I’m not going to mince words. According to the Washington Post, assistant chief immigration judge Jack H. Weil offered testimony recently, contending that there must be a case-by-case basis determination of competency, even for 3- and 4-year-olds, despite the fact that “[i]n all of our policies, the overlying concern is due process.” Reportedly, Judge Weil claimed that, although it takes patience, “I have trained 3-year-olds and 4-year-olds in immigration law.” See https://www.washingtonpost.com/world...82d_story.html.

I don’t doubt that such statements may not “present an accurate assessment of my views on this topic,” as Judge Weil reportedly protested in an email to the Washington Post. Id. Nevertheless, there is no claim made that these ludicrous statements were not offered as part of Judge Weil’s deposition testimony on behalf of the EOIR. It should be plain that there is no context in which such statements could be viewed as rational. Id.

What is particularly incomprehensible about this deposition testimony from Judge Weil is that this very same judge has dedicated a considerable amount of his time and energy over the past 4 or 5 years shepherding through EOIR a nationwide plan to provide enhanced procedural protections to certain respondents who lack competency to represent themselves. If anyone should be sensitive to the complexity of removal proceedings, what is at stake in such proceedings, and the express need for competency to understand and meaningfully participate in those proceedings, it is Judge Weil.

Indeed, on April 22, 2013, the Office of the Chief Immigration Judge, in which Judge Weil serves, announced a “Nationwide Policy to Provide Enhanced Procedural Protections to Unrepresented Detained Aliens with Serious Mental Disorders or Conditions.” This policy, the outcome of a project on which Judge Weil worked personally, makes a qualified legal representative available in removal and custody redetermination proceedings if it is determined that a respondent with a serious mental disorder or condition is detained, unrepresented, and incompetent to represent him or herself. Phase 1 of the policy's implementation began on August 15, 2013.

Recognition of the complexity of immigration proceedings and the requirements of fundamental fairness and due process in relation to the competency of the respondent was expressly addressed by the Board of Immigration Appeals in 2011. In Matter of M-A-M-, 25 I&N Dec. 474 (BIA 2011), the Board held that to be competent to participate in an immigration proceeding, an individual 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 law. Id. at 479.

The core rights and privileges to which the Board refers, as addressed in Phase I of the EOIR’s Plan to Provide Enhanced Procedural Protections to Unrepresented Detained Respondents with Mental Disorders (“Plan”), include,
1. A rational and factual understanding of:
a. the nature and object of the proceeding;
b. the privilege of representation, including but not limited to, the ability to
consult with a representative if one is present;
c. the right to present, examine, and object to evidence;
d. the right to cross-examine witnesses; and
e. the right to appeal.
2. The reasonable ability to:
a. make decisions about asserting and waiving rights;
b. respond to the allegations and charges in the proceeding; and
c. present information and respond to questions relevant to eligibility for relief.

The Plan provides that a respondent “is incompetent to represent him or herself in a removal or custody redetermination proceeding if he or she is unable because of a mental disorder to perform any of the functions listed in the definition of competence to represent oneself.” Id. In the Plan, the term, “ ‘Mental disorder’ (including Intellectual Disability) is defined as a significant impairment of the cognitive, emotional, or behavioral functioning of a person that substantially interferes with the ability to meet the ordinary demands of living.” One might as well substitute the phrase “because of infancy or age” in place of “because of a mental disorder” language in in the Plan.

Equally of interest is the Plan’s advisal to immigration judges that they make a judicial inquiry that begins “by explaining to the respondent the purpose and process for conducting the judicial inquiry,” which includes a description of the purpose of the proceedings, e.g., “I am an Immigration Judge. My job is to decide whether you will be allowed to stay in the United States. I am going to hold a hearing to gather information from you and the representative of the Government to help me decide whether you will be allowed to stay in the United States.”

The suggested advisal text continues, “It is important that you understand what is happening in court. It is important that you understand what is being said about you. It is also important that you are able to tell your side of the story. To make sure that you are able to understand and tell your story, I am going to ask some questions about you and your case. I will use this information to decide whether you will need any special help in the hearing.”

The advisal then instructs the immigration judge to ask the respondent,
“Can you explain to me what I just said in your own words?

I’d love to see the transcript of those responses. Is the time it takes to individually question traumatized 3 and 4 year olds really the best way for immigration judges facing a 4-year case backlog at EOIR to spend their time?

As an attorney of over 35 years, who served as a Board Member on the Board of Immigration Appeals between 1995 and 2002, deciding over 20,000 appeals from the decisions of immigration judges, and as a former adjunct professor of law, I can say without hesitation that immigration law is extremely dense and the statute and regulations often are barely intelligible. Likewise, removal proceedings often are confusing and mystifying. To adults. To educated adults. To attorneys from other fields of practice volunteering pro bono. Too often, to some immigration attorneys regularly representing respondents in these proceedings. And even, to immigration judges.

The brains of 3 and 4 year olds are not developed to a point where they can fathom the goings on in immigration court, or represent themselves in any way, shape or form. The brains of adults should be better developed. It is inconceivable and everyone involved in defending the deposition should know better.