July 25, 2010

VII. Detailed Recommendations

 

To ensure fair immigration proceedings for people with mental disabilities:

To the United States Congress:

  • Expressly authorize mandatory appointment of counsel for non-citizens with mental disabilities in immigration proceedings, and appropriate necessary funds.
  • Amend the Immigration and Nationality Act (INA) to provide immigration judges with authority to order the release from detention of vulnerable non-citizens otherwise subject to mandatory detention under conditions that ensure their access to treatment.
  • Amend INA to provide immigration judges with authority to terminate proceedings in cases where the severity of a person’s mental disability makes ensuring fair proceedings impossible.
  • Pass The Protect Citizens and Residents from Unlawful Raids and Detention Act (S.3594) to ensure that US citizens are not erroneously detained or deported.

To the Department of Justice:

  • Issue police guidance and, where necessary, utilize the rulemaking authority delegated to the Attorney General in Section 240(b)(3) and Section and Section 103(g)(2) of the Immigration and Nationality Act to develop regulations that protect the rights of non-citizens with mental disabilities in immigration court proceedings, including authorizing immigration judges, in appropriate circumstances, to appoint counsel, terminate proceedings, and exempt individuals from mandatory detention.
  • Create an office of appointed counsel in immigration cases that should receive specialized training on mental disabilities.

To the Executive Office for Immigration Review (EOIR):

  • Develop regulations and guidelines for immigration judges to ensure that the rights of people with mental disabilities are protected in the courtroom, including by:
    • Setting a standard for competency to proceed in an immigration hearing.
    • Eliminating the regulation that a person who is “mentally incompetent” can be represented by the “custodian,” meaning the warden of the facility where he or she is detained.
    • Directing immigration judges to order a mental health evaluation where competency is in question.
    • Expressly prohibiting immigration judges from relying upon admissions of alienage by people with mental disabilities as the sole basis for the charge of removability even when represented by counsel or family or other support person if made out of court and/or before the person is represented.
    • Restricting the use of video-conferencing in cases where the non-citizen has, or appears to have, a mental disability.
  • Create a mental health docket, similar to the ORR juvenile docket, by which cases where a person has a mental disability can be afforded more time and specialized attention by immigration judges.
  • Expand and regularize training for immigration judges and other court staff, including interpreters, on recognizing mental disability in the courtroom and providing necessary accommodations.
  • Reject stipulated orders that lack protections for non-citizens with mental disabilities;
  • Work with disability rights and mental health experts to develop courtroom accommodations that will assist non-citizens with mental disabilities to participate in court.

To the Assistant Secretary of ICE:

  • Reinforce commitment to exercising favorable prosecutorial discretion in cases where it appears the non-citizen has a mental disability and is either incapable of presenting their case in court, or likely to prevail in his or her action for relief, including by:
    • Dismissing legally insufficient cases where the only evidence of alienage and deportability is the admission of a person with a mental disability.
    • Not opposing or appealing a grant of relief by the immigration court where the factors in an individual case favor the grant of relief.
    • Moving to terminate proceedings and withdraw the NTA in cases where the person is not able to present their case, even with legal assistance, due to the severity of his or her mental disability.
    • Joining in a “motion to reopen” in cases where a person with mental disabilities may be eligible for relief but was unable to present their claims in the prior hearing on account of their disability.
  • Provide trainings for ICE trial attorneys on recognizing and interacting with individuals with mental disabilities in the courtroom, and to ensure that they implement the policies of the Principal Legal Advisor as set forth above.
  • Ensure the cooperation of ICE trial attorneys in expeditiously providing the non-citizen’s medical records and mental health evaluations to the court for use solely in determining competency and the need for appointment of counsel.
  • Develop a firewall to protect detainee medical information so that non-citizens’ medical background can be used to accurately assess treatment needs and parole eligibility but will not be provided to the immigration court except for the purpose of determining competency and the need for appointment of counsel.

To the US Citizenship and Immigration Services (USCIS):

  • Develop guidance on asylum applicants to identify and accommodate individuals with mental disabilities and route appropriate cases to EOIR’s mental health docket.

To ensure that immigration courts are aware when a person has a mental disability:

To the Assistant Secretary of ICE:

  • Require a panel of medical professionals to conduct initial and periodic mental health screenings and evaluations in immigration detention facilities.
  • Require ICE staff and trial attorneys to inform the court when a non-citizen is suspected of having a mental disability.
  • Develop a firewall to protect detainee medical information so that non-citizens’ medical background can be used to assess competence and need for appointment of counsel but will not otherwise be provided to the immigration court for use in removal proceedings except by the detainee or his/her counsel.
  • Continue to work with advocacy organizations to develop a risk assessment tool that recognizes mental disability as identified through SSI benefits, documented history of mental disability, etc., and to explore Alternatives to Detention for those who cannot be released.

To reduce unnecessary detention during immigration proceedings:

To the United States Congress:

  • Amend Section 236(c) of the Immigration and Nationality Act to permit an exception to mandatory detention for vulnerable groups, including non-citizens with mental disabilities.

To the Assistant Secretary of ICE:

  • Ensure all policies on classification and detention of persons with mental disabilities require placement in the least restrictive setting during their immigration proceedings, in accordance with federal and human rights law.
  • Ensure that ICE officers adhere to federal law barring arrests of non-citizens receiving treatment at psychiatric facilities.
  • Ensure that the policy favoring release when asylum is granted but ICE takes an appeal is applied, particularly in cases of persons with mental disabilities.
  • Require involvement of medical professionals in facility mental health screenings who can recommend alternative placements to detention for individuals with significant mental disabilities.
  • Clarify that dispositions by “problem-solving courts” such as mental health courts and the effect of these decisions on the charges against a non-citizen will not be considered to be convictions for purposes of the INA.
  • Discontinue arrests of non-citizens with mental disabilities ordered to in-patient mental health treatment by criminal courts after finding a non-citizen defendant to be mentally incompetent.
  • Encourage and institutionalize the use of release on one’s own recognizance and, when necessary, bond where a detainee has a mental disability.
  • Ensure that detainees’ family and attorney are promptly informed when a detainee is removed from a detention center for emergency, short-term or long-term mental health treatment.
  • Ensure that a detainee’s family and attorney have access to any detainee transferred to a psychiatric facility for mental health treatment.
  • Develop procedures to be used at every facility where ICE detainees are held that identify detainees in need of in-patient psychiatric care.
  • Prohibit transfers of immigration detainees with mental disabilities away from family and community mental health services.

To the Executive Office for Immigration Review (EOIR):

  • Establish guidelines for administrative closure where a judge determines that a person in immigration proceedings is incompetent so that administrative closure would include:
    • The authority to order release of an individual from detention.
    • Periodic review by a court if the non-citizen remained in detention with the authorities required to justify continuing detention.
  • Require individualized hearings to determine whether detention is appropriate for individuals with mental disabilities once the court is on notice that a person has a mental disability, notwithstanding any otherwise-applicable laws mandating the detention of such individual.

To limit prolonged detention after deportation has been ordered:

To the Assistant Secretary of ICE:

  • Monitor and enforce the 90-day and 180-day post order custody review process for all detainees, especially those with mental disabilities who may not be able to advocate for their own release.
  • Ensure that people with mental disabilities are not indefinitely detained for “failing to cooperate” with removal by:
    • Providing appointed counsel throughout the post-order custody review process.
    • Clearly communicating to detainees what is expected of them during the post-order process and providing accommodations to detainees with mental disabilities.
    •  Exercising discretion not to charge a person with “failure to cooperate” or refer for federal prosecution where the person’s mental competency is in question, and not continuing detention on that basis.
    • Training DRO staff on how mental disabilities may affect the ability to comply.
  • Work with local mental health facilities and NGOs, including state protection and advocacy organizations, ahead of the 180-day post-order custody review to find placements in the community for people with mental disabilities not otherwise referred to an immigration judge for classifications as “specially dangerous.”
  • Rescind regulations that authorize indefinite detention for non-citizens judged to be to be “specially dangerous,” and replace with procedures for transferring such individuals to appropriate, secure psychiatric facilities after a civil commitment hearing at which the individual’s wishes are taken into account and he or she is represented by appointed counsel. If a civil commitment hearing finds that a non-citizen does not require in-patient psychiatric care, he or she should be released to appropriate community care.