Immigration Article of the Day: The Problem of Competency in Immigration Court

by Kevin Johnson

The Problem of Competency in Immigration Court by Elizabeth JordanNorthwestern University Law Review, Forthcoming


In criminal law, an individual must be deemed competent to stand trial, yet our immigration courts routinely order the deportation of incompetent noncitizens. A removal proceeding against a noncitizen – where an outcome of deportation often risks life-threatening harm – continues apace even if the noncitizen has been deemed incompetent by the immigration judge. In place of halting proceedings, the immigration court judge imposes “safeguards” pursuant to a provision of the immigration code that neither defines nor explains the term. In practice, judges’ application of the term “safeguards” is often absurd. The implications of continuing a proceeding against a noncitizen with a disability affecting competency are significant. Unlike criminal defendants, noncitizens facing removal carry the burden for much of the proceeding, so their participation and understanding is critical to having a fair shot. Yet noncitizens are routinely ordered deported even though they do not understand or meaningfully participate in removal proceedings. By unifying a small but rich literature from immigration, disability, and criminal competency scholarship and cases, this Article closes a gap: understanding how the machinations of the immigration legal system result in the removal of noncitizens whose disabilities rendered them incompetent. It takes stock of the immigration agency’s failure to answer foundational questions about how its competency framework should work. This shortcoming results in what I call “safeguards theater,” in which the agency pushes proceedings forward despite clear indications the noncitizen did not understand. This Article instead argues for the application of a disability lens. Federal disability law guarantees a person with a disability meaningful access to immigration court, so a removal proceeding after a competency determination must be accessible to the noncitizen. This Article’s proposal would curtail the agency’s reliance on safeguards theater and allow noncitizens meaningful judicial review of competency issues. Finally, the Article questions whether a person with a disability affecting competency should be subjected to removal proceedings at all.

This post originally appeared on Immigration Prof Blog Reprinted with permission.

About The Author

Kevin Johnson is Dean, Mabie-Apallas Professor of Public Interest Law, and Professor of Chicana/o Studies. He joined the UC Davis law faculty in 1989 and was named Associate Dean for Academic Affairs in 1998. Johnson became Dean in 2008. He has taught a wide array of classes, including immigration law, civil procedure, complex litigation, Latinos and Latinas and the law, and Critical Race Theory. In 1993, he was the recipient of the law school's Distinguished Teaching Award.

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