Clapman: Hearing Difficult Voices

HearingDifficultVoices:TheDue
ProcessRightsofMentallyDisabled
IndividualsinRemovalProceedings
ALICECLAPMAN*

ABSTRACT
Every day, immigration judges face unrepresented respondents who

present signs of severe mental impairment and possible incompetence.
They are given no resources for, or guidance on, how to address the
situation. Every day, noncitizens with mental impairments are ordered
removedfromtheUnitedStateseventhough,iftheirstorieswereactually
heard, they might be found eligible for relief. This Article provides both
theoreticalandpracticalguidancetothedecisionmakerswhomustaddress
the problem. The Article describes the current situation, in whichvarious
adjudicators respond to the problem in various ways, often by glossing
over it. Next, the Article sets out a legal argument derived fromdifferent
strandsofdueprocessjurisprudence(dueprocessinremovalproceedings,
civil due process generally, and due process with respect to mentally
impaired litigants) for why additional procedural protections are
necessary. Finally, the Article identifies safeguards that would be feasible
andadequate,suchassettingaclearcompetencystandardrequiringboth
passiveandactiveabilities;imposingdisclosuredutiesontheDepartment
ofHomelandSecurityandinvestigativedutiesontheimmigrationjudges;
creating an expert panel within the Department of Justice to perform
competency evaluations; revising procedural rules to require judges to
focus on objective evidence where an applicant is incapable of satisfying
the current standards for credible testimony; providing for skilled, court
appointed representation where necessary (in some cases in a hybrid,
* Clinical Teaching Fellow, Center for Applied Legal Studies, Georgetown Law; incoming
Visiting Assistant Professor & Director, Immigrant Rights Clinic, University of Baltimore
School of Law; J.D. Yale Law School; B.A. Princeton University. I am grateful to Daniel
Hatcher,GeoffreyHeeren,DavidLuban,AndrewSchoenholtz,andPhilipSchragforvaluable
commentsand suggestions.This Articlewassupportedin partbyaresearchgrant from the
UniversityofBaltimoreSchoolofLaw.
373
374 NewEnglandLawReview v.45|373
guardianadvocaterole);andauthorizingimmigrationjudgestoterminate
proceedings in the rare case in which no other safeguard would be
adequate.
INTRODUCTION
C
arlos,1 an immigrant from Latin America who had lived in the
UnitedStatesfor24years,cametotheattentionoftheimmigration
authoritieswhenvoicesinhisheadtoldhimtosethimselfonfire.2
Thiswasnotthefirstorlasttimehewouldobeythesevoicesandattempt
suicide,3butitwasaturningpointinhislife.Thistime,hisactionsresulted
in a plea conviction of unlawfully causing a fire.4 Two years later, on the
basis of this conviction, the Department of Homeland Security (DHS)
tookhimintocustodyandbeganremovalproceedingsagainsthim.5
Likemostdetainedrespondents(approximatelyeightyfourpercent),6
Carloswasunrepresented.HedidnotinformtheImmigrationJudge(IJ)
that he suffered from chronic paranoid schizophrenia and frequently
hallucinated.7 Nor did the DHS trial attorney inform the IJeven though
the DHS was holding him in detention, treating him with increasing
dosages of psychotropic medications (which he sometimes refused), and
receiving medical treatment reports that Carlos was suffering from acute
1Namechangedtopreserveanonymity.
2See CAPITAL AREA IMMIGRANT RIGHTS (CAIR) COAL. & COOLEY, GODWARD, KRONISH,
LLP, PRACTICE MANUAL FOR PRO BONO ATTORNEYS REPRESENTING DETAINED CLIENTS WITH
MENTALDISABILITIESINIMMIGRATIONCOURTapp.23,at3,22(2009)[hereinafterCAIRCOAL.&
COOLEY, GODWARD, KRONISH, LLP], http://www.caircoalition.org/probonoresources/pro
bonomentalhealthmanual/(publishingaredactedcopyofCarlossMotiontoReopentothe
BoardofImmigrationAppeals(BIA)).Asexplainedbelow,manyfactsofthiscasearealso
knowntotheauthorfirsthand.
3Seeid.atapp.23,at22.
4Id.atapp.23,at2.
5Id.
Removal proceedings are held before an Immigration Judge (IJ), within the
ExecutiveOfficeforImmigrationReview(EOIR)oftheDepartmentofJustice(DOJ).See8
U.S.C. 1229a(a)(1) (2006). These proceedings are adversarial and relatively formal: An
attorneyrepresentstheDepartmentofHomelandSecurity(DHS)initseffortstoremovethe
respondent.See8C.F.R.1240.2(a)(2010).Respondentsareentitledtoretaincounselthrough
theirownefforts,butiftheycannotfindcounseltheymustpresenttheirowncase.8U.S.C.
1229a(b)(4)(A)(statingthatsuchcounselmaybepresentatnoexpensetotheGovernment).
6See NINA SIULC ET AL., VERA INST. FOR JUSTICE, IMPROVING EFFICIENCY AND PROMOTING
JUSTICE IN THE IMMIGRATION SYSTEM: LESSONS FROM THE LEGAL ORIENTATION PROGRAM 1
(2008), available at http://www.vera.org/download?file=1780/LOPpercent2BEvaluation_May
2008_final.pdf.
7CAIR COAL. & COOLEY, GODWARD, KRONISH, LLP,supranote2,atapp.23,at3(publishing
aredactedcopyofCarlosMotiontoReopentotheBIA).
2011 Hearing Difficult Voices 375
psychoticepisodes,hearingscreamingvoices,andunabletoeatorsleep.8
(Even more disturbing, knowing all this, the DHS still had Carlos sign a
waiverofhisrighttoseekcertainbenefits.)9TheIJdidnotmakeherown
inquiry, or attempt to obtain the state records that would have reflected
recentobservationsaboutCarlosssevere,uncontrolledmentalillness.10
Althoughtheregulationsforbidacceptingconcessionsofremovability
from incompetent respondents,11 and although the DHSs allegations of
removabilitywerequestionable,12theIJfoundCarlosremovablebasedon
his own admissions.13 Carlos applied for asylum and other fearbased
forms of relief from removal. He submitted a written statement that he
feared persecution in his home country for having evaded conscription.
The IJ called Carlos to the witness stand. During Carloss testimony, his
head was pounding, he was hearing voices, and he did not understand
what was happening.When asked whether he wasafraid to return to his
nativecountry,heansweredno.TheIJdeniedCarlossasylumapplication
basedinlargepartontheinconsistencybetweenhiswrittenstatementthat
hewouldbeindangerandhisapparentoraltestimonytothecontrary.14
Carlos remained in detention awaiting removal. His fellow detainees
noticedhisdelusional,selfdestructivebehaviorandknewsomethingwas
very wrong.15 I happened to be in regular contact with one of these
detaineesatthetime,andhetoldmeCarlossstory.Withhelpfromfellow
detainees and a changing coalition of advocates (of which I was one),
Carlos appealed his removal order up to the court of appeals, narrowly
avoidedremoval(theDHShadalreadysethisphysicaltransferinmotion
when a judicial stay halted it), and was eventually released into his
community after having suffered more than two years of immigration
detention. Had a concerned fellow detainee not found outside help for
Carlos, he would have disappeared into his native country, a country to
whichhefearedreturningandinwhichhemayhavebeenlockedupina
mentalinstitutionunderhorrificconditions.16
Nadine,17 another mentally disabled citizen, had better luck with the
removalsystem.Shewasnotdetainedandwaswellenoughtocontactthe
8Id.atapp.23,at2628.
9Id.atapp.23,at26.
10Id.atapp.23,at3.
118C.F.R.1240.10(c)(2010).
12See CAIR COAL. & COOLEY, GODWARD, KRONISH, LLP, supra note 2, at app.23, at 42
(publishingaredactedcopyofCarlosMotiontoReopentotheBIA).
13Id.atapp.23,at3.
14Id.
15Id.atapp.23,at4.
16Seeinfranote207andaccompanyingtext.
17Namechangedtopreserveanonymity.
Georgetown Law clinic (where I teach) before her immigration case had
been decided. Nadine was a political refugee from a dictatorial regime,
targeted because of her daughters political activities. The police had
imprisoned and raped Nadines daughter. After Nadine had helped her
daughter escape the country, the police had returned to Nadines home
andbeatenherunconscious.
Nadinehadsevereposttraumaticstressdisorder,aswellascognitive
limitations that we suspected were manifestations of a traumatic brain
injuryfromthebeating.Althoughsheseemedcompetenttomakeherown
decisionsinthecase,Nadinewasachallengingclientforvariousreasons.
Becauseofherownconfusionandfearofrecallingthepast,shecouldnot
helpherstudentrepresentativesframe,polish,orcorroborateherstoryof
pastandfearedpersecution.Vitaldetailswouldemergeonlyafterweeksof
interviewing; contact information for witnesses would come out
accidentally,almosttoolatetobeuseful.Duringinterviews,shecouldonly
last for short periods of time before she felt a burning in her head and
couldnolongerrespondtoquestions.Thestudentsexhaustedthemselves
trying to piece together a coherent narrative that would hold up at the
hearingandtosupportthatnarrativewithwitnessstatementsandphysical
andmentalevaluations.
At the hearing, the government produced documents contradicting
Nadines chronology of the case, and her answers on cross examination
madelittlesense.Thejudgewastroubledbyherunreliabilityasawitness.
Although IJs usually rule orally at the end of the hearing, he reserved
judgment and asked for written closings. In their closing, the students
made a strong factual and legal case for why the IJ should find Nadine
credible despite the flaws in her testimony. Ultimately, the IJ did grant
Nadineasylum.Ifallgoeswell,inafewyears,shewillbeacitizen.Ifeel
certain, though, that if she had appeared unrepresented, she would have
losthercaseandbeenorderedremoved.
Together,CarlossandNadinesstoriesillustratetheplightofmentally
disablednoncitizensintheremovalsystem.Individualsvarygreatlyinthe
degreeoftheirincapacitation,fromCarlos,whowascompletelyunableto
lookafterhisowninterests,toNadine,whosimplyneededextensivehelp
telling her story. Many are in detentionin 2008 the DHS estimated that
somewherebetween7571and18,929immigrationdetaineessufferedfrom
serious mental illness18and some are not. And some, like Nadine,
18HUMAN RIGHTS WATCH & AM. CIVIL LIBERTIES UNION, DEPORTATION BY DEFAULT:
MENTAL DISABILITY, UNFAIR HEARINGS, AND INDEFINITE DETENTION IN THE US IMMIGRATION

SYSTEM1617(2010)[hereinafterDEPORTATION BY DEFAULT], availableathttp://www.hrw.org/
sites/default/files/reports/usdeportation0710webwcover_1_0.pdf. Internal numbers cite a
higher figure of 15% of the detained immigrant population on any given day
approximately57,000peoplein2008.Id.(citingDanaPriest&AmyGoldstein,SuicidesPointto
manage to find outside help in time, whereas others, like Carlos, either
remain in detention and in legal limbo for years, or worse are removed
withouteverhavinghadameaningfulopportunitytobeheard.
Even under ordinary circumstances, immigration court proceedings
are so rushed that one IJ described them as being like holding death
penalty cases in traffic court.19 When mentally disabled individuals
appearbeforeIJs,oftenwithoutrepresentation,thoseIJsarewhollyunable
toaffordthemameaningfulhearing.Partoftheproblemisthelackoflegal
guidance. Thus far, all the relevant authoritiesCongress, the Board of
Immigration Appeals, the Attorney General, and the courts of appeals
have avoided setting any minimum standards of fairness in such
circumstances. Another part of the problem is a lack of any practical
guidance or resources that might enable judges to respond to signs of
incompetency.
InthisArticle,Ifirstsetoutthecurrentsituationinimmigrationcourts
with respect to mentally disabled respondents; then I address the legal
question of whether additional safeguards are required; and finally I
propose how, practically speaking, the courts could provide additional
safeguardssufficienttoensuredueprocess.
I. CurrentSituation
The Immigration and Nationality Act, in language dating from 1952,

directstheAttorneyGeneraltoprescribesafeguardstoprotecttherights
and privileges ofa noncitizen whereit is impracticable by reason of an
aliens mental incompetency for the alien to be present at the
proceeding.20 The Congress that enacted this provision did not specify
whatitmeantforanindividualtobepresent,andinparticularwhether
physical presence was sufficient or whether, in addition, some actual
capacitytoparticipatewasnecessary.Norhavetheotherbranchesclarified
this statutory issue. The Attorney General has, however, created some
limited safeguards for incompetent respondents, including: regulations
permitting other representatives to appear on the individuals behalf;21
special service requirements;22 and a requirement that the immigration
courtholdahearingonanyissueofremovabilityratherthanacceptingan
admission of removability from an unrepresented respondent who is
incompetent . . . and is not accompanied by an attorney or legal
GapsinTreatment,WASH.POST,May13,2008,atA1).
19JuliaPreston,LawyersBackCreatingNewImmigrationCourts,N. Y. TIMES,Feb.9,2010,at
A14 (quoting Dana L. Marks, Immigration Judge, President, National Association of

ImmigrationJudges)(referringtothenatureofasylumcases).
208U.S.C.1229a(b)(3)(2006).
218C.F.R.1240.4(2010).
22Id.103.5a(c)(2).
representative,anearrelative,legalguardian,orfriend.23Theregulations
do not establish any standard for competence or for doubt as to
competency. Nor do they establish procedures for inquiring into
competencyorprovideguidanceforhowtoproceedwhereanindividual,
whetherrepresentedorunrepresented,isfoundincompetentorotherwise
severely impaired. They do not specify, for example, whether the judge
shouldattempttosecurecounselorotherassistancefortheindividual,or
howthejudgeshoulddeveloptherecordifshecannotrelyprimarilyonthe
individualstestimonyassheusuallydoes.
Legislatorsandpolicymakers,itseems,havelongbeenawarethatthe
existing regulations are insufficient. More than a decade ago, the
Department of Justice (DOJ) solicited comments on whether to
promulgate regulations for appointing guardians ad litem (GALs)24 in
removalproceedings.25Veryfeworganizationsrespondedonthesubjectof
GALsformentallydisabledrespondents,probablybecauseadvocateswere
farmoreconcernedaboutothercontemporaneouschangesinthelawsuch
as the creation of a oneyear filing deadline for asylum applications.26
Several organizations expressed vague approval of the idea of a GAL
program,whileafewcautionedthatsuchaprogramwouldnotinandof
itselfsolvetheproblem.27TheDOJsubsequentlyundertookoverthirteen
yearsagotofurtherexaminethecomplexandsensitiveissue.28
More recently, some members of Congress have expressed concern
aboutthelackofprogressonthisissue.InFebruary2009,representatives
introducedlanguageintoanappropriationsbillencouragingtheExecutive
23Id.1240.10(c).
24Aguardianadlitemis[a]guardian,usu[ally]alawyer,appointedbythecourttoappear
inalawsuitonbehalfofanincompetentorminorparty.BLACKSLAWDICTIONARY774(9th
ed.2009).
25See Inspection and Expedited Removal of Aliens; Detention and Removal of Aliens;
ConductofRemovalProceedings;AsylumProcedures,62Fed.Reg.444,448(Jan.3,1997).
26Seeid.at463.
27Severalorganizationsfiledcommentsinresponseto62Fed.Reg.444withtheDirectorof
PolicyDirectivesandInstructionsBranchoftheINSin1997.Foranexampleofcomments,see
Letter from Florence Immigrant & Refugee Rights Project, Inc., to Dir. Policy Directives &
Instructions Branch, INS (Jan 31, 1997) (on file with author); Letter from Gay Mens Health
Crisis, Inc., to Dir. Policy Directives & Instructions Branch, INS (Jan. 30, 1997) (on file with
author); Letter from Lutheran Immigration & Refugee Serv., to Dir. Policy Directives &
Instructions Branch,INS(Jan.31,1997)(onfilewithauthor); LetterfromMass.LawReform
Inst.,toDir.PolicyDirectives&InstructionsBranch,INS(Jan.31,1997)(onfilewithauthor);
Letter from U.S. Comm. For Refugees, to Dir. Policy Directives & Instructions Branch, INS
(Jan.29,1997)(onfilewithauthor).
28See
Inspection and Expedited Removal of Aliens; Detention and Removal of Aliens;
Conduct of Removal Proceedings; Asylum Procedures, 62 Fed. Reg. 10312, 10322 (Mar. 6,
1997).
Office for Immigration Review (EOIR) to work with experts and

interested parties in developing standards and materials for immigration
judgestouseinconductingcompetencyevaluationsofpersonsappearing
beforethecourts.29Thislanguage,however,wasnotincludedinthefinal
version of the legislation.30 Further, in December of 2009 representatives
instructed EOIR to report on what steps [the DOJ] has taken to provide
safeguards for the rights of aliens judged to be mentally incompetent, as
requiredby8U.S.C.1229a(b)(3),31buteventhishesitantlanguagewasleft
out of the final version of that appropriations bill.32 For its part, EOIR
recently added a section on mental incompetence to its Immigration Judge
Benchbook,suggesting,asbestpractices,thatjudgesus[e]direct,simple
sentences, build a very good record, and consider appropriate and
necessaryactionssuchasattemptingtorecruitrepresentationorgrant[]
multiple continuances with the goal of securing representation, being
mindful, however, of the importance of deciding detained cases
expeditiously.33 The Benchbook also suggests that termination might be
appropriate in some cases, while acknowledging that the Board of
ImmigrationAppeals(BIAorBoard),whichitselfispartofEOIR,has
not upheld a case that terminated proceedings based ona theory that the
respondent was so incompetent as to render the proceedings unfair.34
Thesetentativehalfmeasuressuggestthepoliticalbranchesrecognizethe
problem as significant but lack the consensus, political will, or both to
addressit.
Every day, meanwhile, individuals who manifestly lack the ability to
defend their own rights appear in immigration court. Judges have
responded inconsistently.35 Some have contacted nonprofit legal service
29155CONG.REC.H1762(dailyed.Feb.23,2009).
30Compare id., with Omnibus Appropriations Act of 2009, Pub. L. No. 1118, 123 Stat. 524,
570.
31155CONG.REC.H13884(dailyed.Dec.8,2009).
32Compare id., with Consolidated Appropriations Act, 2010, Pub. L. No. 111117, 123 Stat.
3034,3123.
33Exec.OfficeforImmigrationReview,DeptofJustice,MentalHealthIssues,IMMIGRATION
JUDGE BENCHBOOK, http://www.justice.gov/eoir/vll/benchbook/tools/MHI/index.html (last

visitedApr.8,2011).
34Id.IJscanterminateproceedingsattherequestofeitherpartyforexample,becausea
chargingdocumentisdefective,DHShasnotmetitsburdenofestablishingremovability,or
forvariousotherreasons.SeeExec.OfficeforImmigrationReview,DeptofJustice,Motions,
IMMIGRATION JUDGE BENCHBOOK, http://www.justice.gov/eoir/vll/benchbook/tools/Motions%
20to%20Reopen%20Guide.htm (last visited Apr. 8, 2011). Termination does not necessarily
preventDHSfrominitiatingnewproceedingsatanytime,althoughatleastonecourthasheld
that the government cannot reopen proceedings based on evidence it could have discovered
priortotermination.RamonSepulvedav.INS,743F.2d1307,130910(9thCir.1984).
35How IJs and DHS are treating respondents with mental impairments, and how they
should be treating them, are extremely sensitive issues at the moment, in part because the
providers or individual private attorneys to obtain representation for a

potentially incompetent respondent,36 administratively terminated or
closed proceedings37 or ordered the DHS to conduct a competency
evaluation and/or secure legal representation for the individual.38 Others
have granted multiple continuances in the hopes that the respondents
mental state will change or that he will miraculously find his own
counsel.39Toomanyhavedonenothingandsimplytreatedtheindividual
like any other respondent in proceedingsparticularly when the
individualsdisabilityisnotnoticeablydisruptive.40TheDHS,foritspart,
respondentsarethesubjectofcurrentandpotentiallitigationandinpartbecausetheircases
raisethornyissuesabouthowtoallocatescarceresources.Theauthorconductedanumberof
interviewstogatherinformationaboutthecurrentsituationandabouttheconcernsofinside
actors, but these individuals were only willing to share their thoughts and information
anonymously.
36Telephone Interview with anonymous government official (Oct. 15, 2010) (notes on file
with author); Telephone Interview with anonymous private immigration attorney (Aug. 24,
2010)(notesonfilewithauthor);seealsoTEX. APPLESEED, JUSTICEFOR IMMIGRATIONS HIDDEN
POPULATION 57 (2010), available at, http://www.texasappleseed.net/index.php?option=com
_docman&task=doc_download&gid=313&Itemid= (describing one case in which the court
heldsixhearingswithnoprogressbeforelocatingprobonocounselfortherespondent(who
wasdetainedallthewhile)).
37See, e.g., First Amended ClassAction Complaint for Declaratory and Injunctive Relief
and Petition for Writ of Habeas Corpus at 4, FrancoGonzales v. Holder, No. 10CV02211
(C.D. Cal. Nov. 2, 2010) [hereinafter FrancoGonzales Complaint] (on file with author)
(describing an administratively closed case in which, after closure, the plaintiff remained in
detention nearly five years until, shortly after filing a complaint in federal court, he was
released); CAIR COAL. & COOLEY, GODWARD, KRONISH, LLP, supra note 2, at app.16, at 23
(publishing a redacted Decision of the Immigration Judge from New York, New York).
Administrativeclosure,incontrastwithtermination,doesnotresolveDHSschargesagainst
the respondent but merely removes a case from the judges docket with the consent of both
parties. DEPORTATION BY DEFAULT, supra note 18, at 74. Either party can request that the
proceedingsberecalenderedatanytime.Ifarespondentisinimmigrationdetentionwhenhis
case is closed, he remains in detention unless he successfully applies for bond. 8 C.F.R.
1003.19 (2010). In certain circumstances, however, the IJ would not have any authority to
order him released. See id. 1003.19(h)(2)(i). Some mentally disabled individuals have
languishedindetentionforyearsbecausetheircaseswereclosed.DEPORTATIONBY DEFAULT,
supra note 18, at 74. Although this issue is beyond the scope of the Article, an important
regulatoryreformwouldbetogiveIJsgreaterauthoritytoorderrespondentsreleased.
38See, e.g., CAIR COAL. & COOLEY, GODWARD, KRONISH, LLP, supra note 2, at app.17, at 3
(publishingaredactedInterimOrderoftheImmigrationJudge,Arlington,VA).
39Onejudge,facingarespondentwhowaspreviouslydeclaredincompetenttostandtrial
on criminal charges and was appearing by videoconference from a psychiatric hospital,

granted the respondent three continuances to find an attorney, and when that failed the IJ
proceeded to hold a hearing anyway and order the respondent removed. See Mohamed v.
TeBrake,371F.Supp.2d1043,1047(D.Minn.2005),vacated,Mohamedv.Gonzales,477F.3d
522,525(8thCir.2007).
40See, e.g., Amended Order Re Plaintiffs Motion for a Preliminary Injunction, at 68,
hasdisavowedanyobligationtoraisementalcompetencyissueswiththe
court.41 And in some cases, IJs have even allowed detention and removal
officers from the DHS to appear on behalf of disabled individuals (as their
custodians)athearingsinwhichaDHSattorneyisarguingforremoval42
as clear a conflict of interest as can be imagined but one expressly
authorizedbythecurrentregulations.43
Similarly, the BIA has taken various positions on the issue of
incompetency, always in unpublished, non precedential decisions. The
Board has: remanded cases where a judge failed to determine
competency;44instructedjudgestotakereasonablemeasurestoobtainan
attorneyorotherrepresentativetoassistarespondent;45orderedtheDHS
to appoint an attorney;46 instructed judges to proceed with the sole
FrancoGonzales v. Holder, No. CV 1002211 DMG (DTB) (C.D. Cal. 2010); CAIR COAL. &
COOLEY, GODWARD, KRONISH, LLP, supra note 2, at app.22, at 410 (publishing a redacted
Appeal Brief of Respondent to the BIA, In re RH (seeking appeal based on IJs failure to
inquireastorespondentsmentalcapacity));seealsoDEPORTATIONBY DEFAULT, supranote18,
at32(quotingaprivateattorneysobservationthat[u]nlesstheyareactuallyyellingatyouor
notparticipating,apersonwithmentalillnesswontberecognized).IJsmayfeelconstrained
in their response by BIA caselaw holding that they lack any jurisdiction to decide
constitutional issues such as whether the current regulations fail to provide adequate
safeguards. See In re FuentesCampos, 21 I. & N. Dec. 905, 912 (B.I.A. 1997). And although
thereisnoreasonEOIRcouldnotapplytheavoidanceofconstitutionaldoubtcanonwhen
interpreting statutes and regulations, the BIA has never done so in a published opinion.
SeveralBIAMembershave,however,joinedindissentscitingthiscanon.See,e.g.,InreRojas,
23I.&N.Dec.117,13839(B.I.A.2001)(Rosenberg,BoardMember,dissenting);InreGarvin
Noble,21I.&N.Dec.672,699702(B.I.A.1997)(Rosenberg,BoardMember,dissenting);Inre
ValdezValdez,21I.&N.Dec.703,718(B.I.A.1997)(Rosenberg,BoardMember,dissenting).
41SeeBriefforAm.ImmigrationCounciletal.,asAmiciCuriaeSupportingRespondentat
7, In re LT (Sept. 14, 2010) [hereinafter Brief for AIC], available at http://www.legalaction

center.org/sites/default/files/docs/lac/MatterofLT91410.pdf; DEPORTATION BY DEFAULT,
supra note 18, at 34; Emily Ramshaw, Mentally Ill Immigrants Have Little Hope for Care When
Detained,DALL. MORNING NEWS,July13,2009,availableat2009WLNR13763431(notingthat,
where a detainee is diagnosed with mental illness, its rare for DHS to disclose this
diagnosistothecourt).
42Brief for AIC, supra note 41, at 2224; FrancoGonzales Complaint, supra note 37, at 5;
TelephoneInterviewwithanonymous governmentlawyer(Oct.15,2010)(notesonfilewith
author).
43See 8 C.F.R. 1240.4 (2010) (stating that where all other representatives may be
unavailable the custodian of the respondent shall be requested to appear on behalf of

respondent).Asmanyimmigrantsinremovalproceedingsaredetained,theircustodianisa
DHSofficer.BriefforAIC,supranote41,at22.
44See,e.g.,InreGreenTatum,2010WL3536700,at*1(B.I.A.Aug.13,2010).
45See, e.g., CAIR COAL. & COOLEY, GODWARD, KRONISH, LLP, supra note 2, at app.18, at 2
(publishingaredactedDecisionoftheBoardofImmigrationAppeals).
46See,e.g.,id.,atapp.21,at3(publishingaredactedDecisionoftheBoardofImmigration
AppealsfromDec.8,2003).
safeguard ofnot accepting admissions from anincompetent respondent;47

reversed decisions terminating proceedings (in other words, considered
and rejected the position that removal ought to be halted because of
competencyissues);48andaffirmedremovalorderswherethejudgefailed
to adapt the hearing in any way.49 Courts of appeals, for their part, have
acknowledgedinpassingthatmentallyincompetentnoncitizensmightbe
entitledtosomeadditionalprotections,whileskirtingtheissueinvarious
waysfor example, by finding that counsel had effectively presented the
petitioners best case in immigration court,50 that a petitioner failed to
present sufficient evidence of mental incompetency or of prejudice,51 or
47See,e.g.,id.,atapp.19,at3(publishingaredactedDecisionoftheBoardofImmigration
AppealsfromFeb.3,2006(remandingthecasetoanIJfornewproceedingsandorderingthat
suchproceedingsshouldcomplywith8C.F.R.1240.10(c))).8C.F.R.1240.10(c)requiresthat
[t]heimmigrationjudge...notacceptanadmissionofremovabilityfromanunrepresented
respondentwhoisincompetent.8C.F.R.1240.10(c).
48SeeInreJFF,23I.&N.Dec.912,91415(A.G.2006)(recountingproceduralhistoryof
case,inwhichIJhadterminatedproceedingsbasedontherespondentsmentalincompetence
and theBIA hadreversed);DEPORTATION BY DEFAULT,supra note18,at49([T]heDHSand
BoardofImmigrationAppealshavebothrebukedIJsforactivelyengaginginfactfindingand
addingtotherecordinappellatedecisions,resultingintheassumptionthatjudgeswhoassist
an unrepresented person with diminished capacity will have their decisions overturned.);
Exec. Office for Immigration Review, Dept of Justice, In re SY, IMMIGRATION JUDGE
BENCHBOOK 45 (June 3, 2009), http://www.justice.gov/eoir/vll/benchbook/tools/MHI/
templates/SY%20%28BIA%20June%203,%202009%29.pdf (publishing a redacted decision of
the Board of Immigration Appeals reversing a termination order where incompetent
respondentwasrepresentedandhadfamilymemberspresent).
49See
Mohamed v. TeBrake, 371 F. Supp. 2d 1043, 1045 (D. Minn. 2005) (noting BIA
affirmance of removal order issued against unrepresented, disabled individual with no
competency assessment) vacated, Mohamed, 477 F.3d 522, 525 (8th Cir. 2007); CAIR COAL. &
COOLEY, GODWARD, KRONISH, LLP, supra note 2, at app.23, at 45 (publishing a redacted
RespondentsMotiontoReopen tothe BoardofImmigration Appeals,Mar.2008(appealing
BIA summary affirmance of IJs decision despite IJs failure to make a competency
determination)).
50SeeNeeHaoWongv.INS,550F.2d521,523(9thCir.1977).
51SeeMuozMonsalvev.Mukasey,551F.3d1,6(1stCir.2008);Mohamed,477F.3dat527;
Nelsonv.INS,232F.3d258,26162(1stCir.2000).Inanunpublisheddecision,Margaryanv.
Mukasey,aNinthCircuitpanelremandedanadversecredibilitydetermination,reasoningthat
the petitioners inconsistencies might have been a result of mental impairment or
incompetence.261F.Appx44(9thCir.2007).Thecourtalsofoundthat[a]sylumregulations
recognize that the interests of an incompetent person involved in adversary proceedings
should be represented by a party who possesses adequate discretion and mental capacity,
citing to 8 C.F.R. 1240.4, which permits representatives to appear on behalf of a mentally
incompetent individual or, in the alternative, provides that the court should request that a
custodian appear on his behalf. Id. at 46. The fact that the court reached this result in an
unpublished decision and declined to base its remand on any due process or statutory
ground, or decide whether, when, and how IJs must hold competency hearings, suggests a
reluctance (for whatever reason) to set a precedent that would require massive systemic
thatapetitionerwasentitledtoremandonothergrounds.52
In other words, there is no agency or judicial consensus as to what
evidence casts doubt on competency or how IJs should respond to such
evidence. Given the complexity of the problem and the variety of
circumstances that may affect the fairness of any particular hearing, a
legislative or regulatory response is necessary. On the assumption that
sucharesponsewillonlycomewithjudicialprompting,Inowturntothe
legalargumentforreform.
II. LegalAnalysis
Although the particular legal issue of what safeguards are due to

incompetent or otherwise disabled individuals in removal proceedings is
unresolved, three interrelated strands of law provide guidance: first, the
rights of noncitizens in removal proceedings generally; second, the rights
ofindividualsinvolvedincivilmatterswherefundamentalinterestsareat
stake; and third, the rights of individuals in both civil and criminal
proceedings who suffer from mental disabilities such that they cannot
protecttheirowninterests.53Iwilldiscusstheseinturn.
change. Two district courts have found that mental incompetence, or signs of possible
incompetence, does trigger additional requirements, although one of these cases has been
vacated and the other has yet to be reviewed by the Court of Appeals. See Mohamed, 371 F.
Supp.2dat1047(holding,basedontheregulations,thatitisanabuseofdiscretionwhenan
immigrationjudge,facedwithevidenceofaformaladjudicationofincompetenceormedical
evidence that an alien has been or is being treated for the sort of mental illness that would
renderhimincompetent, failsto makeatleastsomeinquiry),vacated,Mohamed, 477F.3dat
525(explainingthatthedistrictcourttransferredthecasetocircuitcourtbasedon106ofthe
Real ID Act of 2005, which stripped the district courts of jurisdiction over the matter);
AmendedOrderRePlaintiffsMotionforaPreliminaryInjunctionat38,FrancoGonzalesv.
Holder, No. CV 1002211 DMG (DTB) (C.D. Cal. 2010) (holding, based on the Rehabilitation
Act,thatEOIRwasrequiredtoprovideQualifiedRepresentativesformentallyincompetent
respondentsintheirremovalproceedings).
52Ruiz v. Mukasey, 269 F. Appx 616, 619 (9th Cir. 2007) (declining to reach due process
argument because remand was appropriate based on IJ error as to the nature of petitioners
conviction).Onedistrictcourtdeniedahabeaspetitionbyamentallyillimmigrationdetainee,
finding that the petitioner was not entitled to any additional safeguards because, although
plainly delusional at his immigration hearing, he had been competent enough to articulate
hisbeliefthathewouldbepersecutedinTurkey.SeeOrderonReportandRecommendation,
at8,Gokcev.Ashcroft,No.02CV02568ORD(W.D.Wash.2003).Thecourtsopinion,which
issomewhatshockingforitsminimalistreadingofthedueprocessclause,canbereadeither
asestablishingahollowstandardofcompetencyorasholding,morebroadly,thatwhatever
the capacity of an individual respondent, the system complies with due process simply by
providing him with various (useless) procedural protections such as the right to present
evidence.Id.at89(rejectingreportandrecommendationbymagistratejudgethatthecourt
appointcounselundertheCriminalJusticeAct).Eitherinterpretationisinconsistentwiththe
dueprocesscaselawsetforthininfrasectionII.
53There are statutory arguments available as well. One would be based on 8 U.S.C.
A. DueProcessinImmigrationProceedings
The principle that removal cases are civil in nature and therefore
subject only to limited dueprocess requirements has survived for over a
hundredyearseventhoughitwasfirstarticulatedinadecisionthatisnow
infamous(atleastamongacademics)foritsopenxenophobia:thesocalled
Chinese Exclusion case.54 The author of that oftquoted opinion, Justice
Field, reasoned that the congressional power to exclude noncitizens was
inherent in national sovereignty, to protect against aggression and
encroachment... from vast hordes of foreigners of a different race
crowding in upon us.55 Subsequent decisions such as Nishimura Ekiu v.
UnitedStatesreinforcedthisprincipleofnationalsovereignty,withoutthe
inflammatory rhetoric, by tying the executive and congressional powers
over immigration to their foreignrelations powers.56 These decisions all
assumed without explanation that, for the governments powers to be
effective,removalproceedingshadtobecivilratherthancriminalinnature
(and therefore subject to minimal standards and minimal judicial
oversight).
The Court began to moderate its position toward the middle of the
twentieth century. Without casting aside the civilcriminal distinction, it
nonethelessbeganscrutinizingexecutiveactionsmorecloselyandreading
statutoryprotectionsmoreexpansivelyinrecognitionofthedrastic57and
grave58 nature of removal, and of the high and momentous stakes in
removal proceedings.59 In Bridges v. Wixon, the Court sounded poised to
overridethecriminalcivildistinctionwhenitreversedadeportationorder
1229a(b)(4)(B)(2006),whichguaranteesthatrespondentshaveareasonableopportunityto
presenttheircase,andanotherisbasedon1229a(b)(3),whichdirectstheAttorneyGeneral
to prescribe safeguards to protect mentally incompetent respondents. See 8 U.S.C.
1229a(b)(4)(B), (b)(3) (2006). These provisions, in their vagueness, merely restate the Due
Process Clause. See U.S. CONST. amend. XIV 1. Another statutory protection is based on
section504oftheRehabilitationActof1973anditsimplementingregulations,whichrequire
federal agencies in the course of operating systems such as immigration courts to provide
reasonable accommodations to individuals with disabilities. 29 U.S.C. 794(a); see also
AmendedOrderRePlaintiffsMotionforaPreliminaryInjunction,at2638,FrancoGonzales
v. Holder, No. CV 1002211 DMG (DTB) (C.D. Cal. 2010) (finding that the respondents
qualified for reasonable accommodations under the Rehabilitation Act). The intricacies of
theselegalargumentsarebeyondthescopeofthisArticle.
54SeeChaeChanPingv.UnitedStates(ChineseExclusionCase),130U.S.581(1889).
55Id.at606.
56142U.S.651,659(1892).
57FongHawTanv.Phelan,333U.S.6,10(1948).
58Jordanv.DeGeorge,341U.S.223,231(1951).
59Delgadillov.Carmichael,332U.S.388,391(1947).SeealsoNgFungHov.White,259U.S.
276,284(1922)(recognizingthatdeportationmayresultalsoinlossofbothpropertyandlife;
orofallthatmakeslifeworthliving).
based on unsworn statements about the petitioners alleged communist

affiliation,60reasoning:
Here the liberty of an individual is at stake. . . .Though
deportation is not technically a criminal proceeding, it visits a
greathardshipontheindividualanddepriveshimoftherightto
stayandliveandworkinthislandoffreedom.Thatdeportation
isapenaltyattimesamostseriousonecannotbedoubted.61
In view of the stakes, the Court warned, [m]eticulous care must be

exercised lest the procedure by which [an individual is removed]... not
meettheessentialstandardsoffairness.62
Although the civilcriminal distinction survived Bridges v. Wixon (and
isinperfecthealth),theCourthascontinuedtorespondtothefundamental
interests at stake in removal proceedings. Given that deportation is a
drastic measure and at times the equivalent of banishment or exile, the
Court has applied a rule of lenity in interpreting removal provisions
similartothatincriminalproceedings,construingstatutoryambiguitiesin
thenoncitizensfavor.63[I]nviewofthegravenatureofdeportation,the
Courthasalsoappliedthevoidforvaguenessdoctrine.64TheCourthas
adoptedapresumptionagainstretroactivitysomewhatakintotheexpost
factoprohibitionincriminallaw,tonarrowlyconstruethetemporalscope
of various criminal bars to discretionary relief from removal.65 And most
recently,inPadillav.Kentucky,theCourtacknowledgedthatdeportation
is. . . intimately related to the criminal process and, as a consequence,
held that noncitizen criminal defendants have a constitutional right to
effectivecounselingontheimmigrationconsequencesofaconviction.66
Individual lower courts and appellate judges at times (though not
recently)haveshownevenmorewillingnesstoquestionthecategorization
ofimmigrationlawasanordinarycivilproceeding,atleastwithrespectto
legalresidentsfacingremovalasaconsequenceofacriminalconviction.In
AguileraEnriquezv.INS,forexample,theSixthCircuitrecognizedthatdue
processwouldrequireappointmentofcounselforanoncitizeninremoval
proceedings if that noncitizen would require counsel to present his
positionadequatelytoanimmigrationjudge.67Thecourtnotedpriordicta
to the contrary, but dismissed this dicta as rest[ing] largely on the
outmodeddistinctionbetweencriminalcases(wheretheSixthAmendment
60326U.S.135,15657(1945).
61Id.at154;seealsoNgFungHo,259U.S.at284.
62Bridges,326U.S.at154.
63FongHawTanv.Phelan,333U.S.6,10(1948)(citingDelgadillo,332U.S.at391).
64Jordanv.DeGeorge,341U.S.223,231(1951).
65INSv.St.Cyr,533U.S.289,31526(2001).
66130S.Ct.1473,148182(2010).
67516F.2d565,568n.3(6thCir.1975).
guaranteesindigentsappointedcounsel)andcivilproceedings(wherethe
Fifth Amendment applies).68 (The court denied the petition for review,
however,becauseitfoundthatunderthelaw,therewasnoreliefforwhich
counsel could have helped AguileraEnriquez apply.)69 The dissent in
AguileraEnriquez went even further, rejecting the majoritys casebycase
approachandreasoningthat[a]deportationproceedingsojeopardizesa
resident aliens basic and fundamental right to personal liberty70 that
onlyaperserulerequiringappointmentofcounselwillassurearesident
aliendueprocessoflaw.71AndinUnitedStatesv.CamposAsencio,another
court remanded a case to district court after holding that, depending on
how the facts of the case developed, the governments refusal to provide
counselforanoncitizeninremovalproceedingsmighthaveamountedtoa
dueprocess violation.72 These cases, now decades old, offer a glimpse of
whatthelawmightlooklikeifcourtsactuallymeasuredtheprocessduein
removalproceedingsbythegravityoftheinterestsatstake.
Thus far, however, the special status of immigration proceedings has
translated into very few procedural protections. Principally, individuals
can reopen proceedings if the representation they received was
ineffective;73theimmigrationjudgehasanaffirmativedutytodevelopthe
record;74 and nonEnglishspeaking respondents have a right to accurate
and complete translation during proceedings.75 Whether these protections
could be expanded to include counsel under certain circumstances
68Id.
69Id.at569.
70Id.at571(DeMascio,J.,dissenting).
71Id.at573.
72822F.2d506,509(5thCir.1987).
73Courts have limited this right with various qualifications. See Jezierski v. Mukasey, 543
F.3d 886, 890 (7th Cir. 2008) (denying a general right to effective assistance, but recognizing
that [t]he complexity of the issues, or perhaps other conditions, in a particular removal
proceeding might be so great that forcing the alien to proceed without the assistance of a
competent lawyer would deny him due process of law by preventing him from reasonably
presenting his case); Khan v. Atty Gen., 448 F.3d 226, 236 (3d Cir. 2006) (holding that to
make out an ineffective assistance claim a petitioner must show (1) that he was prevented
fromreasonablypresentinghiscase(quotingUspangov.Ashcroft,289F.3d226,231(3dCir.
2002))and(2)thatsubstantialprejudiceresulted(quotingAnwarv.INS,116F.3d140,144
(5th Cir. 1997))); Hernandez v. Reno, 238 F.3d 50, 55 (1st Cir. 2001) ([W]here counsel does
appear for the [alien], incompetence in some situations may make the proceeding
fundamentallyunfairandgiverisetoaFifthAmendmentdueprocessobjection.);InreLozada,
19I.&N.Dec.637,639(B.I.A.1988)(settingforthstrictproceduralrequirements).
74The IJs duty to develop the record derives partly from 8 U.S.C. 1229a(b)(1), which
authorizesandinstructsIJstoreceiveevidence,andinterrogate,examine,andcrossexamine
the alien and any witnesses, but also from the Due Process Clause. See, e.g., Jacinto v. INS,
208F.3d725,72728,732(9thCir.2000)(quoting8U.S.C.1229a(b)(1)(2006)).
75PerezLastorv.INS,208F.3d773,778(9thCir.2000).
dependsonasecondlineofcaselawtowhichInowturn:civildueprocess
whereimportantindividualinterestsareatstake.
B. CivilDueProcess
The Supreme Court has required appointment of counsel in certain

highstakes civil proceedings: for example, in involuntarycommitment
proceedings76 and in juveniledelinquency proceedings.77 In Lassiter v.
Department of Social Services, a divided Court drew a line around these
precedents, based on the fact that they all concerned a threatened
deprivationofphysicalliberty.78TheCourtheldthat,unlikeindividualsat
riskoflosingtheirphysicalliberty,indigentparentsfacingastateinitiated
proceeding for termination of parental rights were not categorically
entitled to counsel.79 Instead, such cases would be evaluated individually
under the general Mathews v. Eldridge factors governing what protections
are constitutionally required for any particular civil procedure: (1) the
privateinterestsatstake;(2)thegovernmentsinterests;and(3)theriskof
anerroneousdecisionintheabsenceofthesafeguardatissue.80Inatwist
on Mathews, however, these factors would be considered against a
presumptionthatcounselisnotrequiredifphysicallibertyisnotatstake.81
Interestingly, state high courts have proved far more willing than the
Lassiter Court to require appointment of counsel in civil proceedings
involvingparentalrightsorotherfundamentalinterests,butthisislimited
consolationforunsuccessfulfederallitigants.82
Lassitermightnotapplytoremovalproceedingsbecause,incontrastto
the termination of parental rights, removal arguably implicates physical
liberty.83 In Bridges v. Wixon, for example, the Court characterized the
76SeeVitekv.Jones,445U.S.480,49697(1980).
77SeeInreGault,387U.S.1,41(1967).
78452U.S.18,26(1981).
79Id.at31.
80Id.(citingMathewsv.Eldridge,424U.S.319,335(1976)).
81Id.
82See,e.g.,InreK.L.J.,813P.2d276,279(Alaska1991);Stateexrel.Johnson,465So.2d134,
138(La.Ct.App.1985);cf.Lavertuev.Niman,493A.2d213,218(Conn.1985)(providingan
indigentdefendanttherighttocounselinpaternityproceedings);Corrav.Coll,451A.2d480,
487(Pa.Super.Ct.1982)(grantingablanketrighttocounselforputativefathersinpaternity
actions).
83Lassiter comes up only twice in the numerous discussions of due process in removal
proceedings: one Supreme Court case and one court of appeals case, both citing Lassiter in
passing fortheprinciplethat[t]heconstitutionalsufficiencyofproceduresprovidedinany
situation...varieswiththecircumstances.Landonv.Plasencia,459U.S.21,34(1982);accord
United States v. BenitezVillafuerte, 186 F.3d 651,656 (5th Cir. 1999). The holding in Lassiter
also might not apply to an incompetent individuals removal proceeding because Lassiter
involvedapetitionerwhowascompetenttopresentherowncase.
noncitizens interest in remaining here as a liberty interest.84 Of course,

liberty could mean either physical liberty as the absence of physical
coercion or a broader concept of liberty as selfdetermination; Lassiter
recognizedonlytheformerasgivingrisetoablanketrighttocounsel,and
the Court did not specify in Bridges which sort of liberty was at stake in
removal proceedings. Regardless, physical coercion has become a routine
aspectoftheremovalprocess.Overthepasttwentyorsoyears,Congress
has prescribed detention for an increasing number of noncitizens in
removal proceedings, often for long periods of time.85 (the DHS is even
authorized to continue detaining individuals who win at the trial level
whileitappealsthesedecisionstotheBIA.)86In2009,forexample,theDHS
detained approximately 383,000 noncitizens in prisonlike conditions.87
Some immigration detainees spend years in detention.88 Moreover,
noncitizensareoftenphysicallyrestrictedwithshacklesorotherrestraints
duringtheremovalprocess.89
Thus,nowmorethanever,removalproceedingsentailadeprivationof
physical liberty in some sense. Of course, the DHS would no doubt
respond that this argument proves too much: If removal proceedings
implicate physical liberty as the Court understands that term, then all
noncitizensfacingremoval,andnotjustthemostvulnerableamongthem,
are entitled to representation. (Though unlikely to attract any court
majority anytime soon, this was the dissents view in AguileraEnriquez v.
INS.)90Evenifcourtsrejectedtheconceptionofremovalasadeprivationof
physical liberty akin to involuntary commitment, they could still take the
middle ground presented by Gagnon v. Scarpelli, a probationrevocation
case.91 In that case, the Court characterized the interest at stake as
conditional liberty and applied a casebycase analysis. Contrary to
84326U.S.135,154(1945).
85SeeGeoffreyHeeren,PullingTeeth:TheStateofMandatoryImmigrationDetention,45HARV.
C.R.C.L.L.REV.601,61011(2010)(describingenactmentofmandatorydetentionin1988and
gradualexpansionsincethenoftheclassofnoncitizenssubjecttodetention).
86See8U.S.C.1003.6(c)(Supp.2010).
87OFFICE OF IMMIGRATION STATISTICS, IMMIGRATION ENFORCEMENT ACTIONS 1 (2009),
available at http://www.dhs.gov/xlibrary/assets/statistics/publications/enforcement_ar_2009
.pdf;DORA SCHRIRO, DEPTOF HOMELAND SECURITY, IMMIGRATION DETENTION OVERVIEWAND
RECOMMENDATIONS 2, 6 (2009) [hereinafterSCHRIRO REPORT], availableathttp://www.ice.gov/
doclib/about/offices/odpp/pdf/icedetentionrpt.pdf.
88SCHRIROREPORT,supranote87,at6.
89See,e.g.,NinaBernstein,AMotherDeported,andaChildLeftBehind,N.Y. TIMES,Nov.24,
2010, at A1; Meribah Knight, Deportations Brief Adios and Prolonged Anguish, CHI. NEWS
COOPERATIVE (May 9, 2010), http://www.chicagonewscoop.org/deportation%E2%80%99s
briefadiosandprolongedanguish/.
90AguileraEnriquezv.INS,516F.2d565,57374(6thCir.1975)(DeMascio,J.,dissenting).
91441U.S.778,779(1973).
Lassiter,however,theCourtpresumedarighttorepresentationforanyone
with a colorable claim.92 Lassiter acknowledged this middleground
proposal in passing before focusing its analysis on what due process
requiresintheabsenceofanyphysicallibertyinterest.93
EvenassumingthatremovalcasesfallunderLassiter,thatcasemerely
createsapresumptionthatcouldwellbeovercomebytheMathewsfactors
in cases involving mental incompetence.94 As for the first Mathews factor,
theinterestsinhavingameaningfulhearingandinavoidingremovalare
significant. For many noncitizens, removal can mean separation from
family, friends, and community; loss of a home, employment and a
business;orothersignificanthardships.Individualsoftenfacedeportation
toacountrythattheyleftataveryyoungage,wheretheymightnoteven
speakthelanguage.Theseindividualsarerelativelyluckycomparedtothe
refugees who face persecution, torture, or even death if they are
wrongfully removed to the countries from which they fled. As noted in
PartII.A,theCourthasacknowledgedthegravityofalloftheseinterests.95
Applying the second Mathews factor, the government has a clear
interest in efficiency and economy, but this interest may not militate
strongly against providing protections for a highly limited class of
noncitizens, particularly because cases involving this class already require
extraresourcesintheformofrepeatedcontinuances,prolongedhearings,
administrative closures and reopenings, administrative and judicial
appeals, remands, prolonged detention, and treatment. Appointed
representation, although costly, would allow for more efficient legal
resolutions, which would offset some of the cost.96 Moreover, the
92Id.at79091.
93Lassiterv.DeptofSoc.Servs.,452U.S.18,28,31(1981).
94Seeid.at27.
95Admittedly, the interest at stake in Lassiterparental rightsis extremely important as
well, as the Lassiter opinion itself acknowledged. Id. at 27. The most significant differences
betweenthatcaseandthesituationofmentallyimpairedindividualsinremovalproceedings
are: (1) mentally impaired individuals are uniquely at risk of losing meritorious claims, and
(2) in custodytermination proceedings the main issue generally is the parentchild
relationship, a subject on which most parents are uniquely qualified to make their case,
whereas immigration law raises all kinds of technical questions about how various
convictions should be classified, what bars apply to what forms of relief, and whether the
precisecriteriaforeachformofreliefaremet.Inotherwords,themaindifferenceslieinthe
thirdMathewsfactor(riskofanerroneousdecision).
96See
AM. BAR ASSN, REFORMING THE IMMIGRATION SYSTEM: PROPOSALS TO PROMOTE
INDEPENDENCE, FAIRNESS, EFFICIENCY, AND PROFESSIONALISM IN THE ADJUDICATION OF
REMOVAL CASES 510 (2010), available at http://www.americanbar.org/content/dam/aba
/migrated/Immigration/PublicDocuments/aba_complete_full_report.authcheckdam.pdf.Inthe
context of Legal Orientation Program (by which EOIR funds legal service providers to visit
detention facilities and educate detainees about the law), EOIR has recognized that such
servicesmorethanpayforthemselvesbecausetheymakeproceedingsmoreefficientandhelp
government also has an interest in a fair adjudicative system, an interest

thatwouldbefurtheredbyblanketrepresentation.97
As for the third Mathews factor, the risk of an erroneous decision is
exceptionallyhighinlightof:thetrafficcourtlikehastewithwhichmany
immigrationproceedingsareheard;thecomplexityofimmigrationlaw;the
adversarialnatureoftheproceedings;andthehighevidentiaryburdenon
noncitizens seeking any relief from removal.98 To begin with,
unrepresentedindividualswithseverementalimpairmentsarevulnerable
to erroneous decisions in any adjudicatory system because they often
cannot understand, formulate, and verbally express ideas in a way that
most other people can.99 As the American Psychiatric Association
(APA) has explained, [d]isorganized thinking, deficits in sustaining
attention and concentration, impaired expressive abilities, anxiety, and
other common symptoms of severe mental illnesses can impair the
defendantsabilitytoplaythesignificantlyexpandedrolerequiredforself
representation even if he can play the lesser role of represented
defendant.100 Cognitive limitations pose similar problems. As the Court
recognized when it held that the Constitution places a substantive
restriction on the States power to take the life of a mentally retarded
offender, individuals with cognitive limitations are especially at risk for
erroneous factfinding becauseeven with counselthey are less able to
presentfavorablefactsandlesspersuasiveaswitnesses.101
Individualswithmentalimpairmentsareparticularlyvulnerableinthe
immigrationsystem.Becauseofthevolumeofcasestheyconfront,IJsmust
detaineesseethestrengthsandweaknessesoftheircase.SeeSIULC ET AL.,supranote6,at
ivv.Thisanalogyislimited,however,becauseLegalOrientationProgramsarelessresource
intensive(providinggrouptrainingsandonlylimitedindividualconsultations)andbecause,
in the case of individuals with significant mental disabilities, an appointed representative
wouldneedtoextensivelyinvestigatehowthatindividualmightbetreatedinhiscountryof
origin, a process that would limit the degree to which proceedings could be expedited. See
infranote158.
97Cf.Indianav.Edwards,554U.S.164,17677(2008)(identifyingthisgovernmentalinterest
inthecriminalcontext);AmendedOrderRePlaintiffsMotionforaPreliminaryInjunction,at
42,FrancoGonzalesv.Holder,No.CV1002211DMG(DTB)(C.D.Cal.2010)(Defendantsdo
notdisputethatthepublichasastronginterestinaccurateandfairdeterminationsinremoval
proceedings.).
98See e.g., 8 U.S.C. 1158(b)(1)(B)(ii) (2006) (providing that in asylum proceedings
immigrationjudgescanrequireanyreasonablyavailablecorroboration);InreYB,21I&N
Dec.1136,1139(B.I.A.1998)(settinghighevidentiaryburden).
99Amended Order Re Plaintiffs Motion for a Preliminary Injunction, at 31, Franco
Gonzalesv.Holder,No.CV1002211DMG(DTB)(C.D.Cal.2010).
100BrieffortheAm.PsychiatricAssnandAm.Acad.ofPsychiatryandtheLawasAmici
CuriaeinSupportofNeitherPartyat26,Edwards,554U.S.164(No.07208),2008WL405546,
quotedinEdwards,554U.S.at176.
101Atkinsv.Virginia,536U.S.304,320(2002).
decideapproximatelyfourcasesaday,102roughlytwiceasmanyasSocial
SecurityJudges.103(Thisfigureisalowestimate;itdoesnotincludeother
resolutionssuchastransfersorclosures,nordoesitaccountforsickdays,
vacations,orholidays.)Judgesmustkeepthispacewithlittleassistance;if
theyareluckyenoughtobeatacourtwithlawclerks,theygenerallyshare
aclerkwiththreeotherjudges.104
Fourdecisionsadaymightbefeasibleifthesecasesweresimple,but
they are often highly complex. Immigration law has been described as
secondonlyto theInternalRevenueCodeincomplexity.105Toapplyit,
one must navigate the fine print of thousands of pages of statutory
provisionsandregulations,nottomentiontheseveralhundredpublished
circuit court decisions that are issued each year.106 Compounding the risk
of error,a specialized DHS attorney appearsin each of these cases, much
like a prosecutor, and advocates the DHSs interest in removing the
respondent.Thismakesitalltooeasyforanunrepresentedrespondentto
beovermatched.107Finally,respondentswhoapplyforrelieffromremoval
bearahighevidentiaryburden,onethatunrepresented,mentallydisabled
individualscannotmeetregardlessofthemeritsoftheircases.108
Whenalltheseriskfactorsarecombined,thereisanexceptionallyhigh
risk that mentally impaired respondents, if unrepresented, will be
erroneously removed. Moreover, such error is essentially final. One
relativelyluckyfamilywasabletolocateamentallydisabledindividual
incidentally, a U.S. citizenerroneously removed to Mexico,109 but
countless others, undoubtedly, have disappeared into their home country
withnohopeofreenteringorofreopeningtheircasefromabroad.110
102AM. BAR ASSN, supranote96,at216&nn.12124(citingEXEC. OFFICEFOR IMMIGRATION
REVIEW, U.S. DEPT OF JUSTICE, FY 2008 STATISTICAL YEAR BOOK,at D1 fig.4 (2009), availableat
http://www.justice.gov/eoir/statspub/fy09syb.pdf).
103Id.at237&n.304.
104Id.at217.
105CastroORyan v. INS, 847 F.2d 1307, 1312 (9th Cir. 1988) (citing ELIZABETH HULL,
WITHOUTJUSTICEFORALL:THECONSTITUTIONALRIGHTSOFALIENS107(1985)).
106 For example, one standard edition of the statute is 1015 pages long. See BENDERS
IMMIGRATIONANDNATIONALITY ACTSERVICE(2010ed.)Onestandardeditionofimmigration
relatedregulationsis1867pages.SeeBENDERSIMMIGRATIONREGULATIONSSERVICE(2010ed.)
107See Lassiter v. Dept of Soc. Servs., 452 U.S. 18, 28 (1981) (noting that our adversary
systempresupposes[that]accurateandjustresultsaremostlikelytobeobtainedthroughthe
equalcontestofopposedinterests).
108Seesupranote98andaccompanyingtext.
109See Problems with ICE Interrogation, Detention, and Removal Procedures: Hearing Before the
Subcomm.onImmigration,Citizenship,Refugees,BorderSec.,andIntlLawoftheH.Comm.onthe
Judiciary, 110th Cong. 3031 & 67 (2008) (statement of James J. Brosnahan, Senior Partner,
Morrison&Foerster,LLP).
1108C.F.R.1003.2(d)barsnoncitizensfromfilingmotionstoreopenaftertheyhavebeen
Under the logic of the Supreme Courts civil dueprocess

jurisprudence,then,thereisastrongargumentforrequiringrepresentation
for potentially incompetent noncitizens facing removal. Admittedly, it
would be a novel application of Lassiter to hold that a whole class of
individuals was entitled to representation, since Lassiter itself applies a
casebycase analysis. But this modification makes good sense from a
judicial administration perspective: courts do not have the resources to
analyze the factual nuances of each of these cases on an underdeveloped
record without briefing from counsel or even from a competent litigant.
Moreover, although Lassiter prescribes a casebycase form, its analysis
could be construed as functionally categorical, singling out various
special factors,111 all absent in Lassiters case, that would categorically
require counsel. Among the factors that might require counsel, Lassiter
mentionedthefollowing:arespondentslackofcapacity,thepotentialfor
criminal liability, the states introduction of expert witnesses, and
particular complexity in the proceedings.112 Even if courts refuse to
recognize a categorical right to representation under Lassiter, advocates
couldstillbuildpressureforreformbymakingcasespecificargumentsfor
representationunderLassiter.113
Providing representation or other protections for mentally ill
respondents also makes particular sense because, without these
protections,theycannotevenaccesstheirbasiccivilproceduralrights.At
the very least, individuals in removal proceedings have the same
procedural rights as any civil litigant. These rights include the
constitutional right to examine the evidence against them, to present
physically removed from the United States. Courts are divided on the validity of this
regulation.CompareWilliamv.Gonzales,499F.3d329,332(4thCir.2007)(strikingdownthe
regulation), with RosilloPuga v. Holder, 580 F.3d 1147, 1156 (10th Cir. 2009) (upholding
regulation). For an indepth analysis of this issue, see Rachel E. Rosenbloom, Will Padilla
Reach Across the Border?, 45 NEW ENG. L. REV. 327, 34647 (2011). Nonetheless, even in
favorablejurisdictions,itishardtoimaginementallyimpairedindividualswhowillbeable,
fromabroad,tolocatetheprobonolegalassistancenecessarytoargueagainsttheapplication
of1003.2(d).
111The special factors approach to righttocounsel issues is most often associated with
Bettsv.Brady,316U.S.455,46365,473(1942);seealsoinfraPartII.C.
112See Lassiter, 452 U.S. at 3033 (discussing relevant factors and applying these factors to
AbbyLassiterscase).
113One advantage to this approach is that advocates could highlight the interests of one
smallsubgroupofindividualsremovedwithoutdueprocess:U.S.citizensorindividualswith
a colorable claim to citizenship, who arguably have a uniquely compelling right not to be
physicallyremovedfromthecountryorstrippedofvariousrightsofcitizenship(suchasthe
right to work or to travel freely in and out of the country). See DEPORTATION BY DEFAULT,
supranote18,at45(notingthat[s]omeUScitizenswithmentaldisabilitiesmayhavebeen
deportedtocountriestheydonotknow,andsomeofthesepeoplehavenotbeenorcannotbe
found,andcitingspecificinstances).
evidenceontheirownbehalf,andtocrossexaminewitnessesandevidence
putonbythegovernment.114Theyhavetherightto:noticeoftheremoval
hearing that is reasonably calculated to reach them;115 be advised of the
chargedgroundsforremoval;116retaincounsel;117andappealanadverseIJ
decision.118 In the criminal context at least, the Court has recognized that
procedural rights are only real and adequate if an individual is able to
exercisethem(inthatcontext,withassistanceofcounsel).119Advocatescan
argue by analogy here: Without special assistance, mentally disabled
noncitizens cannot exercise the basic civil procedural rights that the
Constitutionprotects.
C. DueProcesswithRespecttoMentalIncompetence
The third relevant area of law is the constitutional significance of

mental incompetence per se, regardless of the nature of the proceedings.
TheissueofmentaldisabilityfrequentlyaroseduringtheCourtsgradual
leadup to finding a constitutional right to counsel for all state criminal
defendantsinGideonv.Wainwright.120Initially,inBettsv.Brady,theCourt
rejected such a categorical right, reasoning that indigent state defendants
wereonlyentitledtocounselunderspecialcircumstancestobeidentified
onacasebycasebasis.121Onlygradually,overthenexttwentyoneyears,
did the Court work its way to an absolute right to counsel in criminal
proceedingsasitbecameincreasinglyclearthattherecouldbenofairtrial
without counsel, no matter how able or eloquent a defendant might be.
[F]eeblemindedness,122 mental illness,123 and limited mental
capacity124 were instantly recognized as special factorssome of the
most quickly accepted and uncontroversialnecessitating counsel. It is
easy to see why: if the system employs a lawyer to present evidence and
arguments against the defendant, and the defendant lacks the capacity to
understandtheevidenceagainsthim,totestthevalidityofthatevidence,
ortopresenthisownevidence,thenthereisanunacceptablyhighriskof
114HernandezGuadarramav.Ashcroft,394F.3d674,681(9thCir.2005)(quoting8U.S.C.
1229a(b)(4)(B)(2000));seeKaurv.Ashcroft,388F.3d734,73738(9thCir.2004)(findingadue
processviolationwheretheIJfailedtoallowanoncitizentotestifyonherownbehalf).
115Seee.g.,FloresChavezv.Ashcroft,362F.3d1150,1155(9thCir.2004).
116Hirschv.INS,308F.2d562,566(9thCir.1962).
1178U.S.C.1362(2006);RiosBerriosv.INS,776F.2d859,862(9thCir.1985).
118GarciaCortezv.Ashcroft,366F.3d749,753(9thCir.2004).
119SeeCooperv.Oklahoma,517U.S.348,364(1996).
120372U.S.335(1963).
121316U.S.455,473(1942).
122Id.at46364(discussingandquotingPowellv.Alabama,287U.S.45,71(1932)).
123McNealv.Culver,365U.S.109,114(1961).
124Wadev.Mayo,334U.S.672,684(1948).
wrongfulconviction.Or,astheCourtstatedinMasseyv.Moore,[n]otrial
can be fair that leaves the defense to a man who is insane, unaided by
counsel, and who by reason of his mental condition stands helpless and
alonebeforethecourt.125
InatwistonGideon,theCourtrecentlyelaboratedonthesignificance
of representation in a decision limitingthe right of criminal defendants to
appear without counsel. In Indiana v. Edwards,126 the Court held that trial
courtsmayimposecounselonunwillingdefendantswhoarecompetentto
betriedbutnotcompetenttopresenttheirowndefense.127Insodoing,the
Court recognized that the interests at stake are not only the defendants
interest in a fair trial (which potentially, the defendant may be able to
waive),butalsothegovernmentsinterestinpreservingtheintegrityofthe
judicial system and the guarantee of fairness that it provides to all
individuals, whether or not they ever directly encounter the criminal
justice system.128 Arguably, there is a direct analogy to the immigration
context.Justasitisessentialtoourselfimageasafreenationtoprotectthe
integrityofourcriminaljusticesystem,itisalsoessentialtoourselfimage
as a nation of immigrants to ensure that our immigration system fairly
determineswhocanstayhereandwhomustleave.
In the civil context, the Court also has recognized the importance of
providingGALsformentallyincompetentlitigants.ItpromulgatedFederal
RuleofCivilProcedure17(c),whichinstructscourtstoappointaguardian
ad litemor issue another appropriate orderto protect a minor or
incompetent person who is unrepresented in an action.129 At least one
district court has foundbased on a straight Mathews v. Eldridge analysis
with no mention of Lassiterthat mentally incompetent publichousing
tenants facing housing court proceedings have a dueprocess right to
representation, either by a suitable [volunteer] representative or by an
appointedadvocateorguardian.130
Inadditiontothesethreelinesofcases,thereareafewdecisionsthat
combine the special status of immigration law with the special
circumstances of minor respondents. In these decisions, courts have
requiredtheAttorneyGeneraltoappointGALstoprotecttheinterestsof
minors involved in removal proceedingswith glancing reference to the
serious interest at stake and to the minors limited capacity, but
125348U.S.105,108(1954).
126554U.S.164(2008).
127Id.at17778.
128Id.at17677.
129FED.R.CIV.P.17(c).Rule17(c),however,reliesontheavailabilityofvolunteerguardians
adlitem;thereisnofundingavailabletocompensateguardians.
130Blatchv.Hernandez,360F.Supp.2d595,62122(S.D.N.Y.2005).
unfortunatelywithoutanalysisorspecificinstructions.131
The three distinct areas of case law outlined above provide strong
doctrinalsupportforthepropositionthatseriouslydisablednoncitizensin
removal proceedings must be afforded special protections beyond the
limited protections already prescribed by the regulations. Removal
requiresaparticularlyhighlevelofprocessbecauseitisakinto,andoften
worse than, penal incarceration. Even in the civil context generally, due
process can require representation, at least on a casebycase basis, when
fundamentalinterestsareatstake.Andevenacasebycaseanalysiswould
suggestprioritizingrepresentationforparticularlyvulnerablepopulations
(suchasthementallydisabled),justastheCourtdid,preGideon,whenit
applied the Fifth Amendment to require counsel for mentally disabled
defendantsincriminalproceedings.
III. ImaginingPossibleSolutions
Having explained the legal arguments why the courts must take
affirmative measures to protect the rights of potentially incompetent
noncitizens in removal proceedings, I turn next to the practical issue of
whatmeasuresmightbefeasibleandadequate.
A. Standard(s)forCompetence
Before immigration courts can implement any new system, they first
needaworkabledefinition(ordefinitions)ofincompetence.Inthecriminal
context,adefendantisdeemedincompetenttostandtrialifhelackseither
sufficient present ability to consult with his lawyer with a reasonable
degree of rational understanding or a rational as well as factual
understanding of the proceedings against him.132 In the civil context, the
standardisslightlymodifiedbecausecivillitigantsmaybeunrepresented;
courts examine a litigants ability to understand the nature of the
proceedings,and(ifunrepresented)topresenthisargumentsanddefenses
anddefendhisrights.133Inotherwords,incompetenceisabroaderconcept
inthecivilcontext,albeitwithlessdramaticlegalimplicationsinthatcivil
cases can go forward with incompetent litigants as long as they are
adequately assisted by counsel, a guardian, or both. In both the criminal
andcivilcontexts,competencycombinespassiveability(putsimply,the
131See,e.g.,Johnsv.DeptofJustice,624F.2d522,52324(5thCir.1980)(requiringaGAL
andcompilingsupportivecases).
132SeeDuskyv.UnitedStates,362U.S.402,402(1960).
133See,e.g.,UnitedStatesv.30.64AcresofLand,795F.2d796,805(9thCir.1986);Blatch,360
F.Supp.2dat62122(requiringappointmentofguardianorrepresentativeforunrepresented
public housing litigants incapable of present[ing] . . . [their] side of the issue); Bowen v.
Rubin,213F.Supp.2d220,223(E.D.N.Y.2001)(findingincompetentunderrelevantstatelaw
civillitigantsincapableofadequatelyprosecutingordefending[their]rights).
abilitytounderstandwhatistakingplace)andactiveability(theabilityto
participate in the proceedings and to make decisions related to the
proceedings).
In the context of removal hearings, courts should be instructed to
determine whether respondents are capable of presenting arguments and
defensesagainstremovalaswellasclaimsforanyavailablerelief.134Courts
also must determine whether respondents are capable of consulting with
counsel and making decisions. For all impaired respondents, courts will
needtoassessothercapacitiesaswell,suchasthecapacitytotestify.
B. DutiesoftheDHSandIJstoDeveloptheRecord
For mentally impaired individuals to be afforded dueprocess

protections in removal proceedings, they first must be recognized as
impaired. The DHS, which plays a prosecutorial role in removal
proceedings and in many cases has custody over respondents, often has
accesstoinformationcallingcompetencyintodoubt,suchasmentalhealth
treatmentrecordsfromarespondentstimeincustody,orinformationthat
a respondent has previously been involuntarily committed or adjudged
incompetent in prior criminal proceedings or any other context. By
contrast, the respondent himself may not be aware that he suffers from a
disability(acommonfeatureofmentalillness)135orthathismentalstatus
may entitle him to additional protections. He may well be unrepresented
(as in the overwhelming majority of detainee cases), and even if he is
represented, his attorney may have highly limited access to him if he is
detained.
Currently,theDHSdeniesanyobligationtobringinformationrelating
to competency to the courts attention.136 The DOJ should promulgate
regulations requiring DHS attorneys appearing in its courts to disclose
competency facts. Courts have required adversaries to volunteer
competencyrelated information in other contexts, such as criminal137 and
housingcourtproceedings,138anddueprocessrequiresthesamerulehere.
134Cf.Blatchv.Hernandez,No.97Civ.3918(LTS)(HBP),2008WL4826178,at*4(S.D.N.Y.
2008)(quotingthesettlementoflitigationovertherightsofmentallydisabledpublichousing
tenants in housingcourt proceedings, which defines an incompetent person as someone
whoasaresultofmentaldiseaseordefect...isunableto(1)understandthenatureofthe
proceedingsor(2)adequatelyprotectandasserthis/herrightsandinterestsinthetenancy).
135See AM. PSYCHIATRIC ASSN, DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL
DISORDERS279(4thed.1994).
137See United States v. Spagnoulo, 960 F.2d 990, 995 (11th Cir. 1992) (holding that
prosecutors Brady obligations include the obligation to disclose evidence bearing on

competency).
138See,e.g.,Blatch,360F.Supp.2dat632(findingthatNewYorkCityhadviolatedtenants
due process rights by failing to notify the housing court of their mental disabilities and
Atthesametime,theDHSmayhaveaninstitutionalincentivetoignoreor
downplayevidencebearingoncompetency(tofacilitateremoval,simplify
theremovalproceedings,andavoidthecostofadditionaltreatment).Thus
an important component of this duty would be a provision allowing for
cases to be reopened where a respondent could present evidence that the
DHS had material information concerning competency that it failed to
disclose.
A further question is what obligation the courts may have to
investigate potential incompetence. In the civil context generally, some
appellate courts have been reluctant to require that district courts inquire
into competency whenever a litigants bizarre behavior raises a
substantialquestionastocompetency.139Fearingthatsucharequirement
would unduly burden trial courts, one appellate court held that courts
need not inquire unless they encounter actual documentation or
testimonybyamentalhealthprofessional,acourtofrecord,orarelevant
public agency that a plaintiff might not be competent.140 Such a rule
would,however,beharshincaseswhereanindividualisforcedintocourt
proceedings,wherelibertyandnotmerelypropertyisatstake,andwhere
arespondentmaywellbedetained,unrepresented,orunawareofhisown
condition.
Moreover, unlike Article III judges, IJs have a particular duty to
develop the record in immigration proceedings under domestic and, in
some cases, international law. By statute, the IJ shall administer oaths,
receive evidence, and interrogate, examine, and crossexamine the alien
andanywitnesses.141Inotherwords,theIJhasafarmoreactiverolethan
is customary for adjudicators in the adversarial system. The IJs duty has
also been tied to the dueprocess rights of noncitizens appearing in
immigrationcourt.142Inasylumproceedings,theUnitedNationsHandbook
on Procedures and Criteria for Determining Refugee Status, interpreting
international law, states that the duty to ascertain and evaluate all the
relevantfactsissharedbetweentheapplicantandtheexaminer,andthat
theadjudicatorsroleisto[e]nsurethattheapplicantpresentshiscaseas
potential incompetence to represent themselves); N.Y. C.P.L.R. 1201 cmt. (McKinney 1997)
(Where a party has information indicating that another party is incompetent to protect his
interestsitshouldberevealedtothecourtsothatthecourtcanappointaguardian.Failureto
suggestthepartysinadequacytothecourtwouldconstituteafraudwhichcouldbethebasis
foramotiontosetasideanyjudgment.).
139Ferrelliv.RiverManorHealthCareCtr.,323F.3d196,201(2dCir.2003);accordMcLean
v.CMACMortgageCorp.,398F.Appx467,470(11thCir.2010).
140SeeFerrelli,323F.3dat201n.4;cf.UnitedStatesv.30.64AcresofLand,795F.2d796,806
(9thCir.1986)(holdingthatitwasanerrornottoconsiderappointingGALwherethelitigant
presentedarecordofSocialSecurityAdministrationdisabilityfinding).
1418U.S.C.1229a(b)(1)(2006).
142See,e.g.,Jacintov.INS,208F.3d725,734(9thCir.2000).
fullyaspossibleandwithallavailableevidence.143
Thus, regulators should require judges to inquire into competency
whenever a substantial question (or substantial doubt) exists, even if the
only evidence giving rise to that doubt is the respondents own behavior
(such as extreme listlessness or apathy, confusion, dissociation, or
aggression).Bywayofcomparison:inresponsetosuccessfulconstitutional
litigation in the public housing context, the New York City Housing
Authority is now required to refer tenants in adversarial proceedings for
competency evaluations in a range of scenarios, including if the tenant
indicatesthathehasamentaldiseaseorif[he]hasexhibitedseriously
confusedordisorderedthinking.144Wheredoubtexistsastocompetency,
regulatorsshouldalsorequiretheDHStoproducedetainedrespondentsin
court rather than by videoconference so that IJs can directly observe and
evaluate their behavior.145 And, if a respondent is found marginally
competent, courts must periodically revisit the competency question. As
theSupremeCourthasrecognized,mentalillnesscanvaryovertimeand
interferes with an individuals functioning at different times in different
ways.146
Once the issue of competency is raised, the next question is who
assesses it. The DHS already has access to evaluators, particularly in the
caseofdetainedrespondentswhomitmayalreadybetreatingformental
illness.147However,giventheDHSsclearlyconflictinginterest,148theDOJ
should maintain its own panel of experts who could address the
143U.N. High Commissioner for Refugees, Handbook on Procedures and Criteria for
DeterminingRefugeeStatusparas.196,205(b)(i)(Jan.1992),quotedin,Jacinto,208F.3dat732
33; accord Agyeman v. INS, 296 F.3d 871, 884 (9th Cir. 2002). Although the United Nations
High Commissioner for Refugees (UNHCR) Handbook is not binding on U.S. courts, the
Supreme Court has recognized it as persuasive authority because of the UNHCRs role in
interpreting the refugee treaty on which U.S. law is based. See INS v. CardozaFonseca, 480
U.S.421,43839&n.22(1987).
144RobertT. Drapkin, Protecting the Rights of the Mentally Disabled in Administrative
Proceedings,39CATH.LAW.317,347(2000).
145SeeRamshaw,supranote41(notingfrequentuseofvideoconferencingandtheobstacle
itposestorecognizingmentalincompetence).
146Indianav.Edwards,554U.S.164,175(2008).
147Treatmentisoftenprovidedbyindependentcontractors.
148Inonecase:theIJorderedDHStoproduceacompetencyevaluation;DHSproducedan
evaluation finding the respondent competent; the IJ called the expert into court and
questioned him; and ultimately the IJ decided that the report was not sufficiently objective.
Telephone Interview with anonymous government lawyer, Oct. 15, 2010 (notes on file with
author). Apart from the institutional conflict, professional norms within the field of
psychologyprecludetreatingphysiciansfromprovidingforensicevaluations.SeeLetterfrom
Am. Civil Liberties Union et al. to Assistant Chief Immigration Judge Jeffrey Romig et al., 3
n.3 (Oct. 29, 2010), available at http://www.legalactioncenter.org/sites/default/files/docs/
lac/NGOlettertoDOJMH%20Roundtable102910.pdf.
significance of cognitive limitations as well as mental illness. Failing that,

IJs should have a duty to closely examine DHSaffiliated competency
expertsbeforeacceptingtheirassessmentsthatarespondentiscompetent
toproceedwithoutsafeguards.
C. NecessaryProtections
1. Representation
Themostdifficultpracticalquestioniswhatimmigrationcourtsshould
dooncetheyfindthatanoncitizenrespondentismentallyincompetentor
otherwise seriously disabled. As previously mentioned, many IJs have
pursuedavarietyofmeasurestoprotectdisabledrespondents,somemore
robust than others,149 but too often IJs have done nothing, particularly
where an individuals disability did not obviously disrupt the
proceedings.150 And indeed the statute prescribes no specific measures;
regulatory prescriptions are few and inadequate; and the BIA, in general,
hasfavoredthedonothingapproach.151
The most important safeguard would be actual representation in the
formofcounseloraguardian.Inthecivilcontextgenerally,guardianship
adlitemisthedefaultsafeguardtoprotectlitigantswhoarenotcompetent
torepresentthemselves.Whileappellatecourtsarereluctanttorequiretrial
courts to actively inquire into the competency of civil litigants whenever
anydoubtarises,theydoagreethatoncealitigantisdeemedincompetent,
a guardian must be appointed.152 Indeed, as previously mentioned, the
AttorneyGeneralsolicitedcommentsin1997onwhethertocreateasystem
for appointing guardians and has been studying the possibility ever
since.153 One suspects that the primary virtue of guardians, from the
governments point of view, is that they are often family members or
friendswhoarewillingtoparticipateforfree.
Many advocates are waryof too heavya reliance on GALs, primarily
fortworeasons.First,noncitizensmaybeincompetentinthesensethat
theycannotpresenttheircasebutnonethelesscompetenttomakedecisions
and consult with an attorney. Making guardianship the remedy of first
resort could unnecessarily diminish their autonomy.154 Second, non
attorneyguardiansmightnotbeabletoeffectivelyadvocatefortheirward
becausetheymightnotbeabletomakenecessarylegalargumentsrelated
149Seesupranotes3643andaccompanyingtext.
152SeeUnitedStatesv.Mandycz,447F.3d951,962(6thCir.2006).
154BriefforAIC,supranote41,at1819.
to statutory interpretation or the application of law to facts.155 In other

words,ironically,ablanketguardianshipremedywouldbebothexcessive
and inadequate. Therefore, advocates argue, the government must afford
incompetent respondents in removal proceedings counsel and also, in the
rarercasesofextremeincompetence,aGAL.156
This position has obvious appeal. There is no question that, as a
general matter, attorneys are far better able to navigate the maze of
immigration laws that could affect a particular individual.157 Attorneys,
withtheirknowledgeofthesurroundinglegalframework,mightbemore
skillful than laypersons in gathering corroboration for a respondents
application for relief from removal.158 As Nadines story illustrates,
corroboration is especially crucial if the respondents own testimony is
compromisedbyaseverementaldisability.Whilecourtstraditionallyhave
lookedtofamilymemberstoactasguardians,159manyfamilymembersare
incapable ofresearching the facts andpressing legal arguments on behalf
of a mentally impaired respondent and may even have their own
conflicting interests.160 Moreover, a guardianship system that relied on
155Id.at1718.
156See, e.g., TEX. APPLESEED, supra note 36, at 5558 (recommending that IJs first appoint
counselforanyrespondentwhoappearsimpaired,thenholdacompetencyhearing,andthen
alsoappointaguardianiftheIJfindstherespondentincompetent);BriefforAIC,supranote
41, at 1622 (arguing that counsel is required for any individual not competent to represent
himself, and that a guardian is also required for individuals not competent to consult with
counsel); see also Letter from Merrill Rotter, M.D., Dir. Div. of Law and Psychiatry, Albert
EinsteinColl.ofMed.,etal.toEricH.Holder,Jr.,U.S.AttyGen.(July24,2009),availableat
http://www.legalactioncenter.org/sites/MentalDisability72409.pdf.
157There are numerous exceptions to this rule, however. Because immigration law is so
complexanddistinctive,itcanbeveryhardforevennonspecialistattorneystopickup.The
author has repeatedly heard nonspecialists in immigration court indicating to the court that
their client pleaded guilty to the governments allegations and has seen records reflecting
terriblestrategicchoicesmadebynonspecialists.Andevenmanyspecialistsfailtoadequately
represent their clients because they take on an inappropriately high volume of cases and
becauseimmigrantsarenotwellequippedtoenforcetheirownrightsasclients.
158For example, to establish eligibility for asylum or other fearbased forms of relief, an
individual must document past harm and/or the threat of future harm through witness
affidavits, medical evidence, psychiatric evidence, country condition evidence (including
expert testimony), and other evidence (such as politicalparty membership cards or police
summons). To establish eligibility for cancellation of removal, an applicant might need to
gatherevidenceofgoodmoralcharacterandhardshiptofamilymembers,suchasstatements
byfamilymembers,employers,clergy,orothers.
159See8C.F.R.1204.4(2010)(allowinganearrelativeorfriendtoappearonbehalfof
anincompetentrespondent).
160See Amended Order Re Plaintiffs Motion for a Preliminary Injunction at 32 Franco
Gonzales v. Holder, No. CV 1002211 DMG (DTB) (C.D. Cal. 2010) (quoting declaration by
petitioners mother that she does not understand legal terminology, does not know how to
use a computer, and does not have any books about the law). Some family members might
volunteerswouldbeillequippedtohandleindividualslikeCarloswhodo
not have close friends or family willing to serve as a guardian. Finally,
counselfillsaverydifferentrolethanaGAL,atleastintheory,161andmany
respondents might well be incompetent to present their own case but
nonethelesscompetenttoworkwithcounsel.162Congressrecognizedthis
distinctionbetweenguardiansandadvocatesrecently,whenitauthorized
Health and Human Services (HHS) to appoint child advocates to
advance the best interest of unaccompanied minors and exhorted the
agency to ensure to the greatest extent practicable that unaccompanied
minorsfacingremovalarerepresentedbycounsel.163
There are, however, problems with any proposal requiring distinct
advocate and guardian representatives. For one thing, the unfortunate
reality is that many immigrants with no mental disabilityperhaps even
the majorityare, in a nonlegal sense, incompetent to represent
themselves. Language and cultural barriers; educational deficiencies;
psychologicalfactorssuchasanxiety;lackoffinancialresourcestogather
necessary corroboration; and simply lack of knowledge of the law
frequentlypreventapplicantsfrombeingabletopresenttheircase.(Thisis
all the more true because immigration law is so complex it invites
comparisonstotheInternalRevenueCode164andbecauserecentrevisions
toasylumlawplaceanenormousburdenonapplicantstopresentevidence
corroborating their account of past and/or feared persecution.)165 Non
have their own interests that could conflict with the respondents best interests. A family
membermight,forexample,notwantanindividualreleasedfromdetention(iftheindividual
islikelytobeaburdenoradangertothatfamilymember),ormightnotwanttoconducta
factual investigation that, in an asylum case, could endanger other family members by
drawing the attention of potential persecutors. At the same time, family members can be
incredibly helpful in these cases because they can convey details about the respondents life
thatmayraisethepossibilityofclaimstherepresentativemightnothavethoughtof.
161Therealityisthatattorneysoftenfaceethicalissuesworkingwithimpairedclients.The
ABAModelRuleofProfessionalConduct1.14andaccompanyingcomments,recognizesthis
reality. See MODEL RULES OF PROFL CONDUCT R. 1.14 cmts. 1 3, 7 (2011). The rule instructs
attorneys to maintain an ordinary lawyerclient relationship as far as reasonably possible,
while authorizing them to take protective actions in emergency situations and to use their
ownjudgmentindecidingwhetherappointmentofguardianisnecessary.Id.R.1.14(a)(b).
162SeeIndianav.Edwards,554U.S.164,17576(2008).
1638
U.S.C.S. 1232(c)(5)(6) (Supp. 2009); cf. QUALITY SERV. OFFICE, LEGAL AID ONT.,
PRACTICAL TIPS: REPRESENTING MINORS & PERSONS WITH MENTAL HEALTH DISORDERS OR
DISABILITY BEFORE THE IRB 79 (2007), available at http://www.legalaid.on.ca/en/info/
downloads/IRB_Practical_Tips.pdf (noting that in Canada the government pays for
designatedrepresentatives,inadditiontocounsel,toadvocateforthebestinterestsofpersons
whobecauseofmentaldisabilityareunabletoappreciatethenatureoftheproceedings).
164CastroORyan v. Dept of Immigration & Naturalization, 847 F.2d 1307, 1312 (9th Cir.
1988)(citingHULL,supranote105,at107).
165See8U.S.C.1158(b)(1)(b)(ii)(iii)(2006)(providingthatimmigrationjudgescanrequire
attorney guardians may not be adequate to protect the rights of

incompetentrespondents,buttheyarenomoreinadequatethanthelackof
representation that, thus far at least, courts have found constitutionally
acceptable.166Moreover,giventhecurrentpoliticalrealitiesandgiventhat
the DOJ cannot afford to provide each immigration judge with even one
third of a law clerk,167 it is unimaginable that the DOJ would muster
sufficient resources to guarantee counsel and a guardian for particular
respondents. Nor is it clear that immigrant legal aid organizations or the
private bar, which already struggles to provide sufficient pro bono
resources,couldproduceanythingnearthatnumberofrepresentatives.
At any rate, the system already allows for nonlawyers to represent
respondents, as long as they are of good moral character, and this
provision has not been a particular source of controversy.168 In fact, in a
study of immigration proceedings, the ABA recently found that the
availability of some form of competent, qualified representation is what
mattersmost,notnecessarilywhetherthatpersonisalawyerornonlawyer
orwhether,ifalawyer,thepersonisanimmigrationpractitioneroraless
experienced pro bono representative.169 Recently, a district court judge,
hearing an argument that the DOJ should be required to appoint counsel
fortwomentallyillpetitioners,declinedtorequirecounselbutdidrequire
aqualifiedrepresentativeanddirectedthatthepersonselected:
(1)beobligatedtoprovidezealousrepresentation;(2)besubject
to sanction by the EOIR for ineffective assistance; (3) be free of
any conflicts of interest; (4) have adequate knowledge and
anyreasonablyavailablecorroboration);seealsoInreYB,21I&NDec.1136,115053(B.I.A.
1998)(settinghighevidentiaryburden).
166See, e.g., MoralesIzquierdo v. Gonzales, 486 F.3d 484, 497 (9th Cir. 2007) (no general
righttocounselinremovalproceedings).
167See
Case Backlogs in Immigration Courts Expand, Resulting Wait Times Grow, TRAC
IMMIGRATION(June18,2009),http://trac.syr.edu/immigration/reports/208/.
168See8C.F.R.1292.1(a)(2010)(allowingforrepresentationbysupervisedlawstudents,
accredited representatives, persons of good moral character with a preexisting relationship

with the respondent or even, with a waiver from DHS, without such a preexisting
relationship).Othercountriessimilarlyallowskillednonattorneystorepresentindividualsin
immigration proceedings. See, e.g., Becoming an Agent: Knowledge Requirements, AUSTRALIAN
GOVT OFFICE MIGRATION AGENTS REGISTRATION AUTHORITY, http://www.mara.gov.
au/BecominganAgent/RegistrationRequirements/KnowledgeRequirements/Knowledge
Requirements/default.aspx (last visited Apr. 8, 2011) (linking to document with quality
control standards); Immigration Consultants, Lawyers, and Other Representatives: Who Can
Represent You, CITIZENSHIP & IMMIGR. CAN., http://www.cic.gc.ca/english/information
/representative/repwho.asp(lastvisitedApr.8,2011).
169See AM. BAR ASSN, supra note 96, at 510; see also Andrew I. Schoenholtz & Jonathan
Jacobs,TheStateofAsylumRepresentation:IdeasforChange,16GEO. IMMIGR. L.J.739,758(2002)

(citing a study showing that accredited representatives provide a high quality of
representation).
information to provide representation at least as competent as

that provided by a detainee with ample time, motivation, and
access to legal materials; and (5) maintain confidentiality of
information.170

Significantly,eventhedueprocesscaselawonwhichadvocatesrelyin
making the counsel argument is itself ambiguous. In the landmark due
processcaseVitekv.Jones,concerningtherightsofprisonersfacingtransfer
toamentaltreatmentfacility,onlyapluralityconcludedthatindividualsin
involuntarycommitmentproceedingswereentitledtorepresentationbyan
attorney.171 Justice Powell, who provided the necessary fifth vote
supportingtheinjunctionagainstthetransfer,concludedthatstatescould
alsosatisfydueprocessbyappointingaqualifiedandindependentnon
attorneyrepresentative.172
Based on these conflicting considerations, I propose that funding be
established to appoint representatives who are either lawyers or
accredited representatives,173 sufficiently trained in immigration law to
gathernecessaryevidence,andwhoalsoaretrainedtoplayaGALroleif
necessary.174 Ideally, the funding would be in the form of contracts with
legal services organizations, some of which might develop special units
dedicatedtoworkingwithmentallydisabledindividuals.
Under my proposed system, the IJ would assess: (1) whether an
individualwascompetenttorepresent himself;andifnot,(2)whetherhe
was competent to make decisions in the litigation. If the respondent was
incompetent to represent himself but competent to make decisions, the IJ
would appoint a representative in the role of traditional advocate. If the
respondent was not competent to make decisions and there was an
170Amended Order Re Plaintiffs Motion for a Preliminary Injunction at 38 Franco
Gonzalesv.Holder,No.CV1002211DMG(DTB)(C.D.Cal.2010).
171446U.S.480,49697(1908).
172Id.at500(Powell,J.,concurring).
173Tobeapprovedasanaccreditedrepresentativeauthorizedtoappearinimmigration
court, an individual must demonstrate to EOIR that he is sufficiently trained, experienced,

and knowledgeable, and works at an organization with sufficient resources to ensure
competent representation. See 8 C.F.R. 1292.1(a)(4), 1292.2; see also EOIR Recognition and
Accreditation Program Overview, EXEC. OFFICE OF IMMIGR. REV. (Feb. 4, 2011),
http://www.justice.gov/eoir/statspub/raroster_files/RA_Overview_%2020110204.pdf.
AccreditedrepresentativesaresubjecttoEOIRsrulesofprofessionalconduct.See8C.F.R.
1292.3.
174These representatives could also be appointed as GALs for represented but indigent
respondents if, for example, a pro bono counsel is unable to obtain his clients informed
consent to the release of relevant medical information. See, e.g., CAIR COAL. & COOLEY,
GODWARD, KRONISH, LLP, supranote2,atapps.1314(publishingredactedpetitionsforGAL
appointmentforthispurpose).
appropriatefamilymemberorfriendwillingtoserveasaGAL,175thenthe
IJ would appoint a publiclyfunded advocate to work with the GAL. If
therewasnoappropriatevolunteerGALonhand,theIJwouldappointa
representative to play a dual advocateguardian role. For example, if a
respondentwerefoundincompetenttodeterminehisowninterestsinthe
removalproceedings,therepresentativemight,actinginherguardianrole,
oppose removal even though the respondent expressed resignation or a
desire to be removed.176 The representative might also, even if unable to
obtain express consent, access medical or other confidential records
necessarytomaketherespondentscaseorcontactpotentialwitnesseson
therespondentsbehalf.
Tobesure,itrequiresagreatdealofmentalflexibilityforaguardianto
playarangeofrolesdependingonherclientscapacity,butcourtsalready
requirerepresentativestoplayahybridguardiancounselrole,tovarying
degrees,inothercontexts.Themostcommonareainwhichlawyersmust
balancethetworolesisinfamilylawproceedingswherethecourtappoints
anattorneytorepresentaninterestedminor.177Asonecourtdescribedthis
role:
[A]lawguardianappointed...inacustodycase...isnotstrictly
an arm of the Court but, rather, has the hybrid role of
attorney/advocate and investigator/proponent of the childs best
interests. The balancing of those roles in a particular case may
welldependontheage(s)andmaturityofthechild(ren).178
175SeeWhitmorev.Arkansas,495U.S.149,163(1990)(explaininginthehabeascontextthat
nextfriendstandingisbynomeansgrantedautomaticallytowhomeverseekstopursuean
actiononbehalfofanother).
176SeeDEPORTATION BY DEFAULT, supranote18,at 2627(notinginterviewswith mentally
disabledindividualswhoindicatedthattheymightsignadeportationorderjusttogetout
of detention, but who seemed not to understand that deportation would mean returning to
theircountryoforigin).Theauthorspokewithoneprivateimmigrationattorneywhohada
GAL appointed in federal court in order to pursue relief over his clients opposition. Each
time the attorney submitted papers in that protracted litigation, he sought the guardians
approval. In that case, the guardian was something of a formality, as the attorney had
representedthisclientforyearsandknewhimfarbetterthantheguardian,andastheclients
best interests (with respect to the litigation) were relatively clear. Telephone Interview with
anonymousprivateattorney(Jan.5,2011).
177See, e.g., In re Marriage of Rolfe, 699 P.2d 79, 8687 (Mont. 1985) (finding in custody
dispute that a childs appointed attorney should advocate his clients best interests but give
serious consideration to her wishes); Collins v. Tabet, 806 P.2d 40, 49 (N.M. 1991) (The
guardian ad litem thus may fulfill the dual role of providing information to the court to
enableittopassonthereasonablenessofasettlement,whileatthesametimeprotectingthe
wardsinterestsbyzealousadvocacyandthorough,competentrepresentation.);Carballeira
v. Shumway, 710 N.Y.S.2d 149 (App. Div. 2000) (holding that the law guardian properly
advocatedpositionatoddswithclientsexpresswishes).
178Bradtv.White,740N.Y.S.2d777,78182(Sup.Ct.2002)(holdingthatlawguardiansare
Moregenerally,theModelCodeofProfessionalResponsibilityEthical
Considerationsexplainthat:
Any mental or physical condition of a client that renders him
incapable of making a considered judgment on his own behalf
casts additional responsibilities upon his lawyer.... If a client
under disability has no legal representative, his lawyer may be
compelled in court proceedings to make decisions on behalf of
the client.... If the disability of a client and the lack of a legal
representativecompelthelawyertomakedecisionsforhisclient,
thelawyershouldconsiderallcircumstancesthenprevailingand
act with care to safeguard and advance the interests of his
client.179
Implicit in this advice is the recognition that lawyers sometimes will

findthemselvesinaquasiguardianrole(i.e.,whereitwouldbeagainstthe
clients interests to seek guardianship) and that the role may vary over
time,particularlywithaclientwhosecompetencyfluctuates.Thisguidance
has been cited in the criminal context for the proposition that defense
attorneys can and should take actions to protect the interests of
significantlyimpairedclients,evenagainsttheirwishes.180Whatthesecases
from the familylaw context and elsewhere show isthat, while there may
be very good reasons to require advocates to serve their clients wishes
wheneverpossible,thereisprecedentforestablishingarepresentationrole
thatcombinesadvocacywithatleastsomeprotectiveness.
For my proposed system to function, the DOJ would have to take a
number of steps beyond funding representation. First, it would need to
promulgate a canon of ethics specific to the immigration system that
requiredrepresentativesappointedinaguardianshipcapacitytopreserve
entitled to quasijudicial immunity). In New York, the legislature just revised the
terminologyforlawyersrepresentingminorsinfamilycourt;whereastheyusedtobecalled
law guardians, a term suggesting a role with a guardianship aspect, they are now called
attorney[s] for the child. Representation of Children, 2010 N.Y. Sess. Laws Ch. 41
(McKinney). There is no indication, however, that this change in terminology now prevents
attorneysfromcontinuingtoexercisetheirownjudgmentabouttheirclientsbestinterest.
179MODEL CODEOF PROFL RESPONSIBILITY EC712(1983).EC712does,however,addthe
followingcaveat:Butobviouslyalawyercannotperformanyactormakeanydecisionwhich
thelawrequireshisclienttoperformormake,eitheractingforhimselfifcompetent,orbya
duly constituted representative if legally incompetent.Id.; see also MODEL RULES OF PROFL
CONDUCT R. 1.14(a) (2008) (explaining that [w]hen a clients capacity to make adequately
considereddecisionsinconnectionwitharepresentationisdiminished,...thelawyershall,
asfarasreasonablypossible,maintainanormalclientlawyerrelationshipwiththeclient).
180See Thompson v. Wainwright, 787 F.2d 1447, 145052 (11th Cir. 1986) (holding that a
criminaldefenselawyerfailedtoprovideeffectiveassistancewhenhefollowedhismentally
disabled clients instruction not to search for mitigating evidence); State v. Aumann, 265
N.W.2d 316, 319 (Iowa 1978) (holding that it was proper for a criminal attorney to pursue
appealoverpotentiallyincompetentdefendantsobjections).
theirclientsautonomyandtaketheirexpressedwishesintoaccounttothe
extentpossible,muchasGALsdowhentheyrepresentchildreninvarious
proceedings.181 Second, these representatives would have to be subject to
EOIR oversight, just as other attorney and nonattorney representatives
are.182 To facilitate quality control, it would be important for the DOJ to
createaspecialunitwithinimmigrationcourtstotrainrepresentativesand
monitor their performance. In the New York housingcourt context, for
example,thecourthasaGALprogram,currentlyrunbyanattorneywitha
socialworkdegree,thatrecruits,trains,andservesasaresourceforGALs
whorepresentmentallydisabledtenants.183
Of course, the DOJ could provide counsel but leave it to counsel to
locate a guardian. While such a system might work, my proposal makes
moresense.Onecanassumethatappointedattorneys,ifpubliclyfunded,
would be resourcestrapped. It might be easy for them to locate family
members in some cases (and my proposal takes that into account by
suggesting that, where an appropriate family member was at hand, an
appointed representative could have such an individual appointed as a
guardian).Inmanyothercases,noappropriatefamilymemberisavailable.
Todevelopareadypoolofvolunteerguardians,advocateswouldhaveto
drawonthealreadyoverstretchedsupplyofprobonoattorneyswhoserve
other unrepresented clients. Moreover, a requirement that appointed
representativessearchforsuchavolunteerwouldinevitablydistractthem
from the more important tasks of determining what relief is possible and
preparingevidencetosupportanapplicationforrelief.Forthesereasons,it
makes the most sense to allow for hybrid representation where a
respondent is severely impaired and where there is no volunteer GAL
readilyathand.
Even though the reform I am proposing is more substantial than the
mereappointmentoflayguardianssuchasfamilymembers,Iexpectitwill
draw objections, both practical and legal, from advocates. On a practical
level, accredited representatives may not advocate as skillfully as
attorneys.184 Moreover, the dual advocateguardian role is a difficult one,
and there is the risk that, in juggling the two, an advocate (whether an
attorneyornot)willfallshortinoneorbothroles.Shemay,forexample,
181Cf.AMER. BAR ASSN, STANDARDSOF PRACTICEFOR LAWYERSWHO REPRESENT CHILDREN
IN ABUSE AND NEGLECT CASES,atB(1996),availableathttp://www.americanbar.org/content

/dam/aba/migrated/family/reports/standards_abuseneglect.authcheckdam.pdf (instructing
attorney to represent childs expressed preferences except in limited circumstances where
substitutionofjudgmentbecomesnecessary).
182See8C.F.R.292.3,1003.10108(2010).
183SeeN.Y.C.CivilCourtHousingPart,ProspectiveGuardiansAdLitem,N.Y. STATE UNIFIED
CT. SYS., http://www.nycourts.gov/courts/nyc/housing/GALprospective.shtml (last visited

Apr.8,2011).
focus too much on figuring out what a clients best interests are and not
enough on preparing evidence and legal arguments to make his case. Or
shemaybecometoofocusedonwinningand,asaresult,givetheclients
wishes, priorities, and general perspective too little weight in defining
success.
Theseareimportantconcerns,butIwouldarguetheyareoutweighed
bythebenefitsofmyproposal.Assetforthabove,inlightofthepolitical
situationandEOIRsgeneralshortageofresources,aproposalthatrequires
anattorneyineverycaseinvolvingasignificantmentaldisability,andtwo
representatives in many instances, is far less likely to materialize. And in
the meantime, under the status quo of only sporadic protection, many
individuals will either be wrongfully removed, often to dangerous
situations, or will suffer prolonged immigration detention; many
individuals will suffer both. This is a problem that has festered for over
fiftyyears,sinceCongressfirstdirectedtheAttorneyGeneraltoprescribe
safeguards in 1952.185 While there are real drawbacks to hybrid
representation,thesecouldbeminimizedbylimitingthisrepresentationto
cases where close family members or friends are not readily available.
Lawyerscananddorepresentclientswithimpairedcompetenceinvarious
othercontextsasdescribedabove;theycandothesamehere.
As for the proposed use of accredited representatives, these
representatives(forbetterorworse)areanessentialpartofthepatchwork
of legal assistance available to lowincome noncitizens. The accreditation
process is a meaningful one,186 and, as previously mentioned, accredited
representatives have been found to provide a high level of service
possibly higher than that provided by many attorneys.187 While this
solution isfar from perfect, it may be the best possible optionand itisat
leastastart.
Related to these practical issues, there is case law suggesting an
aversion both to nonattorney representation and to the hybrid model of
representation.Iaddressthesetwolinesofcasesinturn.Theconcernabout
nonattorneyrepresentationoftenariseswhenlaymentrytobringsuiton
behalfoftheirchildren.Anumberofcourtshaverejectedthesesuits,allon
essentiallythesamereasoning:(1)therighttoappearproseisapersonal
rightthatchildrenarenotcompetenttoexercise;and(2)childrensclaims
maybejeopardizedbyinexpertrepresentation.188
185ImmigrationandNationalityAct,Pub.L.No.82414,242(b),66Stat.163,209(1952).
188See,e.g.,Johnsv.Cnty.ofSanDiego,114F.3d874,87677(9thCir.1997);OseiAfriyiev.
Med. Coll. of Pa., 937 F.2d 876, 88283 (3d Cir. 1991); Cheung v. Youth Orchestra Found. of
Buffalo,Inc.,906F.2d59,6162(2dCir.1990);Meekerv.Kercher,782F.2d153,154(10thCir.
1986)(percuriam);cf.Brownv.OrthoDiagnosticSys.,Inc.,868F.Supp.168,17172(E.D.Va.
However,thesecasesrestonpolicyconsiderationsthatareabsenthere.
First,theguardiansinthesecaseswereallnonattorneyparentsunskilled
inthelaw,suchthattheirattemptstolitigatethecasesdirectlyjeopardized
theirchildrensinterests.Inonecase,Gallov.UnitedStates,itwasespecially
clearthatthecourtwasconcernedaboutlitigationskillsandnotaboutrole
confusion because the court actually suggested that, if the parent were
unable to retain counsel, the court would consider appointment of a
guardian ad litem or other attorney to represent [the childs] interests.189
My proposal alleviates this concern by requiring that representatives be
skilledandaccredited.
More importantly, these cases reflect a general anxiety about the
presenceofproselitigantsinfederalcourtandtheburdenstheyimposeon
the court (and sometimes on their adversaries as well). The Cheung
opinion, in particular, plainly was reacting against what it called the
potentially abusive nature of that suit, a seemingly frivolous claim that
anorchestrahaddiscriminatedagainstthedaughterbyplacinghertoofar
backintheviolinsection.190Myproposallessenstheburdenonimmigration
courtsbyhelpingthemhearthecasestheyarerequiredtohear.Finally,in
atleastsomeofthecases,thewardsminoritystatustolledanyapplicable
statuteoflimitations,whichmeantthatthecourtcouldthrowthesuitout
withoutprejudicingtheminorsabilitytobringsuitproseoncehereached
adulthood. Unrepresented respondents, by contrast, will not be able to
defendtheirrightsdowntheroad,eveniftheircapacitiesimprove.
Indeed, at least two courts have allowed nonattorney parents to
represent their children and have distinguished the Cheung line of cases
basedondifferentpolicyconsiderations.InMaldonadov.Apfel,forexample,
the district court distinguished Cheung and allowed nonattorney parents
toappearproseonbehalfoftheirminorchildreninSupplementalSecurity
Income (SSI) cases.191 The court reasoned: (1) if parental representation
were not allowed, childrens statutory rights often would not be
vindicated; (2) SSI cases were more amenable to nonattorney
representation because, in cases where an individual was unrepresented
before the agency court, the reviewing court was required to conduct a
searching investigation to determine if all of the relevant facts were
sufficiently developed and considered; (3) SSI cases were less prone to
abuse than those at issue in Cheung; and (4) because families rely on SSI
benefits,theclaimantshadaparticularinterestintimelyresolutionofthe
1994) (stating that a nonattorney representative creates unusual burdens not only for the
partyherepresents,butalsoforhisadversariesandthecourt),citedinJohns,114F.3dat877.
189Gallov.UnitedStates,331F.Supp.2d446,449n.6(E.D.Va.2004).
190SeeCheung,906F.2dat61.
191SeeMaldonadov.Apfel,55F.Supp.2d296,303(S.D.N.Y.1999).
claims.192 The less formal nature of removal proceedings, which are more
likeSSIhearingsthanfederalcourtlitigation,isanadditionalreasonwhy
skillednonlawyersmaybeadequate.
There is another line of cases calling my proposed remedy into
question: involuntary commitment cases, in which courts have held that
appointment of a guardian ad litem cannot satisfy the constitutional
requirementofrepresentativecounsel.193Thesecases,however,appearto
bespecifictothecontextofinvoluntarycommitment.Becausecommitment
constitutes a unique deprivation of autonomy and liberty, often based on
nothing more than an individuals perceived best interests, it makes
sensetorequireanarticulateadvocatetoargueagainstcommitmentrather
thanaguardianwhocouldconceivablylookatthesituationfromtheexact
same position as the authority seeking to commit the individual. By
contrast,inremovalproceedings,neithertheIJnortheDHStrialattorney
ischargedwithprotectingtherespondentsbestinterests.
Moreimportantly,thepotentiallossofautonomythatconcernscourts
reviewingguardianshiprepresentationincommitmentproceedingsisjust
asproblematicifanimmigrationrespondenthasaseparateguardianand
advocate as if he has a hybridrepresentative, since on the former model
theadvocateistakinginstructionsfromtheguardianratherthanfromthe
respondent anyway. Thus these cases say nothing about whether it is
necessary or preferable to separate out the advocate and guardian roles.
Thesecasesdo,however,illustrateoneconcernthatregulatorsshouldbear
inmind:theimportanceofclearguidanceforguardiansastotheirroles.In
Lessard v. Schmidt, for example, the court seemed particularly troubled by
the fact that Lessards guardian d[id] not view his role as that of an
adversary counsel and specifically refused to argue against interim
commitment while further evidence was gathered.194 Further troubling to
thecourtwasageneralstudyshowingthat,inWisconsincivilcommitment
proceedings,guardiansseemedtoproceedalmostindependentofthewill
of the clientward, to accomplish this.195 The DOJ should address
192Id. at 303, 305 n.11 (internal quotation and alteration marks omitted); see also Harris v.
Apfel,209F.3d413,41617(5thCir.2000)(followingMaldonado).
193Lessard v. Schmidt, 349 F. Supp. 1078, 1099 (E.D. Wis. 1972), vacated and remanded on
other grounds, 414 U.S. 473 (1974); see also Suzuki v. Quisenberry, 411 F. Supp 1113, 1129 (D.
Haw.1976),revdinpartonothergrounds,Suzukiv.Yuen,617F.2d173(9thCir.1980);Lynchv.
Baxley, 386 F. Supp. 378, 389 (M.D. Ala. 1974); Quesnell v. State, 517 P.2d 568, 580 (Wash.
1973).
194Lessard,349F.Supp.at1097.
195Id. at 1099 (internal quotation marks omitted); see also Quesnell, 517 P.2d at 57577
(voicingconcernovertheappointedguardianspassivenessandperfunctoryrepresentation);
cf. Lynch, 386 F. Supp. at 389 (holding, in the involuntary commitment context, that an
appointedguardianwouldbeasufficientprotectionif,butonlyif,theappointedguardianis
alicensedattorneyandoccupiesatrulyadversaryposition).
autonomyconcernsbyprovidinginitsregulationsthataclientsexpressed
wishesshouldbecentral,overriddenonlyinextremecases(suchaswhena
client is resigned to removal but the representative determines that he
wouldbeingravedangerifremoved).
Whatever form representation takes, funding will be a major issue,
both in terms of the scope of the solution and in terms of which
decisionmakers could take the initiative. Congress could facilitate a
representation program by appropriating funding, or by expressly
authorizing the DOJ to spend general funds on the program. As a recent
example, in the William Wilberforce Trafficking Victims Protection
ReauthorizationAct,CongressdirectedtheDepartmentofHHStoprotect
unaccompanied minors placed in removal proceedings, authorizing it to
appointchildadvocatestopromotethechildsbestinterestandtoaward
grantstovoluntaryagenciestocarryoutthisproject.196Thesamecouldbe
doneforadultrespondentswithseriousmentaldisabilities.Evenwithout
suchanactionbyCongress,however,theDOJcouldexpendgeneralfunds
on the program, particularly in light of the statutory command that the
AttorneyGeneralprescribesafeguardstoprotecttherightsandprivileges
of individuals who cannot be present at their hearing because they are
incompetent.197
Whether or not Congress or the DOJ create a system for appointing
representation,theDOJmustreviseitsregulationstoclarifythattheDHS
maynotappearonbehalfofincompetentrespondentsastheircustodian.
The current regulation198 indiscriminately allows custodians to appear for
incompetentrespondents,eventhough,underthemassscaleimmigration
detention scheme that has arisen since the regulations were first
promulgated, the custodian most often is a DHS employee or contractor.
196See William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008,
Pub.L.No.110457,235(c)(6),122Stat.5074,5079(tobecodifiedat8U.S.C.1232(c)(6)).
197See8 U.S.C. 1229a(b)(3) (2006). Although Congresss use of the term present is
ambiguous, it would be reasonable (and in fact is constitutionally required) for the DOJ to
readtheprovisionasrequiringsafeguardswhereanindividualisnotfullypresentmentally.
Based on this statutory requirement, the DOJ could conclude that spending generally
appropriated funds is permissible as reasonably necessary in carrying out an authorized
functionorwillcontributemateriallytotheeffectiveaccomplishmentofthefunction,andifit
is not otherwise prohibited by law. See In re Internal Revenue Serv. Fed. Credit Union
Provision of Automatic Teller Mach., 66 Comp. Gen. 356, 359 (1987) (discussing the federal
agencyexpendituresstatute,31U.S.C.1301(a));seealsoBriefforAIC,supranote41,at916.
198The current regulation allowing custodians to appear on behalf of a respondent, 8
C.F.R. 1240.4 (2010), was taken verbatim from former rule 8 C.F.R 242.11, which was
referencedasearlyas1965.SeeInreStoytcheff,11I.&N.Dec.329(B.I.A.1965).Priortothe
firstmandatorydetentionprovisionin1988,thegeneralpracticewasnottodetainnoncitizens
inremovalproceedings,andcertainlynotformorethanbriefperiods,unlesstheywerearisk
tonationalsecurity.SeeInrePatel,15I.&N.Dec.666,666(B.I.A.1976);Heeren,supranote85,
at610.ButseeInreMoise,12I.&N.Dec.102(B.I.A.1967).
Despite the anachronism of this language and the obvious conflict of

interestitposes,DHSDetentionandRemovalofficialshaveappearedon
behalfofincompetentdetaineesand,insomecases,havebeentreatedas
guardians.199 Revising this regulation is one simple, costless way to
improvethesystem.
2. OtherProtections
In addition to representation and/or guardianship, other

accommodationsmightbenecessaryonacasebycasebasis.Forexample,
asylum determinations generally hinge on whether an applicant has
testifiedcredibly;thatis,consistently,persuasively,andinsufficientdetail
toconvincethefactfinderthatsheisdescribingeventsfrommemory.200A
mentallyincompetentasylumapplicantlikeCarlos,201orevenapotentially
competent but seriously disabled applicant like Nadine,202 may be unable
to do so.203 Similarly, applications for cancellation of removal often hinge
onanapplicantsabilitytotestifyinawaythatdemonstratesgoodmoral
characterandremorseforanypriorbadacts,whichmaybeimpossiblefor
individuals with certain disabilities. (Indeed, in other contexts, severe
impairmentsmaydisqualifyawitnessfromtestifyingaltogether204ormay
be used to impeach her credibility.)205 Where a respondent is seriously
impaired,judgesmustberequiredtolooktootherevidencesupportingthe
application and ensure that the applicant is assisted in gathering such
evidence. Even where an individual does not express fear of returning to
herhomecountry,thecourtshouldtakestepstodeveloptherecordasto
whether she might nonetheless be in danger, i.e. because of her mental
disability.206Inanumberofcountries,personswithmentaldisabilitiesare
199SeeBriefforAIC,supranote41,at2224;FrancoGonzalesComplaint,supranote37,at5;
TelephoneInterviewwithanonymous governmentlawyer(Oct.15,2010)(notesonfilewith
author).
200Seesupranote51.
201Seesupratextaccompanyingnotes115.
202Seesupratextaccompanyingnotes1718.
203See Atkins v. Virginia, 536 U.S. 304, 32021 (2002) (noting that mentally disabled
individualsaretypicallypoorwitnesses).
204SeeDistrictofColumbiav.Armes,107U.S.519,52122(1882)(holdingthat,totestify,a
witness must be capable of giving a correct account of the matters which [the witness] has
seenorheardinreferencetothequestionsatissue).
205Garrettv.State,105So.2d541,547(Ala.1958);MichaelD.Emert,Commentary,Mental
DisorderinWitnesses:AnOverviewofCompetencyandCredibilityIssues,41ALA. L. REV.167,172
(1989);seealsoDEPORTATION BY DEFAULT,supranote18,at38(describingcaseinwhichDHS
used evidence that [a respondent] had a mental disability to prove he was not a credible
witness).
206The UN High Commissioner for Refugees, for example, has advocated for a rule that
wouldprotectindividualsfacingremovaliftheyexpressfearortheauthoritieshavereason
at risk of institutionalization under conditions that could amount to

persecution.207
Another potential accommodation, borrowed from the context of
removal proceedings involving minors, would be to alter the courtroom
environment to reduce the stress that can trigger symptoms of mental
illness and inhibit competency. For example, judges could take off their
robes,makeanefforttospeakwithlesstechnicallanguage,andgenerally
fosteralessformal,lessthreateningenvironment.208Certainly,itwouldbe
important for nondangerous detainees not to be shackled or otherwise
physically restrained, to be allowed to wear nonprison clothing, and to
have emotional supports available in the courtroom (such as family,
friends,clergy,oratherapist).Further,hearingscouldbescheduledduring
timesofdaywhenrespondentssufferleastfrommedicationsideeffects.209
Perhaps the most controversial potential accommodation is
tobelievetheywouldbeindanger.UNHCRCommentsonInterimRuleonInspectionand
Expedited Removal of Aliens; Detention and Removal of Aliens; Conduct of Removal
Proceedings;andAsylumProcedures,July7,1997,at3031.
207 See Ex Parte Application for a Temporary Restraining Order at 26, FrancoGonzales v.
Holder,No.10CV02211DMG(DTB)(C.D.Cal.Nov.15,2010)(ThroughouttheAmericas,
persons with mental disabilities . . . are often confined against their will and without due
process, and may be left to languish for years, at times for their entire lives, in deplorable
conditions....Somelieintheirownwaste,areshackledtotheirbeds,wasteawayincaged
beds,oraretiedoutdoorswithnoprotectionfromtheelements.Somearedeprivedoffood,
medication, or clothing. Some are beaten. Some are raped. (quoting JAVIER VASQUEZ, PAN
AM. HEALTH ORG. HUMAN RIGHTS AND HEALTH: PERSONS WITH MENTAL DISABILITIES 2
(2008))); see also Tchoukhrova v. Gonzales, 404 F.3d 1181, 119394 (9th Cir. 2005) (detailing
horrifictreatmentofdisabledchildreninRussiaandfindingthatthistreatmentamountedto
persecution),vacatedandremandedonothergrounds,549U.S.801(2006);InreMoscosoZuniga,
A 72110031 (B.I.A. Oct. 5, 2007), available at http://www.lexisnexis.com/practiceareas/
immigration/pdfs/web918b.pdf;RandalC.Archibold,AbusesFoundatMexicanInstitutionsfor
Disabled, N.Y. TIMES, Nov. 30, 2010, at A10 (detailing abusive treatment of disabled
individuals in Mexican institutions); Julie Deardorff, Mom Wins Asylum for Son with Autism:
INSAgreesBoyFacedPersecutioninPakistanBecauseofHisDisability,CHI. TRIB.,(Feb.21,2001),
http://articles.chicagotribune.com/20010221/news/0102210260_1_politicalasylumcases
socialgrouppersecution (reporting grant of asylum to Pakistani applicant based on the risk
thathewouldbepersecutedforhisautism).
208Anystepstolessentheformalityoftheproceedingswouldhavetobeaccompaniedby
explicitwarningstorespondentsaboutthenatureoftheproceedings.Manymentallydisabled
respondentsappearnottograspthatremovalproceedings canresultinphysicalremovalto
their country of nationality, and this problem could worsen were proceedings made less
formal. The DOJ should consult advocates and mental health experts as to how to reduce
stresswhileensuring,tothemaximumextentpossible,thatthestakesareclear.
209Cf. N.Y. CNTY. LAWYERS ASSN, THE NEW YORK CITY HOUSING COURT IN THE 21ST
CENTURY: CAN IT BETTER ADDRESS THE PROBLEMS BEFORE IT? 3536 (2005), available at
http://www.nycla.org/siteFiles/Publications/Publications195_0.pdf (noting that certain
psychiatricmedicationscausesideeffectsthatareworstinthemornings,andrecommending
afternoonhearingsforindividualsonthosemedications).
administrative termination where no other possible accommodations will

ensureameaningfulhearing.Infact,thenewImmigrationJudgeBenchbook
chapter on mental illness suggests that IJs consider termination but
acknowledges that, so far, the BIA has not allowed this remedy.210
Explicitly authorizing IJs to terminate cases based on a respondents
incompetence would reduce the risk of wrongful removals. Perhaps of
equalimportance,suchauthoritywouldaffordIJssomeleverageoverthe
DHS.Withoutthisleverage,itisextremelydifficultforIJstopersuadethe
DHSattorneys to produce medical evidence bearing on competency or to
facilitate evaluation.211 The threat of termination or closure would also
motivatetheDHStoprovidebettermentalhealthtreatmentsoastorestore
competencywhereverpossible.212
CONCLUSION
Every day, immigration judges face unrepresented respondents who

present signs of severe mental impairment and possible incompetence.
Theyaregivennoresourcesorguidanceonhowtoaddressthesituation.
Every day, noncitizens are ordered removed from the United States
withoutdueprocesseventhough,iftheirstorieswereactuallyheard,they
mightfindasylumhereorotherformsofrelief.Inrecentyears,advocates
haveincreasinglyfocusedonthisproblem,andgovernmentofficialshave
beguntoacknowledgeitsseverity.ThisArticleisintendedtoadvancethe
discussion, and provide both theoretical and practical guidance to the
decisionmakers who must address the problem. It departs from the
perspective of many advocates by suggesting a scaledback solution that
would require significantly less funding than other proposals but would
210Seesourcecitedsupranote34andaccompanyingtext.
211DEPORTATIONBYDEFAULT,supranote18,at48(quotingoneIJasexplainingthat[w]hen
a judge suspects that there is a mental disability, there are problems with enforcing
cooperationfromDHSbecausejudgeshavenocontemptauthorityortoolstousetomakeICE
cooperateingettingdocumentstogetexternalcorroborationthatthereisanillness).
212The dismal current state of mental health services in immigration detention is well
documented. See FLA. IMMIGRANT ADVOCACY CTR., DYING FOR DECENT CARE: BAD MEDICINE
IN IMMIGRATION CUSTODY 33 (2009), available at http://www.fiacfla.org/reports/Dying
ForDecentCare.pdf(OneemailfromDennisSlate,thedetentionsystemstopmentalhealth
official,notedthat,whiletheratioofmentallyillinmatestostaffwas1to10inprisonsforthe
mentally ill and 1 to 400 in the federal Bureau of Prisons, the ratio was 1 to 1,142 in
immigrationdetentionamindbogglingdisparity.);Ramshaw,supranote41(notingfindings
by Texas Appleseed that detention facilities dont consistently follow mentalhealth
standards, and often dont have enough mentalhealth workers to handle the estimated 15
percent of detainees suffering from mental illness[] [and that] [u]ntil early [2009], . . . two
Texasdetentioncentershousingacombined2,700peoplesharedasinglepsychiatrist.Asa
result, detainees with mental health needs miss medicine doses, get misdiagnosed or are
prescribeddrugswithwhichtheyarentfamiliar).
nonethelessaffordskilledrepresentationtothemostvulnerablepopulation
intheremovalsystem.Ihopethatpolicymakerswillrespondwithsimilar
pragmatism,and that after nearly sixty years of paralysis, we can at least
begintofulfillthepromiseofdueprocessinthislongneglectedcornerof
ourremovalsystem.

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HearingDifficultVoices:TheDue

Every day, immigration judges face unrepresented respondents who

MENTAL DISABILITY, UNFAIR HEARINGS, AND INDEFINITE DETENTION IN THE US IMMIGRATION

The Immigration and Nationality Act, in language dating from 1952,

A14 (quoting Dana L. Marks, Immigration Judge, President, National Association of

Office for Immigration Review (EOIR) to work with experts and

JUDGE BENCHBOOK, http://www.justice.gov/eoir/vll/benchbook/tools/MHI/index.html (last

providers or individual private attorneys to obtain representation for a

on criminal charges and was appearing by videoconference from a psychiatric hospital,

7, In re LT (Sept. 14, 2010) [hereinafter Brief for AIC], available at http://www.legalaction

unavailable the custodian of the respondent shall be requested to appear on behalf of

safeguard ofnot accepting admissions from anincompetent respondent;47

Although the particular legal issue of what safeguards are due to

based on unsworn statements about the petitioners alleged communist

In view of the stakes, the Court warned, [m]eticulous care must be

The Supreme Court has required appointment of counsel in certain

noncitizens interest in remaining here as a liberty interest.84 Of course,

87OFFICE OF IMMIGRATION STATISTICS, IMMIGRATION ENFORCEMENT ACTIONS 1 (2009),

95Admittedly, the interest at stake in Lassiterparental rightsis extremely important as

government also has an interest in a fair adjudicative system, an interest

102AM. BAR ASSN, supranote96,at216&nn.12124(citingEXEC. OFFICEFOR IMMIGRATION

Under the logic of the Supreme Courts civil dueprocess

The third relevant area of law is the constitutional significance of

For mentally impaired individuals to be afforded dueprocess

prosecutors Brady obligations include the obligation to disclose evidence bearing on

significance of cognitive limitations as well as mental illness. Failing that,

to statutory interpretation or the application of law to facts.155 In other

attorney guardians may not be adequate to protect the rights of

accredited representatives, persons of good moral character with a preexisting relationship

Jacobs,TheStateofAsylumRepresentation:IdeasforChange,16GEO. IMMIGR. L.J.739,758(2002)

information to provide representation at least as competent as

170Amended Order Re Plaintiffs Motion for a Preliminary Injunction at 38 Franco

court, an individual must demonstrate to EOIR that he is sufficiently trained, experienced,

Implicit in this advice is the recognition that lawyers sometimes will

181Cf.AMER. BAR ASSN, STANDARDSOF PRACTICEFOR LAWYERSWHO REPRESENT CHILDREN

IN ABUSE AND NEGLECT CASES,atB(1996),availableathttp://www.americanbar.org/content

183SeeN.Y.C.CivilCourtHousingPart,ProspectiveGuardiansAdLitem,N.Y. STATE UNIFIED

CT. SYS., http://www.nycourts.gov/courts/nyc/housing/GALprospective.shtml (last visited

196See William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008,

Despite the anachronism of this language and the obvious conflict of

In addition to representation and/or guardianship, other

at risk of institutionalization under conditions that could amount to

administrative termination where no other possible accommodations will

Every day, immigration judges face unrepresented respondents who

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