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Thread: Article: A Work In Progress: Mental Competency Issues In Immigration Practice By Cyru

  1. #1

    Article: A Work In Progress: Mental Competency Issues In Immigration Practice By Cyru

    A Work In Progress: Mental Competency Issues In Immigration Practice


    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 blog 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
    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

    • The right to present, examine, and object to evidence;

    • The right to cross-examine witnesses; and

    • The right to appeal

    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 decisons.

    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:

    of close friends or family members who can assist
    case to give time for legal representation or medical treatment
    of a guardian in the proceedings
    or administrative closure
    hearing to the public
    respondent’s appearance
    with development of record
    appeal rights

    Lawyers must also consult ABA Model Rule
    1.14, and its analog in a state bar ethics rule, which relates to representing a
    client with diminished mental capacity. Rule 1.14 instructs a lawyer to
    maintain a normal lawyer-client relationship as far as possible. Thus, to the
    extent that an impaired client is capable of making competent decisions, the
    lawyer must follow them. A lawyer may seek help from a family member or others
    in communicating with a client with a mental disorder, while at the same time
    taking into consideration whether the presence of others would affect the
    attorney-client privilege.

    This writer has represented clients for
    benefits applications, and has found it extremely useful to communicate with
    the client through trusted family members. A client with a mental disorder may
    have moments of lucidity, and it is important for the lawyer to ascertain how
    best to work with such a client through a professional diagnostician. At the
    benefits interview, counsel must insist that the USCIS generously provide accommodations
    for a client, including having the presence of a family member during the
    interview and to only ask the most basic questions, while relying on documentary
    evidence to determine eligibility for the immigration benefit. Note that 8 CFR
    103.2(a)(2) allows a legal guardian to sign a form for a person with mental

    With respect to applying for naturalization,
    the law has developed favorably towards persons with disabilities. Applicants
    who are physically or developmentally disabled, or have mental impairment are
    exempt from the English as well as civics/history test. Applicants may also
    seek a waiver of the oath requirement if they are unable to comprehend it.
    Designated representatives can complete the Form N-400, such as a guardian,
    surrogate, US citizen spouse, parent, son, daughter or sibling. It is potentially
    possible for a comatose applicant on a respirator to be able to apply for and obtain
    US citizenship, and sponsor a qualifying spouse through an I-130 petition, who
    in turn files his or her own adjustment application for lawful permanent

    Rule 1.14 also allows a lawyer to take
    reasonably protective action when a client is at risk of harm by either
    consulting with individuals or entities, and in appropriate cases, seek the
    appointment of a guardian or guardian ad litem. The lawyer may be impliedly authorized
    to reveal information protected by rule 1.6, but
    only to the extent reasonably necessary to protect the client's interests.While resorting to
    the appointment of a guardian may appear to be an obvious step on behalf of one
    who is unable to comprehend the nature of the proceedings or consent to the representation,
    it may also be a traumatic and expensive process, and may undermine the
    autonomy that the client is required to have under Rule 1.14. The guiding principles,
    as much as possible, are that the client determines the ends while the lawyer
    has control over the means.  According to
    Comment 7 to Model rule 1.14, “In many circumstances, however, appointment of a
    legal representative may be more expensive or traumatic for the client than
    circumstances in fact require. Evaluation of such circumstances is a matter
    entrusted to the professional judgment of the lawyer. In considering
    alternatives, however, the lawyer should be aware of any law that requires the
    lawyer to advocate the least restrictive action on behalf of the client.”

    To the extent that a client with mental
    disorders can provide informed consent, the lawyer’s role is made that much
    easier. The challenge lies with a client who is unable to consent at all. Under
    these circumstances, should the lawyer still play an activist role and represent
    the client? Is counsel then always required to seek the appointment of a
    guardian? Or are there less restrictive alternatives such as seeking the
    assistance of family members in determining the client’s best interests.   If
    counsel has been appointed by an immigration judge, how relevant is the client’s
    incapacity to consent if the lawyer believes it is still in the client’s best
    interests to have a legal representative? 8 CFR 1292.1(a)(1) &(a)(4) state,
    without reference to consent, that attorneys are entitled to appear in removal
    hearings. An attorney can play a crucial role on behalf of a client who is
    unable to consent.  Indeed, if the goal
    is for the respondent to remain in the United States (but that may only be
    assumed if the client is unable to comprehend the nature of the immigration proceeding),
    the very fact that a respondent may have a mental disorder may prompt an
    immigration judge to consider granting asylum if the respondent will be removed
    to a country that is unable or unwilling to protect its citizens with mental disorders.
    An immigration judge may also grant cancellation of removal pursuant to INA
    section 240A(b) if the documentation is able to demonstrate eligibility, such
    as 10 years of physical presence, good moral character and the qualifying
    relatives, who may be US citizens or permanent residents, are able to
    demonstrate exceptional and extremely unusual hardship.  There may be times, especially with clients
    who cannot seek relief, to advocate for administrative closure of the case or
    even termination. Again, when the client is unable to consent, would
    administrative closure or termination be in the client’s best interest over
    being removed from the United States and being with close family members

    There is much work that needs to be done to
    develop standards and provide clearer guidance.  In the meantime, the lawyer must grapple with
    emerging standards from the courts and EOIR, as well as interpret Rule 1.14
    within the immigration context, although not all states have adopted this rule.
     While representing non-citizen clients
    with mental competency issues can pose additional challenges, obtaining a
    successful outcome for the client under difficult circumstances can be
    extremely rewarding to the immigration lawyer.

    "The test of our progress is not
    whether we add to the abundance of those who have much. It is whether
    we provide enough to those who have little.”
    Franklin D. Roosevelt

    This article was originally published on on May 23, 2014. Reprinted with permission.

    About The Author

    Cyrus D. MehtaCyrus D. Mehta, a graduate of Cambridge University and Columbia Law School, is the Managing Member of Cyrus D. Mehta & Associates, PLLC in New York City. He is the current Chair of AILA's Ethics Committee and former Chair of AILA's Pro Bono Committee. He is also the former Chair of the Board of Trustees of the American Immigration Council (2004-06) and Chair of the Committee on Immigration and Nationality Law (2000-03) of the New York City Bar Association. He is a frequent speaker and writer on various immigration-related issues, including on administrative remedies and ethics, and is also an adjunct associate professor of Law at Brooklyn Law School, where he teaches a course entitled "Immigration and Work." Mr. Mehta received the AILA 2011 Michael Maggio Memorial Award for his outstanding efforts in providing pro bono representation in the immigration field.

    The opinions expressed in this article do not necessarily reflect the opinion of

  2. #2
    Donald Miller


    Can you give me please one logical reason why the US should feel any obligation to accept mentally incompetent immigrants? We don't accept individuals with identified transmissible diseases or other possible public charge disqualifiers. Certainly mental incompetents would fall into the public charge category.
    All such people originate in some country other than the US; it would seem logical that public support for them should come from their own countries, not from the American taxpayer.

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