July 25, 2010

Key Recommendations

To the United States Congress:

  • Expressly provide appointed counsel for non-citizens with mental disabilities in immigration proceedings.
  • Amend Section 236(c) of the Immigration and Nationality Act (INA) to exempt from mandatory detention vulnerable groups, including non-citizens with mental disabilities.

To the Department of Justice:

  • Issue legal guidance, and, where necessary, utilize the rulemaking authority delegated to the Attorney General in Section 240(b)(3) and Section 103(g)(2) of the INA, to develop regulations that protect the rights of non-citizens with mental disabilities in immigration court proceedings, including directing immigration judges in appropriate cases to appoint counsel; terminate proceedings; and exempt from mandatory detention individuals with mental disabilities.

To the Executive Office for Immigration Review:

  • Develop regulations and guidelines for immigration judges to ensure that the rights of people with mental disabilities are protected in the courtroom, including:
    • Set a standard for competency to proceed in an immigration hearing.
    • Eliminate 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.
    • Provide mandatory training for immigration judges to recognize mental disabilities and the judicial obligations to safeguard the rights of people who have mental disabilities.

To the Assistant Secretary of Immigration and Customs Enforcement:

  • Renew the commitment to exercising prosecutorial discretion in cases involving persons with mental disabilities.
  • Require ICE facility staff and ICE trial attorneys to inform the court (under a system with suitable protections) when a detainee is suspected of having a mental disability.
  • Encourage and institutionalize alternatives to detention, including supervised release to families and placement in community based treatment programs.

Detailed recommendations can be found at the end of this report.