Author: Melanie Navamanikkam, Associate Member, University of Cincinnati Law Review
On the heels of a Presidential election, Americans contemplate the President-elect’s promise to deport three million undocumented immigrants. While concerns of xenophobia and fairness for families with undocumented family members have geared immigration advisors and ‘safe haven’ cities to vocally express their opposition, the President-Elect’s proposal presents an opportunity to explore issues within immigration law that have troubled immigration courts for decades.
The grant of Due Process rights during immigration proceedings is a matter of great public interest. Embedded within the already complicated matter is a faction that concerns the Due Process rights to immigration proceeding respondents who are mentally incompetent. When adjudicating cases involving incompetent respondents, immigration judges are challenged to use limited regulations and undeveloped case law in their efforts to provide the fundamental fairness rights guaranteed by the Due Process Clause. American immigration laws, now more than ever, would benefit from a uniform framework that immigration judges can follow when hearing cases involving respondents with mental competency issues.
Constitutional and Regulatory Protections for Non-Citizens
Non-citizens subjected to immigration proceedings such as removal do not have the full protection of constitutional guarantees, but such proceedings must conform to the Fifth Amendment’s procedural Due Process requirements. The Code of Federal Regulations further define these procedural rights by guaranteeing that respondents have the right to “examine and object to the evidence against him or her, to present evidence in his or her own behalf and to cross-examine witnesses presented by the government,” and the right to “be represented at the hearing by an attorney or other representative qualified under 8 CFR part 1292.”
While these protections seem vaguely stated, leaving much to guesswork, the protections afforded to mentally incompetent respondents are even vaguer. For example, the Immigration and Nationality Act directs the Attorney General to “prescribe safeguards to protect the rights and privileges of the alien” when it is ‘impractical’ for them to be present at their proceedings due to their mental incompetency. This provision fails to specify two key issues: first, the provision fails to address whether a respondent needs to be physically absent or whether their inability to meaningfully participate in the proceeding, despite physical presence, would suffice; second, the provision fails to indicate how to measure what suffices as ‘safeguarding’ the non-citizen’s rights.
Federal immigration regulations also leave open questions of scope. In instances where the respondent is unable to appear for proceedings, the federal regulations state that respondents may be represented by an attorney, near relative, guardian, or friend who has been served a copy of the notice to appear on their behalf. In the absence of any of the above, federal regulation states that a custodian may appear on the respondent’s behalf. Immigration judges have held that such representation by one of the former mentioned atisfies the Due Process requirement. However, the provision fails to address what procedural safeguards exist in instances when an unrepresented respondent asserts mental incompetency, fails to appear at a hearing (either physically or through inability to meaningfully participate), has no prescribed representative that meet the requirements of the federal regulation, and has no custodian of record.
In re M-A-M-
In 2011, seemingly responding to the gaps in uniformity of procedural safeguards for mentally incompetent respondents, the Board of Immigration Appeals (“Board”) set forth the In re M-A-M- test, introduced as “a framework for immigration judges to follow when hearing cases involving respondents with mental competency issues.” The test’s decisive factors are whether the respondent understands the nature and object of the proceedings, can consult with the attorney or representative (if there is one), and whether the respondent has a reasonable opportunity to examine adverse evidence, present favorable evidence, and cross-examine witnesses. Unfortunately, the Board’s In re M-A-M- test failed to bridge the gaps created by the vague regulatory language.
The Board presumes all immigration respondents are competent. Therefore, judges are not required to apply the test unless the judge observes indications of mental incompetence based on the respondent’s function and behavior, testimonial evidence, or documentation submitted as part of the record. Once mental competency concerns have been established, and one of the test’s factors remains unsatisfied, the test provides the procedural safeguard of requiring the judge to take ‘measures’ to determine whether a respondent is competent enough to participate in the proceedings. The judge has discretion in determining what these measures should be. Since the burden of proving incompetence rests on the respondent, all the court must do is give the respondent more time to gather evidence of their incompetence or simply ask the respondent questions pertaining to their mental health history. The judge is then required to consider the results, and determine the respondent’s competence.
One alarming issue with the test is relying on judges to make decisions of mental competence, a diagnosis otherwise strictly reserved for medical doctors and trained mental health experts. The test also provides a procedural loophole. The test’s second decisive factor, how a respondent interacts with their counsel, is inapplicable to pro se respondents. Therefore, respondents who are represented by counsel are subjected to all three factors of the test while pro se respondents are not. Any test that purports to be in the interest of procedural due process, yet is wholly inapplicable to certain respondents based on technicalities, should not be looked to as a standard for ensuring fundamental fairness.
Therefore, the Board’s In re M-A-M- test should not be the test that immigration judges look to determine the scope of Due Process for mentally incompetent respondents. It does not provide a uniform standard for judges and opens immigration courts to the risk of widely differing standards of how to define competence and what should be considered sufficient ‘measures’ to safeguard incompetent respondents.
Solutions for the lack of regulatory standards include amending existing immigrations regulations to account for the vagueness in statutory language, or developing a new test that addresses the gaps and procedural loopholes that the In re M-A-M- test has created.
Amendments to federal regulations should define exactly how and what procedural safeguards will protect the rights and privileges of mentally incompetent noncitizen respondents to immigration proceedings.
In terms of a new test, the Board must implement true safeguards that provide practical guidance to immigration judges working to provide fair proceedings for mentally incompetent respondents. Government funded psychiatric evaluations, at the discretion of the judges, would act as one safeguard. In instances where an immigration judge observes a competency concern, judges should be required to offer respondents a funded psychiatric evaluation to support his or her competency claim. In the interest of judicial economy and taxpayer costs, judges would not be required to offer evaluations unless they have exhausted the In re M-A-M- safeguards, and mental competency is still a concern. By doing so, judges will avoid offering tests to respondents with superfluous claims of mental incompetence. The evaluations will aid immigration judges only in cases where medical expertise is needed to ensure fair trials for respondents who are truly at risk of the inability to meaningfully participate in their proceedings.
Such a development in immigration law will not quell all issues. One remaining concern is what standard judges should use to determine when to offer a psychiatric evaluation. Although it is likely that a few mentally incompetent respondents could still fall through the cracks, fewer will fall under the new system.
The vague law in place to protect mentally incompetent respondents of immigration proceedings do not provide sufficient procedural safeguards. Furthermore, the Board’s current framework proposed does not address the ambiguities in the law. Therefore, statutory amendments, or a new uniform standard that will produce uniform results, should be required before the impending proceedings of an estimated three million people. Such improvements in immigration law will aid immigration judges to fulfill their duty to provide the fairness required under the Due Process Clause.
Amy B. Wang, Donald Trump plans to immediately deport 2 million to 3 million undocumented immigrants, The Washington Post (Nov. 14, 2016, 10 PM), https://www.washingtonpost.com/news/the-fix/wp/2016/11/13/donald-trump-plans-to-immediately-deport-2-to-3-million-undocumented-immigrants/.
 Gene Johnson, ‘Sanctuary cities’ vow to protect immigrants from Trump plan, The Associated Press (Nov. 15, 2016, 7 PM), https://www.yahoo.com/news/mayors-sanctuary-cities-theyll-fight-trumps-plans-083054784.html.
 Mimi Tsankov, Incompetent Respondents in Removal Proceedings, Immigr. L. Advisor, April 2009, at 1.
 See Matter of Beckford, 22 I&N Dec. 1216, 1225 (BIA 2000).
 Removal entails a formal administrative proceeding that determines whether an alien resident should/can be removed from the United States and deported back to their home country.
 Reno v. Flores, 507 U.S. 292, 306 (1993).
 See 8 C.F.R. § 1240.10 (4) (2014).
 See 8 C.F.R. § 1240.3 (2014).
 See 8 U.S.C. § 1229a(b)(3) (2006).
 See 8 C.F.R. § 1240.10(c) (2014).
 See 8 C.F.R. § 1240.10(c) (2014).
 In Matter of E-, 2003 WL 23269901 (BIA Dec. 4, 2003).
 Supra 3 at 17.
 In re M-A-M-, 25 1. & N. Dec., 474 (B.I.A. 2011).
 Representing Clients with Mental Competency Issues Under Matter of M-A-M-, Legal Action Center, Nov. 30, 2011, at 1.
 25 I&N Dec. at 479.
 Id. at 477. (“[A]n alien is presumed to be competent to participate in removal proceedings . . . [a]bsent indicia of mental incompetency, an Immigration Judge is under no obligation to analyze an alien’s competency”).
 Id. at 480.
 Id. at 481-82.
 25 I&N Dec. at 481.
 Id. at 480.
 Franco-Gonzalez v. Holder, No. CV 10-02211 DMG (DTBx), 2013 U.S. Dist. LEXIS 186258, at *34 (C.D. Cal. Apr. 23, 2013) (The court dismissed the In re M-A-M test, stating that the majority of the safeguards were left to the judges’ discretion and therefore did guarantee that an incompetent alien could meaningfully participate in his proceedings).
 Id. at *8.
 Franco-Gonzalez, 2013 LEXIS 186258, at *31. (“Aspiring to a system that allows the mentally incompetent to similarly participate in the removal proceedings against them is not tantamount to “creating an entirely new system of benefits in immigration”).
 Exec. Office for Immgr. Review, U.S. Dep’t of Justice, Phase I of Plan to Provide Enhanced Procedural Protections to Unrepresented Detained Respondents with Mental Disorders (2013). (The Executive Office for Immigration Review already offers mental incompetency evaluations for immigration detainees. A similar safeguard could be implemented for non-detainee immigration respondents as well).
 Supra 24. (Defendants can hardly argue that it is audacious to require a Qualified Representative for mentally incompetent individuals in immigration proceedings when the INA itself has pronounced that some form of procedural safeguards are required for those who are mentally incompetent”).
 Brue v. Gonzales, 464 F.3d 1227, 1233 (10th Cir. 2006). (Example of the current system of review. This court held that immigration judges have no obligation to consider a represented immigration respondent’s mental competency because procedural safeguards are already in place).