Psychiatric Association ("DSM-IV"), is a "clinically significant behavioral or psychological syndrome or pattern that occurs in an individual" which is a "manifestation of a behavioral, psychological, or biological dysfunction in the individual." American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders IV-TR (4th Ed., 2000), p. xxxi.  The Convention on the Rights of Persons with Disabilities, signed by the U.S. but not yet ratified, recognizes people with disabilities as "those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others."Convention on the Rights of Persons with Disabilities ("CRPD"), adopted December 13, 2006, G.A. Res. 61/106, U.N. Doc. A/61/49 (2006), entered into force May 3, 2008, art. 1.

Intellectual and developmental disabilities are "characterized by significant limitations both in intellectual functioning and in adaptive behavior, which covers a range of everyday social and practical skills." American Association on Intellectual and Development Disabilities, FAQ on Intellectual Disability, http://www.aaidd.org/content_100.cfm?navID=21.

Attempts to ascertain the number of Immigration and Customs Enforcement ("ICE") detainees with a mental disability have suggested that an estimated 15 percent of the immigrant population in U.S. detention facilities have some kind of mental disability. See Dana Priest and Amy Goldstein, Suicides Point to Gaps in Treatment, Wash. Post, May 13, 2008, at A1. Based on the 2008 numbers for ICE detainees, approximately 57,000 of these individuals have a mental disability. See Dr. Dora Schriro, special advisor on ICE Detention and Removal, Immigration Detention Overview and Recommendations, Department of Homeland Security, Immigration and Customs Enforcement, October 6, 2009, pg. 2, available at http://www.ice.gov/doclib/091005_ice_detention_report-final.pdf (hereinafter "Schriro report") (stating that ICE detained 378,582 persons in 2008).  Even with such a large population of individuals with mental disabilities, the U.S. immigration court system lacks meaningful safeguards for the thousands of individuals facing possible deportation from the United States.  The complex system is difficult to understand for many respondents in removal proceedings, presenting particular challenges for those with mental disabilities.

SUMMARY OF ARGUMENT

All respondents in immigration and removal proceedings, including those with mental disabilities, are entitled to a fair hearing and a chance to defend his or her rights "The [incompetency] doctrine [where a defendant can not stand trial if he can't comprehend the charges against him, can't effectively consult with counsel, and can't assist in his defense] . . . has been characterized by the Supreme Court as 'fundamental to an adversary system of justice.'" Bruce J. Winick, Restructuring Competency to Stand Trial, 32 UCLA L. Rev. 921, 950 (1985) (quoting Drope v. Missouri, 420 U.S. 162, 172 (1975)). Removal proceedings must respect human rights, honor U.S. human rights commitments, and ensure fair and accurate decision-making.  A fair hearing is central to the protection of a person's rights and is the hallmark of a functioning justice system. To meet the right to a fair hearing guaranteed under international human rights law, meaningful safeguards are necessary to ensure such a fair hearing and protect the rights of individuals with mental disabilities. Among these safeguards are (1) the respondent's right to counsel, (2) the Immigration Judge's ("IJ") ability to terminate proceedings, (3) the IJ's power to order a competency hearing, and (4) the right to be free from arbitrary and prolonged detention. In order to comply with international human rights obligations, individuals with mental disabilities must be guaranteed the right to counsel in removal proceedings.   Even then, in certain circumstances, if the IJ determines that a respondent with a mental disability cannot explain the reasons against expulsion, even with counsel, the IJ must be empowered to terminate proceedings. U.S. immigration law currently provides no right to appointed counsel for individuals with mental disabilities and remains confusingly unclear as to whether and under what circumstances an IJ may terminate proceedings or order a competency evaluation.  Moreover, in the absence of these important safeguards to ensure a fair hearing, many immigration detainees with mental disabilities remain in prolonged detention during their immigration hearings. Accordingly, U.S. immigration law currently violates international human rights standards. 

ARGUMENT

POINT I
Respondents with Mental Disabilities Must Be Guaranteed Legal Representation

As noted above, the U.S. immigration system is heavily populated by individuals with mental disabilities. Those individuals face numerous specific challenges in immigration proceedings.  For instance, immigration detainees were sometimes unable to provide their name, date of birth or country of birth, or to understand the charges against them or what deportation meant.  See, e.g., Deportation by Default at 25-27, 33.  In some cases, the mental disability made it impossible for individuals to recall facts relevant to their claims for relief or to relate their experiences and wishes to the court in a clear manner. Respondents with mental disabilities may be poor and so cannot pay for a vigorous legal defense.  The absence of counsel has a demonstrable effect on the efficiency of immigration courts, as cases involving issues of mental incompetency can come at additional administrative cost to the immigration court, additional financial cost to the litigants, and generally require significant time and energy on the part of counsel.  In light of these unique circumstances, the guarantee of counsel is of special importance to respondents with mental disabilities.  Under U.S. domestic law, however, a non-citizen is provided with only the "privilege" of attorney representation, and not the right to legal representation provided by the government.  8 U.S.C. § 1229a(b)(4)(a); see also 8 U.S.C. § 1362.  Most respondents, in fact, remain unrepresented in removal proceedings.  According to the U.S. Department of Justice Executive Office for Immigration Review ("EOIR"), 61 percent of non-citizens detained in immigration proceedings did not have a lawyer.[1] See EOIR Statistical Year Book FY2009, p. G1 (March 2010). The failure of the U.S. immigration system to secure legal representation for respondents with mental disabilities deprives these individuals of a fair hearing.  This violates international human rights law.

A. Applicable International Human Rights Law

As the U.S. Supreme Court has noted, "[a]ll legitimate exercises of sovereign power, whether territorial or otherwise, should be exercised consistently with rules of international law, including those rules which mark the bounds of lawful state action against aliens . . . ."  Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 457 (1964); see also Gerald L. Neuman, Habeas Corpus, Executive Detention, and the Removal of Aliens, 98 Columbia L. Rev. 961, 1046 (2000) (recognizing that the notion of sovereign authority is derived from international law) Accordingly, international legal authorities should properly inform the application of immigration law in the United States.

  The International Covenant on Civil and Political Rights ("ICCPR"), which has been signed and ratified by the United States, states that "[a]n alien lawfully in the territory of a State Party to the present Covenant may be expelled therefrom only in pursuance of a decision reached in accordance with law and shall, except where compelling reasons of national security otherwise require, be allowed to submit the reasons against his expulsion and to have his case reviewed by, and be represented for the purpose before, the competent authority or a person or persons especially designated by the competent authority." International Covenant on Civil and Political Rights, Dec. 16, 1966, 999 U.N.T.S. 171, Art. 13, U.N. Doc. A/6316 (1966).  The United Nations Human Rights Committee, which monitors state compliance with the ICCPR and interprets the treaty, has interpreted Article 13 to cover non-citizens seeking to challenge deportation orders. See U.N. Human Rights Committee, General Comment no. 15, The Position of Aliens Under the Covenant, C.C.P.R. General Comment No. 15, U.N. Doc. HRI/GEN/1/Rev. 7 (May 12, 2004), available at http://www.unhchr.ch/tbs/doc.nsf/%28Symbol%29/bc561aa81bc5d86ec12563ed00... see also U.N. Human Rights Committee, C.C.P.R. General Comment no. 8, Right to lbierty and security of persons (art. 9) HRI/GEN/1/Rev.1 (1982), available at http://www.unhchr.ch/tbs/doc.nsf/%28Symbol%29/f4253f9572cd4700c12563ed00... (stating that this right applies to all deprivations of liberty, including immigration detention or confinement on account of mental impairment).  Further, the Human Rights Committee has issued the clarifying statement that "if the legality of an alien's entry or stay is in dispute, any decision on this point leading to his expulsion or deportation ought to be taken in accordance with article 13 . . . an alien must be given full facilities for pursuing his remedy against expulsion so that this right will in all the circumstances of his case be an effective one."  U.N. Human Rights Committee, The Position of Aliens Under the Covenant, C.C.P.R. General Comment No. 15, U.N. Doc. HRI/GEN/1/Rev. 7 (May 12, 2004). Under the terms of the treaty, the non-citizen must be able to submit the reasons against expulsion.  Id. The United Nations' principles governing detainees further state that a detainee should receive legal assistance if she is unable to afford a lawyer. Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment (Body of Principles), adopted December 9, 1988, G.A. Res. 43/173, annex, 43, U.N. GAOR Supp. (No. 49) at 298, U.N. Doc. A/43/49 (1988). 

Likewise, Article 8(1) of the American Convention on Human Rights, signed by the United States in 1977 (but not yet ratified), states, "Every person has a right to a hearing, with due guarantees and within a reasonable time, by a competent, independent, and impartial tribunal, previously established by law . . . for the determination of his rights and obligations of a civil, labor, fiscal, or any other nature."  American Convention on Human Rights, O.A.S. Treaty Series No. 36, 1144 U.N.T.S. 123, reprinted in Basic Documents Pertaining to Human Rights in the Inter-American System, OEA/Ser.L.V/II.82 doc.6 rev.1 at 25 (1992), http://www.oas.org/juridico/english/Sigs/b-32.html (accessed August 10, 2010). The Inter-American Commission on Human Rights ("IACHR"), interpreting this provision, has concluded that deportation proceedings require an interpretation of due process requirements that is "as broad as possible." Inter-American Commission on Human Rights, Loren Laroye Riebe Star, Jorge Alberto Baro Guttlein and Rodolfo Izal Elorz v. Mexico, Report No. 49/99, Case 11,610 (April 13, 1999).  Specifically, the Commission stated that the rights to meaningful defense and representation by an attorney were included among these due process rights. Id.

Furthermore, the IACHR has interpreted the American Declaration of the Rights and Duties of Man ("American Declaration"), which applies to the U.S. due to its membership of the Organization of American States, to mean that a State that fails to provide an adequate and effective remedy of a fundamental right under the American Declaration violates international law. Inter-American Commission on Human Rights, Rafael Ferrer-Mazorra, et al. v. United States, Report No. 51/01 (merits report), Case No. 9903, para. 244 (April 4, 2001).  The American Declaration requires that a person can resort to the courts, where a "simple, brief procedure" is available to protect against violations of fundamental constitutional rights. American Declaration of the Rights and Duties of Man, May 2, 1948, O.A.S. Official Rec., Res. XXX, adopted by the Ninth International Conference of American States (1948), reprinted in Basic Documents Pertaining to Human Rights in the Inter-American System, OAS/Ser.L/V/I.4 Rev. 9 (2003), available at http://www.oas.org/dil/access_to_information_human_right_American_Declaration_of_the_Rights_and_Duties_of_Man.pdf at art. XVIII.  The American Declaration further requires that any person accused of an offense receive an impartial and public hearing. Id. at art. XXVI. The IACHR has recently observed that the potential for deportation requires the application of "heightened due process protections" and, in holding the United States in violation of the American Declaration, stated that the current deportation system fails to offer detainees "an effective remedy, if merited, to preserve their fundamental rights."  Inter-American Commission on Human Rights, Wayne Smith, Hugo Armendariz, et al. v. United States, Report No. 81/10, Case No. 12,562, paras. 63-65 (July 12, 2010).

The Convention on the Rights of Persons with Disabilities, signed by the United States in 2009, but not yet ratified, also requires that individuals with mental disabilities "are not deprived of their liberty unlawfully or arbitrarily." Convention on the Rights of Persons with Disabilities ("CRPD"), adopted December 13, 2006, G.A. Res. 61/106, U.N. Doc. A/61/49 (2006), entered into force May 3, 2008, art. 14.  In recognition of the fact that individuals with mental disabilities may need additional support in court, the CRPD requires that parties "shall ensure effective access to justice for persons with disabilities on an equal basis with others, including through the provision of procedural and age-appropriate accommodations, in order to facilitate their effective role as direct and indirect participants, including as witnesses, in all legal proceedings, including at investigative and other preliminary stages." Id., art. 13. Likewise, parties to the CRPD "shall take appropriate measures to provide access by persons with disabilities to the support they may require in exercising their legal capacity." Id., art. 12.  In sum, the CRPD provides for the right to legal assistance so that individuals with mental disabilities can adequately participate in proceedings concerning their rights. 

International human rights law, as embodied by these treaties, calls explicitly for the provision of counsel to improve the fairness of our immigration system. Providing an attorney will allow the U.S. immigration system to ensure the fairness of removal proceedings, better serve those in the system, and bring about compliance with relevant international law.

B.The Right to a Fair Hearing in International Human Rights Law Requires That Respondents With Mental Disabilities Be Guaranteed Representation By Counsel

A removal order can result in an extreme loss of liberty:  it can involve lengthy, sometimes arbitrary detention; it can separate respondents from their families and communities; it can involve deporting individuals to countries where they have no family or do not speak the language or cannot receive the medical treatment or other assistance with their disabilities that they have been receiving.  See, e.g., Ng Fung Ho v. White, 259 U.S. 276, 284-85 (1922) (noting that deportation may deprive one of both property and life; "or of all that makes life worth living").  For this reason, all potential deportees with mental disabilities who require some support should have access to counsel during removal proceedings.  Cf. Woodby v. INS, 385 U.S. 276, 286 (1966) (acknowledging the "drastic deprivations" that deportation entails and requiring "clear, unequivocal, and convincing evidence" before a person can be deported) (internal quotation omitted). Moreover, given the complexities of U.S. immigration law and the profound effect that adequate representation can have, some, if not most, individuals with mental disabilities cannot be expected to properly submit the reasons against their expulsion-as is required by the ICCPR, American Convention on Human Rights, and the CRPD-without attorney representation. 

As the federal courts have recognized, U.S. immigration law involves a complex set of regulations that are difficult for any non-citizen to understand.  See, e.g., Al Khouri v. Ashcroft, 362 F.3d 461, 464-64 (8th Cir. 2004) (referring to the "morass of immigration law"); see also Lok v. INS, 548 F.2d 37, 38 (2d Cir. 1977) (noting a "baffling skein of provisions for the INS and courts to disentangle").  If U.S. federal judges acknowledge the complexity of comprehending the immigration laws, non-citizens-let alone non-citizens with mental disabilities who need support -cannot be expected to adequately assert their rights in the immigration courts.

  Indeed, the statistics bear out the importance of counsel in immigration proceedings.  A recent study found that "[r]epresented asylum seekers were granted asylum at a rate of 45.6%, almost three times as high as the 16.3% grant rate for those without legal counsel."  Jaya Ramji-Nogales, et al., Refugee Roulette:  Disparities in Asylum Adjudication, 60 Stan. L. Rev. 295, 340 (2007); see also Human Rights First, In Liberty's Shadow: US Detention of Asylum Seekers in the Era of Homeland Security, 2004, p.39, http://www.humanrightsfirst.org/about_us/events/Chasing_Freedom/asylum_r... (accessed August 11, 2010) (citing Georgetown University Institute for the Study of International Migration Analysis of U.S. government statistics showing that "asylum seekers are up to six times more likely to be granted asylum when they are represented.").  The EOIR itself had acknowledged that the large number of individuals representing themselves was "of great concern."[2]  EOIR Statistical Year Book FY 2009, G1(March 2010). The importance of legal representation is further confirmed by the fact that the government itself is always represented by counsel in removal proceedings.  In addition, the presence of an attorney also improves court efficiency and aids the court in reaching a fair and just result. The ability to explain to the court whether and what claims for relief exist and based on what evidence, why an evaluation is necessary, or why proceedings should be terminated can streamline proceedings and eliminate costly and inefficient work for the court.

  Armed with the knowledge that it is inequitable for virtually any non-citizen to participate in removal proceedings without an attorney, adequate representation must be recognized as doubly important for individuals with mental disabilities who require support.  It is especially vital for people with mental disabilities to have the safeguards of counsel and the potential termination of proceedings.  Some with severe disabilities may not understand what is happening to them or what is at stake in the deportation hearings. See Human Rights Watch, Deportation by Default:  Mental Disability, Unfair Hearings, and Indefinite Detention in the US Immigration System, July 26, 2010, at 28, available at http://www.hrw.org/en/reports/2010/07/26/deportation-default-0 (hereinafter "Deportation by Default").  Such individuals may make statements against their interests, including false statements, without fully comprehending what the consequences are and without having the opportunity to mitigate the damage from the incriminating revelation (whether it is true or false).  Id. at 29.  Individuals with mental disabilities may make decisions against their best interests because they do not fully understand the legal options available to them.  Id. at 30. An individual with a mental disability may appear less credible, which could lead the fact-finder to make decisions adverse to their interests. Id. at 31. In other situations, respondents with mental disabilities may be unable to communicate with counsel or the court, make key decisions even with the assistance of counsel, or even provide basic biographical information.  Id. at 67.  As a result, immigration respondents with viable claims for relief-including claims of U.S. citizenship or claims to asylum-may never have the opportunity to present these claims in court. These heightened risks make it of paramount importance that meaningful safeguards be present to ensure a fair and just result in removal proceedings. 

Existing immigration statutes recognize that there may be circumstances in which a person with a mental disability may be unable to represent himself or herself, and in such cases, "the attorney, legal representative, legal guardian, near relative, or friend ... 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." 8 C.F.R.  § 1240.4.  Rather than calling for the appointment of counsel when no assistance is available, the statute authorizes the "custodian"-the warden of the detention facility, if the person is detained-to appear as a representative. This regulation violates the right to fair and impartial proceedings as the warden or other custodial officer is generally employed by ICE-or is acting under contractual authority to detain on behalf of ICE, which is also the prosecuting authority.  Universal Declaration of Human Rights (UDHR), adopted December 10, 1948, G.A. Res. 217A(III), U.N. Doc. A/810 at 71 (1948), art. 10; American Declaration, art. XXVI.

  In fact, the presence of a mental disability may be directly relevant to the merits of a non-citizen's claim that he or she should remain in the United States. The mental disability can both increase and decrease the likelihood that the non-citizen can remain in the country, depending on the approach taken by the IJ.  Only the presence of counsel can ensure all available arguments are made on behalf of the respondent and that an erroneous impression does not lead to the improper deportation of individuals with mental disabilities.  For example, those applying for cancellation of removal in immigration court must provide evidence about his or her "good moral character." 8 U.S.C. § 1229b(b)(1)(B).  Judges have discretion, when looking at an individual's criminal history, to look at mental disabilities to determine what character a person has and whether he or she can be rehabilitated.  Unfortunately, there is also the potential for judges to look to the mental disability as evidence and outright proof of bad moral character.

Only safeguards built in to ensure that respondents with mental disabilities have the assistance of counsel can mitigate the possible negative ramifications of mental disability in judgment of good moral character. Similarly, an application for cancellation of removal must show the hardship that deportation would cause to his or her legal permanent resident or U.S. citizen family members.  Judges should be able to analyze whether the detainee will suffer greater hardship if they "returned to their country and [were] forced to start a new life, possibly without any mental health care."  Deportation by Default at 31.  Unfortunately, individuals with mental disabilities may not have the capacity to fully explain the hardship that deportation will cause, due to their inability to fully participate in their defense.  Id. at 67.  Safeguards such as the right to counsel allow the individual to have his available arguments presented to a tribunal in a competent manner, enabling the IJ to make a fully-informed decision.

Given these inequities and the proven effectiveness that the presence of counsel provides, individuals with mental disabilities simply cannot obtain a full and fair hearing without attorney representation.  Likewise, when individuals with mental disabilities represent themselves without legal assistance,  the immigration system is in constant danger of improperly deporting those who should remain in this country. First, US citizens with mental disabilities have been erroneously deported from the United States. Deportation by Default at 4, 27.  Second,  some individuals may be deported to countries where they face persecution or torture,  which places the U.S. government in violation of binding human rights obligations under the non-refoulement principles of the Convention Relating to the Status of Refugees and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which prohibit States from returning refugees "to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social or political opinion," and from returning any person to a country where there are substantial grounds for believing that he or she would be in danger of torture.  Convention Relating to the Status of Refugees, 189 U.N.T.S. 150, entered into force April 22, 1954 (implemented in US law through INA Section 208), art. 33(1); Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Convention against Torture), adopted December 10, 1984, G.A. res. 39/46, annex, 39 U.N. GAOR Supp. (No. 51) at 197, U.N. Doc. A/39/51 (1984), entered into force June 26, 1987 (entered into force for the United States on 20 November 1994).  For example, in one case documented in Deportation by Default, a man who suffered severe brain trauma resulting from torture in Guatemala was unable to provide any evidence to the asylum officer or the immigration court about his assault and claim for asylum until family members in the U.S. were able to retain a lawyer and provide background facts to the court. Deportation by Default at 56-57.  Accordingly, without providing access to counsel for all respondents with mental disabilities, U.S. immigration law violates international human rights law. 

POINT II
IJs Should Be Empowered With Discretion To Terminate Proceedings

  The BIA asks whether termination of proceedings is an appropriate safeguard in immigration court.  BIA Request for Supplemental Briefing, question 7.  Termination of proceedings is a just and sometimes necessary safeguard that should be authorized explicitly where immigration judges think termination is appropriate.

Appointing counsel and providing coordinated services would ensure that most individuals with mental disabilities in removal proceedings have an opportunity to defend their rights and obtain just and appropriate results.  Nevertheless, there will be times when a lawyer alone will be insufficient to safeguard the rights of such individuals.  A lawyer may not be enough support for persons with mental disabilities where the disabilities impair their ability to communicate with counsel, make key decisions even with support of counsel, comprehend the meaning of deportation, or provide basic biographical information needed to determine the correct strategy to pursue.  In some cases, when an attorney is unable to communicate with a client who has significant mental disabilities, it is not clear even to that attorney whether or not the client is a U.S. citizen.  See Deportation by Default at 45.

  When the competency of a respondent is in doubt, the IJ must have the discretion to terminate the proceedings.  This termination can be done with or without the consent of both parties, although if the competency of the individual is a disputed matter, the IJ must call for a competency hearing.  The discretion to implement these safeguards is necessary to ensure that immigration court decisions are not arbitrary or unfair.  Without such safeguards in immigration court, a non-citizen may face the severe curtailment of liberties that are part of deportation without allowing the opportunity to present evidence in an impartial hearing.

  As noted above, section 13 of the ICCPR requires that a non-citizen have the opportunity to submit the reasons against his expulsion.  This has been interpreted by the United Nations Human Rights Committee to cover non-citizens wanting to challenge deportation orders.  U.N. Human Rights Committee, General Comment no. 15, The Position of Aliens Under the Covenant, C.C.P.R. General Comment No. 15, U.N. Doc. HRI/GEN/1/Rev. 7 (May 12, 2004), available at http://www.unhchr.ch/tbs/doc.nsf/%28Symbol%29/bc561aa81bc5d86ec12563ed004aaa1b?Opendocument.  If a non-citizen has a mental disability, this may limit his or her ability to submit such reasons.  In such cases, continuing with deportation proceedings violates the requirements of the ICCPR.

The very jurists charged with implementing U.S. immigration law have noted the difficulties facing the Court system when a non-citizen has a mental disability.  The most recent IJ Benchbook proposes that IJs could have the power to terminate proceedings when the non-citizen has a mental disability that makes his or her participation in the deportation proceedings difficult.  "Immigration Judges should take steps to ensure fundamental fairness inheres.  Such steps may include but are not limited to . . . terminating proceedings . . . .  It remains an open question under the Fifth Amendment Due Process Clause whether proceedings could be terminated to assure fundamental fairness where an alien is severely or profoundly incompetent, and no person can be identified to protect his or her interests other than a DHS custodian."  US Department of Justice, Executive Office for Immigration Review, Benchbook for Immigration Judges, Part I.B(2), http://www.justice.gov/eoir/vll/benchbook/tools/MHI/index.html (accessed August 11, 2010).

As the IJ is often in the best position to observe the non-citizen, the system must allow an IJ, sua sponte or by motion of a party, to terminate the proceedings.[3]  If a non-citizen regains the ability to effectively assist in his or her defense, ICE can bring the deportation proceedings again. [4]  Allowing such discretion is consistent with the rules set out by the BIA.  The Practice Manual for the Board of Immigration Appeals specifically states that IJs are "independent adjudicators [who] make determinations of removability, deportability, and excludability . . . ."  Board of Immigration Appeals, Practice Manual, at 2, available at http://www.justice.gov/eoir/bia/qapracmanual/BIA_Practice_Man_FullVer.pdf.  This description implicitly calls for IJs to have all the discretion and power necessary to make the decisions necessary to determine whether a non-citizen should be deported or not. 

  Indeed, apart from the requirements of international law, the U.S. immigration system already anticipates discretion in cancelling proceedings that would otherwise waste government resources without serving government interests. For instance, a notice to appear can be withdrawn if the "circumstances of the case have changed after the notice to appear was issued to such an extent that continuation is no longer in the best interest of the government." 8 C.F.R. § 239.2(a)(7).  Likewise, the Department of Homeland Security ("DHS") has encouraged trial attorneys to work with ICE and other agencies to discourage the issuance of a notice to appear where "sympathetic humanitarian factors" would instead call for deferring prosecution.  William J. Howard, Principal Legal Advisor, Dep't of Homeland Security, Memorandum to all OPLA Chief Counsel, "Prosecutorial Discretion," Oct. 24, 2005.

As recounted above, this authority is necessary to ensure compliance with international human rights law in many cases.  Individuals with disabilities may not understand what is happening in proceedings or may make statements against their interests without fully comprehending what the consequences are and without having the opportunity to mitigate the damage from the incriminating revelation.  Deportation by Default at 28-29.  As was the case in the matter before the BIA, an individual with severe and pervasive mental disabilities may be wholly unable or unwilling to communicate with counsel or the court.  Id. at 67.  In these extreme instances where an individual, even with the assistance of counsel, cannot explain the reasons against his expulsion as required by the ICCPR, the IJ must terminate proceedings.

  As the IJs state in the benchbook, the discretion necessary to order a termination of proceedings is vital to ensure the integrity of the system.  Without the authority to terminate the proceedings, the IJ may be powerless to ensure a fair hearing, which is the bedrock of our system.  It is reported that, in some cases, where a respondent's disability is particularly severe, neither the attorney nor the court can determine if the respondent has a claim to remain in the United States, for example, a claim to US citizenship; and without the necessary facts before the court, an immigration judge cannot be the fact finder. Deportation by Default at 60-63.  In those cases, immigration judges and attorneys observed that continuing with the proceeding meant risking an erroneous decision to deport.  Id.  International human rights law requires that the United States allow the non-citizen an opportunity to present a defense before being deported.  Without safeguards built in to protect individuals with mental disabilities who may be unable to fully understand and participate in the proceedings, the U.S. immigration system violates international law.

POINT III
IJs Must Be Able To Order A Competency Hearing When Appropriate

The BIA asked under what circumstances an IJ can order a competency assessment or examination to determine when counsel and other safeguards are necessary and under what circumstances it is appropriate for DHS to refuse to provide the competency determination to the court.  BIA Request for Supplemental Briefing, questions 1-4.  Such a competency hearing would determine if a person needs support in exercising their legal capacity or if the IJ should terminate proceedings.  Counsel must be provided to indigent respondents who have, or are suspected of having, a mental disability that impedes their ability to represent themselves without support.  It is appropriate for the court or any of the parties to request a competency assessment to determine what safeguards may be necessary and suitable to provide support for the individual participating in deportation proceedings so that his or her evidence can be effectively heard by the court. DHS, including its trial attorneys and detention staff, should not be permitted to object to or obstruct a request for an evaluation by the court as the purpose of a competency assessment is to provide necessary support and to ensure a fair immigration proceeding.

The current system for determination of competency is untenable.  Instead of appointed counsel when no help is available, current law names wardens of ICE detention facilities ( as the "custodian") to represent the non-citizen, even while ICE is simultaneously prosecuting him or her.  8 C.F.R. 1240.4.  This conflict of interest should not be condoned under any circumstance. Moreover, it violates the ICCPR and contradicts the Universal Declaration of Human Rights.  Universal Declaration of Human Rights (UDHR), adopted December 10, 1948, G.A. Res. 217A(III), U.N. Doc. A/810 at 71 (1948), art. 10 ("Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.").  By permitting ICE attorneys who have a vested interest in the outcome of removal proceedings to represent the non-citizen, immigration courts are failing to provide such an independent and impartial tribunal.

IJs are provided with little guidance to work through this problematic situation.  IJs stated in their benchbook that they need to be able to ensure fair hearings yet they are left in the dark as to their power to terminate proceedings even when they find that fairness requires such a termination.  IJ Mimi Tsankov, for example, noted that there are scenarios in which IJs receive absolutely no guidance in hearings involving a non-citizen of questionable competence, such as the situations where "an unrepresented respondent pleads and later claims mental incompetency" or "presents evidence of incompetency."  Mimi E. Tsankov, Incompetent Respondents in Removal Proceedings, Immigration Law Advisor, vol. 3 no. 4 (April 2009).  These gate-keepers for non-citizens with potential mental disabilities, charged with determining whether respondents should be removed from or remain in the United States, are operating in a system with little-to-no instruction.  The only appropriate way to resolve these issues is through a clarification of the powers of the IJs and the implementation of sufficiently strong safeguards for the non-citizens in question.

It is reported that, in many circumstances, ICE trial attorneys refuse to either conduct or produce competency evaluations to the court.  Deportation by Default at 48. IJs must have clear authority to require these evaluations, and ICE trial attorneys should not be permitted to withhold evidence of a person's mental disability and inability to participate in court without support.

In situations where the competency of a respondent in immigration court is disputed by the parties in a deportation proceeding, IJs must have the ability to call for a competency hearing to determine whether an attorney must be appointed, and whether the non-citizen is able to participate in his or her defense or alternatively, if the proceedings must be terminated.[5]

The authority conducting a competency hearing must conduct it in the manner best able to avoid any bias or the appearance of any such improprieties.  In the aforementioned American Convention on Human Rights, Section 8(1), the guarantee is made of an independent and impartial tribunal.  Placing the competency hearing within the purview of an independent third-party satisfies this requirement by removing the threat of a key determination being made by the very individuals who are bringing the deportation proceedings against the non-citizen, i.e. the DHS and ICE. The involvement of ICE or any other branch of the DHS would only taint the competency hearing itself. By allowing an independent third-party to conduct the examination, the immigration court will be better able to guarantee the integrity of the process.

If the individual is found incompetent to self-represent in an immigration hearing, the IJ must ensure counsel for the non-citizen and use his or her discretion to determine if the non-citizen is able to effectively submit the reasons why she should not be deported.  Reports have shown respondents included individuals who could not provide their names, date of birth, country of birth, who did not know what a judge or a court was, and who could not provide answers to any questions posed.  Deportation by Default at 6, 25-26, 61.  These individuals were unable to provide the basic information necessary to establish any claims for relief and so could not construct a defense against deportation without legal assistance in investigating and presenting claims to the court.  If the non-citizen is not able to so participate in her defense, the proceedings should be terminated.

POINT IV 

Absent Courtroom Safeguards, Respondents with Mental Disabilities Remain Arbitrarily in Prolonged and Indefinite Detention

  The Board of Immigration Appeals has asked two questions related to the duration of detention of a respondent:  BIA Request for Supplemental Briefing, Question 8 - "If a respondent is found to be incompetent and proceedings do not move forward, what happens to a respondent who is in custody and without care?" - and BIA Request for Supplemental Briefing, Question 7 - asking whether administrative closure is an appropriate safeguard.  Many immigration detainees with mental disabilities languish in prolonged and indefinite detention waiting for their cases to be resolved, but without any system in place to guarantee that their cases will be resumed and fairly handled. To solve this problem, and the questions posed by the BIA, appropriate and meaningful safeguards must be available.  Administrative closure would indeed be an appropriate safeguard to utilize if proceedings come to a halt, so long as this power is amended to include an IJ's authority to order the release of an individual from detention in appropriate circumstances.

The rights to liberty and freedom from arbitrary detention are central tenets of human rights law.  The ICCPR provides that everyone has the right to liberty and must have an opportunity to challenge deprivation of liberty before a court. ICCPR, art. 9(1) ("No one shall be subjected to arbitrary arrest or detention.  No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law"); ICCPR, art. 9(4) ("Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court[.]"); see also Body of Principles, at para. 11.1.  The Human Rights Committee, which monitors compliance with the ICCPR, states that this right applies to all deprivations of liberty, including immigration detention or confinement on account of mental impairment. Human Rights Committee, General Comment No. 8, in Report of the Human Rights Committee, Human Rights Committee, U.N. GAOR, 37th sess., Supp. No. 40, Annex V at 95 (1982). The Convention on the Rights of Persons with Disabilities further requires that persons with mental disabilities, on an equal basis with others, "are not deprived of their liberty unlawfully or arbitrarily."  CRPD, art. 14(2).

Detaining persons with mental disabilities contravenes additional tenets of international and domestic law requiring that such individuals can access treatment and live in the community.  Principles for the Protection of Persons with Mental Illnesses and the Improvement of Mental Health Care, G.A. res. 46/119, 46 U.N. GAOR Supp. (No. 49) at 189, U.N. Doc. A/46/49 (1991), principle 9.1; Olmstead v. L.C., 527 U.S. 581 (1999) (requiring that states provide services to individuals with disabilities in the "most integrated setting"); Disability Advocates Inc. v. Paterson et al., No. 03 CV 3209, 2009 WL 2872833 (E.D.N.Y., Sept. 8, 2009); American with Disabilities Act, 42 U.S.C. §12101 et seq., and §504 of the Rehabilitation Act, 29 U.S.C. §791 et seq.

In general, "[a]nyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release. It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial."  ICCPR, art. 9(3).

U.S. law violates this standard when detainees - particularly those with mental disabilities - are subject to prolonged detention due to inflexible detention policies during court proceedings.  These individuals may languish in illegal detention with no end in sight because immigration courts are not equipped to handle cases where a person with mental disability cannot represent themselves, and often cannot order release in the interim. 

Human rights law recognizes that detention must have a legal basis and justification, and that its "nature and duration" must be related to its purpose.  ICCPR art. 9; U.N. Commission on Human Rights, Report of the Working Group on Arbitrary Detention, E/CN.4/1992/20, January 21, 1992, Annex 1; Jackson v. Indiana, 406 U.S. 715, 738 (1972).

Under international law, a person is entitled to have a judicial authority promptly review their detention, and to be represented at such a hearing. Body of Principles, at para. 11.1.  Detention becomes arbitrary under human rights law when it "manifestly cannot be linked to any legal basis."  U.N. Commission on Human Rights, Report of the Working Group on Arbitrary Detention, E/CN.4/1992/20, January 21, 1992.

In 1952, the U.S. Supreme Court deemed detention "necessarily" a part of the deportation procedure.  Carlson v. Landon, 342 U.S. 524, 538 (1952).  However, governments cannot create regulations to authorize detention that would be otherwise disproportionate or unjust.Manfred Nowak, U.N. Covenant on Civil and Political Rights: CCPR Commentary, 172 (1993) ("[i]t is not enough for deprivation of liberty to be provided for by law.  The law itself must not be arbitrary, and the enforcement of the law in a given case must not take place arbitrarily."); William J. Aceves, Paul L. Hoffman and Joan Fitzpatrick, Brief of Amici Curiae International Human Rights Organizations In Support of Respondent, Demore v. Kim, October 28, 2002.  The Human Rights Committee explicitly stated that meaningful review of the "lawfulness of detention" under article 9, paragraph 4 of the ICCPR "must include the possibility of ordering release, [and] is not limited to mere compliance of the detention with domestic law."  A v. Australia, Communication No. 560/1993, U.N. Doc. CCPR/C/59/D/560/1993 (April 30, 1997), at para. 9.5.

Even when cases are indefinitely delayed because respondents cannot participate in court, many immigration detainees with mental disabilities are not allowed to be released to the community to receive treatment and care during immigration proceedings.  The Human Rights Committee has explained the right to a fair trial without delay "relates not only to the time by which a trial should commence, but also the time by which it should end and judgment be rendered . . . ." U.N. Human Rights Committee, C.C.P.R. General Comment no. 13, Equality before the courts and the right to a fair and public hearing by an independent court established by law (art. 14) HRI/GEN/1/Rev.1 (1984), available at http://www.unhchr.ch/tbs/doc.nsf/%28Symbol%29/bb722416a295f264c12563ed0049dfbd?Opendocument. In the absence of regulations permitting the release of immigration detainees with mental disabilities during deportation hearings, an immigration respondent's detention and hearing may be indefinitely delayed, in contravention of human rights law mandating timely hearings and prohibiting prolonged detention.

All of these rights, guaranteed by domestic and international law, are in danger due to an overloaded immigration detention and court system and incomplete protections for detainees.  Immigration courts now handle more cases, which take longer to pass through the system, than ever before.  According to the Transactional Records Access Clearinghouse (TRAC), immigration courts had a record-setting high of 247,922 matters awaiting resolution in mid-June, with the average length of wait per case being 459 days. Transactional Records Access Clearinghouse, "Immigration Case Backlog Continues To Grow," August 12, 2010, available at http://trac.syr.edu/immigration/reports/235/.  Such delays are predictable when the person facing deportation cannot represent their own interests; there are no limits on detention; and attorneys and immigration judges-who have no authority to release individuals subject to mandatory detention-lack guidance on how to proceed with such cases.

Further, the number of detainees has increased exponentially.  In 1996, ICE detained less than 10,000 people a day. Office of the Inspector General, Immigration and Naturalization Service, "Contracting for Detention Space," Audit Report 97-05 (1/97), at 2,  http://www.usdoj.gov/oig/reports/INS/a9705/index.htm.  As of September 1, 2009, 31,075 people were in ICE detention, 20,510 (66 percent) of whom were subject to mandatory detention.  Schriro Report at 2.

Moreover, delays often occur when IJs issue multiple continuances so that the respondent could find an attorney - a challenge for any immigration detainee, and a particular hardship for those with mental disabilities. Deportation by Default at 72. Delays also happen when judges attempt to explain proceedings to respondents who do not have legal representation to help them.  Id.  Furthermore, proceedings are delayed when a respondent cannot continue due to medication or is unable to respond to legal charges without support.  Some individuals said they had missed immigration court dates when receiving treatment in psychiatric care facilities.  Id.

As they exist now, U.S. mandatory detention laws mean that detainees with mental disabilities often find themselves in detention facilities, far from their families and mental health care providers. Released detainees have stated that their conditions had deteriorated while in detention, and as a result, they were unable to participate in court, leading to delays in court hearings and sometimes, mistaken statements against their own interest (for example, saying they wanted to be deported and later regretting it).  Deportation by Default at 68.

These missing safeguards are further exacerbated by the absence of firm temporal limits on detention during immigration hearings. In Demore v. Kim, the U.S. Supreme Court upheld mandatory detention of certain non-citizens convicted of particular crimes, but only "for the brief period necessary for their removal proceedings," a period the court described as approximately 45 days for the 85 percent of cases in which an individual did not appeal an IJ's decision, and an additional four months for those who appealed to the BIA.  Demore v. Kim, 538 U.S. 510, 513 (2003).  But the case did not establish a firm limit for how long an individual can be detained during immigration proceedings.

Where the individual appears to have a mental disability and is unable to participate in court, some IJs have administratively closed the case.  Both sides must agree to this step, which removes the case from the court calendar and puts it on hold, rather than ending it altogether.  See Matter of Amico, 19 I&N Dec. 652, 654 n. 1 (BIA 1988).  The Immigration Judge Benchbook, published by EOIR to provide guidance for immigration judges, defines administrative closure as "merely a procedural convenience that authorizes the temporary removal of proceedings from the Court's calendar while retaining the proceedings on the Court's docket," IJ Benchbook, Chapter 1.

As it currently exists, however, administrative closure would be an ineffectual and unsatisfactory safeguard when an individual is found to be incompetent and proceedings cease to move forward.  Administrative closure does not trigger release from detention, which may even be prolonged in the absence of limits on detention during immigration hearings, and can fail to address the reasons for which the case was administratively closed-the need for treatment and/or the inability of a person to proceed in court. Deportation by Default at 74.

Neither case law nor immigration regulations limit the time that a person can be detained during administrative closure before the case is returned to the court calendar and finally decided.  At times, cases administratively closed by IJs to allow DHS to provide competency evaluations lingered, with the individuals detained, while the evaluations were not completed.  For example, one individual had been detained for over four years awaiting a competency evaluation. Deportation by Default at 75.  Administrative closure puts a case on hold but does not end the case, and in many cases, immigration judges cannot order a detainee released from detention, if he or she is subject to mandatory detention, before the case has been finally resolved.[6]

Without providing IJs the power to release the respondent from detention, the United States' deportation system remains in violation of binding international law.  Detainees with mental disabilities are left in an arbitrary and prolonged system of confinement, depriving them of their guaranteed freedoms and liberties.

CONCLUSION

For the foregoing reasons, Amicus Curiae Human Rights Watch respectfully requests that the BIA implement the above-mentioned meaningful safeguards to ensure that U.S. immigration courts appropriately observe international human rights law.

Dated: September 3, 2010

PATTERSON BELKNAP WEBB & TYLER LLP

By: ____/s/_________________________________

Lisa E. Cleary

Harry S. Clarke, III

William Schmedlin

Attorneys for Amicus Curiae

[1] Independent analyses confirm that a majority of non-citizens in immigration proceedings did not have counsel. See Vera Institute for Justice, Improving Efficiency and Promoting Justice in the Immigration System: Lessons from the Legal Orientation Program, May 2008, p. 1 http://www.vera.org/download?file=1780/LOPpercent2BEvaluation_May2008_final.pdf (finding that 84 percent of immigration detainees in 2006-07 did not have a lawyer); see also Texas Appleseed, Justice for Immigration's Hidden Population: Protecting the Rights of Persons with Mental Disabilities in the Immigration Court and Detention System, March 2010, p. 13 (finding that 97 percent of immigration detainees in Texas were unrepresented in 2009).

[2] Likewise, numerous independent observers have focused on the need for appointed counsel. American Bar Association, Reforming the Immigration System: Proposals to promote Independence, Fairness, Efficiency, and professionalism in the Adjudication of Removal Cases, February 2010; The Constitution Project, Recommendations for Reforming our Immigration detention System and Promoting Access to Counsel in Immigration Proceedings, December 2009; Texas Appleseed, Justice for Immigration's Hidden Population: Protecting the Rights of Persons with Mental Disabilities in the Immigration Court and detention System, March 2010.

[3] If there is a dispute over the competency of the non-citizen, the IJ will have the authority to call for a competency hearing, convened in the manner best suited to produce an impartial analysis of the non-citizen's mental condition.

[4] In the interim, human rights law calls for the non-citizen to be released from detention. International human rights law requires that immigration detention should only be used where there is legitimate reason, such as fear of flight due to imminent deportation, and where detention is a proportionate and least-restrictive method to secure that aim, taking into account all the circumstances. Section 9.3 of the ICCPR states that detention while awaiting trial "shall not be the general rule" and that "release may be subject to guarantees to appear for trial." If the individual is not released, but merely returned to an ICE detention center, he or she may remain in the center for an indefinite period of time, even though no charges have been re-filed.

[5] To prevent any improper use of the competency hearing mechanism, all requests for such a determination should be governed by all applicable ethical guidelines and court rules of the relevant jurisdiction.

[6] Published cases on administrative closure in immigration court do not offer any discussion on time limits and procedures for re-calendaring a hearing. See Matter of Gutierrez, 21 I&N Dec. 479 (BIA 1996); Matter of Lopez-Barrios, 20 I&N Dec. 203 (BIA 1990); Matter of Munoz-Santos, 20 I&N Dec. 205 (BIA 1990); see also Diaz-Covarrubias v. Mukasey, 551 F.3d 1114 (9th Cir. 2009).

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