Immigration law recognizes that a foreign national must be competent to face removal (i.e., deportation) proceedings. When a respondent lacks competence, however, proceedings do not cease. Rather, the immigration judge is instructed to implement “safeguards” to ensure fair proceedings. The immigration framework for competency is incoherent because it does not require that “safeguards” resolve a respondent’s incompetence. Rather, they recommended “safeguards” that are clearly inadequate to remedy the deficits resulting in the respondent’s incompetence. Following this week’s decision in Matter of M-J-K- (see below), this post highlights the stark differences between how competency is handled in immigration versus criminal court.
What is competency?
To understand why competency law in immigration court is so flawed, it’s helpful to understand how competency functions in criminal court.
The concept of competency recognizes that participating in legal processes requires certain types of mental functioning. Our law recognizes, for example, that a party must be competent to enter into a contract. In both criminal and civil law, the basic concept of competence is this:
Someone lacks competence for a particular legal process when she lacks the functional abilities required to participate in that process.
Competence is not a uniform standard, since different legal processes require different types of functional abilities. In criminal proceedings, a defendant is competent to proceed to trial only if she has the “present ability to consult with [a] lawyer with a reasonable degree of rational understanding,” and a “rational as well as factual understanding of the proceedings.” Dusky v. U.S., 362 U.S. 402, 402 (1960) (per curiam).
The right to competence in criminal court is of course grounded in constitutional protection. The defendant has a constitutionally-protected right to be present in court – both physically and mentally – so that she can understand the proceedings, help counsel construct her defense, and engage in other procedures integral to her case (e.g., making decisions, examining evidence, cross-examining witnesses, and testifying). The core idea of competency determinations is to ensure that the defendant is meaningfully present and can meaningfully participate in the criminal case.
How competency works in criminal court
When a judge determines that a defendant is not competent to proceed, criminal proceedings are paused. Either attorney or the judge herself refers the defendant to undergo a psychological evaluation focused on the defendant’s present mental condition and competence to proceed to trial. A forensic psychologist with specialized training and experience in evaluating capacities associated with competence to proceed conducts the evaluation. The evaluation takes place either in correctional custody, on an outpatient basis (e.g., if the defendant has been released on their own personal recognizance), or in a psychiatric hospital. With rare exceptions, defense counsel attends the evaluation to ensure the defendant’s constitutional rights are protected. In most cases, results of the evaluation are summarized in a written report that is provided to the prosecuting attorney, defense counsel, and the presiding judge.
At the next pre-trial hearing, the judge rules on the defendant’s competence to proceed to trial based on the psychologist’s report and their own observations of the defendant’s in-court behavior. Judges tend to side with the psychological evaluator’s recommendation over 90% of the time.
If the judge determines that a defendant is not competent to proceed, then one of two things will happen:
- Charges are dismissed; or
- The defendant is sent to a psychiatric hospital to receive treatment to improve their mental condition so that mental illness symptoms no longer impair capacities requisite for their competence to proceed.
Inpatient treatment typically involves psychotropic medication (sometimes administered involuntarily, via forced injection), behavioral interventions, and education about courtroom procedures. The duration of competency restoration treatment is statutorily defined, and can range from a few weeks to several years. During restoration treatment, a psychologist periodically re-evaluates the defendant’s mental condition and capacities necessary to proceed to trial. Once the criminal judge determines that treatment has restored a defendant’s competence to proceed, only then will criminal proceedings resume.
Matter of M-A-M and competency in immigration court
Immigration and Nationality Act (INA) recognizes that it is unfair to proceed against a respondent who is incompetent. The Act requires that EOIR implement “safeguards” to protect the rights of a mentally incompetent respondent. INA 240(b)(3); 8 U.S.C. § 1229a(b)(3) (2006). But the INA sets forth no standard for determining when a respondent lacks competence, and little guidance on what safeguards are appropriate. In the 2011 case, Matter of M-A-M, 25 I. & N. Dec. 474, 475 (BIA 2011), the Board of Immigration Appeal held:
[T]he test for determining whether an alien is competent to participate in immigration proceedings is whether he or she has a rational and factual understanding of the nature and object of the proceedings, can consult with the attorney or representative if there is one, and has a reasonable opportunity to examine and present evidence and cross-examine witnesses.
This test is very similar to the Dusky standard used in criminal competency. The Board further held that when competence is found to be lacking, an immigration judge must take reasonable “safeguards” to ensure the fundamental fairness of the proceeding.
Matter of M-A-M suggests that an immigration judge should respond to a finding of incompetence by refusing to accept an admission from an unrepresented respondent, having a family member “assist” the respondent, or by having a guardian “participate” in the proceedings. These suggestions imply that incompetence is remedied when someone else appears with the respondent. In civil contexts an incompetent individual may operate a legal function through a proxy by appointment of a guardian. In such cases the guardian assumes the principal’s legal standing. Yet Matter of M-A-M does not require that the respondent have a guardian appointed – a family member is not necessarily authorized to act for the respondent, nor is the role of an attorney to do so.
Matter of M-A-M goes on to recommend the following safeguards:
- Continuing the case for “good cause shown;”
- Closing hearing to public;
- Waiving respondent’s attendance;
- Actively aiding in the development of the record, including examination and cross-examination of witnesses; and
- Reserving appeals rights for respondent.
The Matter of M-J-K- decision
Matter of M-J-K- involved a Jordanian citizen who was present in the United States since 1982, and placed into removal following an aggravated felony conviction. 26 I&N Dec. 773 (BIA 2016). “Based on concerns about the respondent’s behavior,” the IJ referred M-J-K- for a psychiatric evaluation. The respondent attended one hearing following that evaluation, but “engaged in obstructive behavior” and refused to attend several subsequent hearings.
The IJ determined that the respondent was not competent. This determination was made in the respondent’s absence, based primarily on documentary evidence available to the judge. Presumably the judge would also have relied on observations of M-J-K’s behavior before M-J-K stopped attending hearings. The decision does not specify why M-J-K stopped attending the hearings.
The IJ then made a record, explaining that he had considered a number of “safeguards,” but that these safeguards would be inadequate to ensure the fairness of the proceedings. He considered:
- “Obtaining mental health evaluations;”
- Changing venue to a mental health docket; and
- Granting continuances.
But the IJ – having been present with the respondent, having previously observed his behavior – determined that these “safeguards” would be inadequate.
The M-J-K- decision states that there was “no evidence about restoring competency to support administrative closure.” It’s unclear if this means there was no evidence about whether the respondent was or wasn’t restorable, or that whatever restoration evidence there was did not support administratively closing the case.
Having found all “safeguards” inadequate, the IJ terminated the proceedings without prejudice. The government then appealed.
The first question on review was the standard of review applicable to “safeguards” determinations. M-J-K- cites M-A-M for the proposition that IJs “have discretion to determine which safeguards are appropriate under the circumstances of a particular case.” The Board then reasoned that since discretionary decisions are reviewed de novo per 8 C.F.R. 1003.1(d)(3)(ii), that competency “safeguards” determinations are also subject to de novo review.
The Board then applied its de novo review to determine that safeguards were available that could have let the case go forward. Specifically, the Board reasoned that since a Qualified Representative was available, the “safeguard of legal representation” should have been applied. The Board reached this conclusion despite the fact that a medical expert specifically opined that such representation would be inadequate. It is unclear if there was any countervailing evidence. The Board reasoned that the representative’s ability to present “arguments” concerning removability and relief from removal “are not dependent on the ability to communicate with the respondent.” The Board made no observation about whether a representative’s ability to present evidence in support of such arguments might be impaired by an absent respondent. It is hard to understand how it could not be.
The safeguard approach is fundamentally incoherent because it does not even purport to remedy incompetence
Recall the the principal concern in competence is to protect a person’s ability to participate in a given legal process. The immigration statute recognizes that it is unfair to proceed against a respondent who cannot meaningfully participate in his removal case. And Matter of M-A-M sets forth the legal standard for determining whether the respondent has the required functional abilities to participate in his own defense. Yet none of the “safeguards” even purport to restore the respondent’s competence, meaning that he is still unable to meaningfully participate in his case.
Let’s consider the safeguards suggested by Matter of M-A-M and Matter of M-J-K-. None of these safeguards are likely to resolve the mental illness symptoms that rendered the respondent incompetent in the first place. Let’s look at some of them:
- Continuing the case for “good cause shown.” Unless a respondent were to receive psychotropic medication, therapy, or education in the meanwhile, what would be the purpose of continuing a hearing?
- Closing hearing to public. Unless a respondent’s mental illness symptoms are triggered by the presence of crowds, what would be the benefit of closing the proceedings?
- Waiving respondent’s attendance. This “safeguard” is especially absurd, since the whole point of competence is to ensure the respondent can meaningfully participate in the proceedings against them. Ensuring the respondent’s meaningful presence is the goal!
- Appointing counsel. Counsel’s raison d’etre is to advocate for the respondent as directed by the respondent. However, if the respondent is unable to express their preferences, then merely appointing counsel to represent an incompetent defendant will not ensure that the defendant’s best interests are served since the presence of counsel does not guarantee that a defendant is able to effectively communicate their preferences.
- Presence of friends or family members. Having a friend or family member represent the defendant’s is particularly meaningless. Unless he or she is a guardian, a “friend” or “family member” lacks the authority to speak on behalf of the respondent.
The Board offers no suggestions about how any of these safeguards would redress the initial concern for fairness: mental illness symptoms impeding the respondent’s inability to meaningfully participate in her own defense.
If it is unfair to proceed against someone determined to be incompetent, the only coherent remedy is to restore the functional abilities that made the person incompetent in the first place. One solution is to provide the person with treatment, including appropriate psychotropic medication, that could improve his mental functioning. That – of course – is what is done in criminal court. Another would be to restore legal functioning through the appointment of a guardian whose role is to operate as the respondent’s agent. This second solution is likely inadequate, however, since the respondent’s memory and ability to testify should be an integral part of meeting the M-A-M competence test. But the safeguards approach is incoherent because it does not even purport to restore the functioning that made the person incompetent in the first place.
M-J-K- compounds the problem by devaluing in-person observations of the respondent
As described above, competency examination is triggered – both in criminal and immigration court – when a judge or attorney perceives impairment in the defendant/respondent’s functioning. In criminal court, it often happens that a defendant will appear for arraignment, and his presentation will lead the judge to refer the individual for evaluation. That same judge will later review the evaluator’s report. Armed with the psychologist’s clinical opinions, the judge is uniquely well-positioned to forecast how the defendant is likely to function in the courtroom because she can actually observe the defendant.
M-J-K- places the appellate Board on the same level as the immigration judge when it comes to competency determinations. The Board’s de novo review gives no weight to judgment calls by the one adjudicator who could actually see what it was like for the respondent to try to participate in the case.
It is fundamentally unfair to deport an individual who cannot meaningfully participate in her own defense. Yet immigration law turns a blind eye when it comes to restoring a respondent’s competency before continuing with deportation proceedings. This striking inconsistency creates a legal process that is fundamentally flawed in how it treats mentally ill respondents.
Photo credit: JanPietruszka.
 Melissa L. Cox & Patricia Zapf, AN Investigation of Discrepancies between Mental Health Professionals and the Courts in Decisions about Competency, 28 law & psychol. rev. 109 (2004) (finding 99.6% agreement between judges and evaluators in Alabama); Keith R. Cruise & Richard Rogers, An Analysis of Competency to Stand Trial: An Integration of Case Law and Clinical Knowledge, 16 Behav. Sci. & L. 35 (1998) (above 90%); Ian Freckleton, Rationality and Flexibility in Assessment of Fitness to Stand Trial, 19 Int’l J. L. & Psychiatry 39 (1996) (above 90%).