July 25, 2010

V. Violations of the Right to a Fair Hearing in Immigration Court

I was very tired in court and it was difficult to understand…. Every time, to remember every detail—I just can’t. Ten years ago, five years ago, to think back to all that—it’s like reliving all of that.... In court, I said ‘just deport me’ because I thought I would be out of detention then but of course that wouldn’t have happened. I know that now.
—Alex K. (pseudonym), Chicago, IL, February 4, 2010.

Legal Standards Requiring Fair Immigration Hearings

A fair hearing is central to the protection of a person’s rights, and is the hallmark of a functional justice system. Human rights law guarantees that all persons appearing before a judicial proceeding receive “a fair and public hearing by a competent, independent, and impartial tribunal” in a determination of rights.[117]

Specific to the deportation context, the International Covenant on Civil and Political Rights (ICCPR), which the United States ratified in 1992, states in Article 13 that an alien “lawfully in the territory” may only be deported,

….in pursuance of a decision reached in accordance with law and shall, except where compelling reasons of national security otherwise require, be allowed to submit the reasons against his expulsion and to have his case reviewed by, and be represented for the purpose before, the competent authority or a person or persons especially designated by the competent authority.[118]

The UN Human Rights Committee, which monitors state compliance with the ICCPR, has interpreted the phrase “lawfully in the territory” to include non-citizens who wish to challenge the validity of the deportation order against them. In addition, the Human Rights Committee has made this clarifying statement: “if the legality of an alien’s entry or stay is in dispute, any decision on this point leading to his expulsion or deportation ought to be taken in accordance with article 13 … an alien must be given full facilities for pursuing his remedy against expulsion so that this right will in all the circumstances of his case be an effective one.”[119]

Similarly, Article 8(1) of the American Convention on Human Rights, which the United States signed in 1977, states:[120]

Every person has the right to a hearing, with due guarantees and within a reasonable time, by a competent, independent, and impartial tribunal, previously established by law … for the determination of his rights and obligations of a civil, labor, fiscal, or any other nature.[121]

Applying this standard, the Inter-American Commission on Human Rights has stated that deportation proceedings require “as broad as possible” an interpretation of due process requirements, and includes the right to a meaningful defense and to be represented by an attorney.[122] 

The ICCPR provides for the right to legal representation during deportation.[123] Moreover, UN principles governing all detainees state that a detainee should receive legal assistance if he or she is unable to afford a lawyer.[124] Recognizing that individuals with mental disabilities may need additional support and assistance in court, the Convention on the Rights of Persons with Disabilities—which the United States signed in 2009 but has not ratified—provides for the right to legal assistance so that individuals with mental disabilities can participate in proceedings concerning their rights. The CRPD requires that governments “ensure effective access to justice for persons with disabilities … including through the provision of procedural and age-appropriate accommodations” and further “take appropriate measures to provide access by persons with disabilities to the support they may require in exercising their legal capacity.”[125]

Historically, US domestic law has recognized the importance of a fair immigration hearing. In 1922, the US Supreme Court observed that deportation implicates the right to liberty, property and life, “or of all that makes life worth living.”[126] Moreover, US law recognizes that in light of the “drastic deprivations” that deportation may entail, “[t]here must be ‘clear, unequivocal, and convincing’ proof before a person can be deported.”[127]

Despite this recognition of the severity of deportation, the US immigration system has no meaningful safeguards to protect the rights of persons with mental disabilities. There is no right to appointed counsel, even for indigent persons with mental disabilities who cannot represent their interests without assistance.

The absence of such safeguards in the immigration system is unique, when compared to other branches of US domestic law and particularly where a person’s liberty is at stake. In the US criminal justice system, there is a constitutional right to a lawyer.[128] However even with attorney representation, a criminal defendant cannot be tried and convicted if he or she lacks the mental competence to understand and participate in the proceedings against him or her, and to assist in preparing a defense.[129]

Because immigration proceedings are not criminal, however, the same protections do not automatically apply. Outside of the immigration context, US law has recognized that in some non-criminal cases, appointing counsel may be required to protect a person’s rights.[130] However, to date, the right to appointed counsel for non-citizens, including those with mental disabilities, in immigration court has not been recognized in the United States, in violation of human rights standards. Without the right to counsel and other legal safeguards, the US government violates immigrants’ rights to fair immigration hearings and to counsel when they cannot represent their interests without assistance.

Access to Justice in the Absence of Law

The problem for judges is that there is not enough guidance out there on what to do; there are few published cases and those that are [available] show only the situations where the case made it through the proceeding.
 —Immigration judge, (name withheld), interviewed December 4, 2009.

US law authorizes the Attorney General of the United States to “prescribe safeguards to protect the rights and privileges” of non-citizens with mental disabilities in deportation proceedings through his administrative rule-making authority, and, more generally, to “establish such regulations” as are necessary to implement the Immigration and Nationality Act (INA).[131] To date, however, the Attorney General has not exercised this opportunity, and persons with mental disabilities facing deportation enjoy scant protections in immigration court.[132] Individuals who need support are even more vulnerable when attempting to navigate the courtroom without an attorney, as happens in the vast majority of cases.

Federal regulations require that non-citizens have a “reasonable opportunity” to present, examine and object to evidence.[133] However, these regulations only provide one additional instruction when it comes to elaborating what a “reasonable opportunity” means for a non-citizen with a mental disability:

When it is impracticable for the respondent to be present at the hearing because of mental incompetency, the attorney, legal representative, legal guardian, near relative, or friend … shall be permitted to appear on behalf of the respondent. If such a person cannot reasonably be found or fails or refuses to appear, the custodian of the respondent shall be requested to appear on behalf of the respondent.[134]

This regulation does not address the majority of the instances where a person with a mental disability can still be physically present in the courtroom, but lacks the ability to understand or participate in the hearing without accommodations. Rather than calling for the appointment of counsel when no assistance is available, the statute authorizes the “custodian”—the warden of the detention facility, if the person is detained—to appear as a representative.[135] This regulation clearly violates the right to fair and impartial proceedings since the warden or other custodial officer is generally employed by ICE—or is acting under contractual authority to detain on behalf of ICE, which is also the prosecuting authority.[136]

Neither this section nor any other regulation or provision in the INA provides a standard for competence in an immigration proceeding. There is no procedure in place for getting a psychological evaluation and/or a competency evaluation, and no funding available for lawyers who request an evaluation of their clients.[137]

Moreover, even the existence of documented evidence that a person has a mental disability, including one that demonstrably impairs participation in a legal proceeding without support, does not trigger additional review or safeguards. For example, a man who went through immigration court proceedings after he had been found incompetent to stand trial in a criminal court, and was sent to a state hospital for mental health treatment where he remained throughout his immigration hearings, provided “no evidence in the record” that he was “unable to comprehend the nature of the [removal] proceedings,” according to the Board of Immigration Appeals.[138]

The only other regulation that discusses a non-citizen’s competence and how to proceed if it is in doubt states that immigration judges may not accept a non-citizen’s statement that he or she is deportable if there is no lawyer or other representative appearing with the individual.[139] The IJ must “direct a hearing on the issues” when he or she decides not to accept a non-citizen’s admission that he or she is deportable, or that he or she is a non-citizen (an “alien” under US immigration law).[140] According to one attorney in Arizona, “Citizenship issues come up a lot; often ICE doesn’t have anything but the admission, and the admission isn’t reliable when the person is mentally ill.”[141]

The reliability of an admission may never be raised in immigration court without an attorney; however, the rule against accepting admissions of “alienage” does not apply where the individual has a lawyer. If a person with a mental disability told an immigration officer that he or she was not a US citizen, the judge could allow this statement into the record and determine that the individual was deportable so long as a lawyer was present in court—even if the lawyer was not able to communicate with the client, the statement was made outside the presence of an attorney, and in the absence of supporting documentation.

For example, Gustavo S. was a native English speaker with schizophrenia who gave inconsistent accounts of his place of birth to both his attorney and to ICE.[142] Medical records from Pike County jail, where Gustavo was held in ICE custody, state that he was “a historian of questionable reliability.”[143]He was charged with illegal entry solely on the basis of his statement that he born in Honduras, a statement made in detention, outside the presence of a lawyer, and which he intermittently contradicted.[144] The IJ excluded Gustavo’s statements as unreliable evidence in light of his mental disabilities. But after holding Gustavo for 19 months with only his unreliable admission as evidence of deportability, ICE ultimately produced a travel document from the General Consul of Honduras, to where Gustavo was subsequently deported. Gustavo’s attorney noted that this document was obtained at the request of the DHS using the information provided by the DHS.[145] While it may seem incredible that a US citizen would claim to be from another country, documented cases of unlawful deportations of citizens illustrate that mental disabilities can cause profound confusion on even this fundamental issue.[146]

Beyond the regulations outlined, IJs have little guidance on how to address mental disability issues in their courtrooms, although there appears to be increasing official recognition that guidance is necessary. For example, as of April 2010, the Immigration Judge Benchbook produced by the Executive Office for Immigration Review (EOIR) includes a mental health section that outlines many constraints that IJs face in recognizing disability in court and providing assistance to non-citizens with mental disabilities—including virtually no guidance or published case law to guide judges when the individual before them is not competent, or represents him or herself without a lawyer.[147]

Similarly, a 2009 article by immigration judge Mimi Tsankov that appeared in the EOIR’s legal publication listed several scenarios in which there is no guidance at all for IJs who face a non-citizen with doubtful competence, including, for example, where an individual asserts that he or she is competent to proceed despite evidence that the disability interferes with court participation.[148] Tsankov encouraged judges to develop evidence in the record that a non-citizen’s competency was in doubt, which a reviewing court can consider if the case is appealed.

However, in reality, few cases where the non-citizen is unrepresented and has a mental disability will reach a reviewing authority. The overwhelming majority of appeals made from immigration court are brought by non-citizens with attorneys.[149]

Moreover, while the new section of the Benchbook is a positive development—reflecting the concern of IJs that non-citizens with mental disabilities may be denied a fair hearing—it identifies few strategies that IJs can employ, and no meaningful safeguards or practices that they must consistently enforce to ensure a fair proceeding.

Disempowered Courts

We are all so overwhelmed. It is truly emotionally exhausting because we are dealing with the lives of individuals whose survival skills are already so compromised.
—Immigration Judge 1 (name withheld), interviewed February 11, 2010.

Immigration judges have no legal authority to appoint counsel, and immigration courts have no other safeguards in place to ensure that non-citizens with mental disabilities receive fair and impartial immigration hearings. It therefore falls to IJs to help unrepresented non-citizens, who often cannot afford a lawyer, understand court proceedings and procedures. This adds significantly to the already-heavy caseloads that judges face.

In 2009, for example, EOIR received 391,829 immigration cases for review and employed 232 immigration judges around the country to adjudicate these cases.[150] If distributed evenly among judges, this would require each judge to decide seven cases each day, working five days a week, full time, without any vacations.

IJs often view the challenge of coming up with ad hoc responses to their caseload of persons with mental disabilities as beyond their authority.[151] Moreover, they often lack the training, resources and time to provide sufficient assistance to individuals with mental disabilities. As a result, some have suggested creating a separate docket for cases where non-citizens have mental disabilities so that a judge with appropriate training in mental health and a smaller number of cases could provide more attention and assistance. A similar model exists for unaccompanied children in immigration proceedings, where courts provide separate and specialized hearings with judges who can take more time to explain the proceedings and their purpose to juveniles.[152]

The Immigration Judge Benchbook encourages immigration judges to reach out to pro bono attorneys to secure representation for non-citizens with mental disabilities, a practice already followed by many IJs where possible. However, given the shortage of pro bono resources and the inability to appoint counsel, IJs are not able to ensure that non-citizens with mental disabilities are represented in the absence of an office of appointed counsel. Where immigration judges attempt to find solutions in the absence of formal guidance, they may find their authority questioned.[153] Moreover, both attorneys for non-citizens and immigration judges say it is difficult to compel ICE attorneys to provide psychiatric evaluations and medical records.

One immigration judge told Human Rights Watch, “When a judge suspects that there is a mental disability, there are problems with enforcing cooperation from DHS because judges have no contempt authority or tools to use to make ICE cooperate in getting documents to get external corroboration that there is an illness.”[154]

 The National Lawyers Guild documented one case where the government attorney, who had repeatedly failed to produce the competency evaluation requested by the IJ, told the court, “there aren’t sufficient resources for us to do the evaluation.”[155] Attorney Benjamin Yerger, who has struggled to get a competency evaluation for his client Miguel B. despite a request from the IJ, recalls that “DHS’s position was that they were not going to do [the evaluation],” and at one point the ICE trial attorney “suggested that the judge could call the mental health counselor at the jail to order the evaluation.”[156]

In many situations, judges try to correct the imbalance and compensate for the lack of counsel by taking a more active role in proceedings, such as persuading [ICE attorneys] that a particular form of immigration relief is available in a given case.[157]

However, the DHS and Board of Immigration Appeals have both rebuked IJs for actively engaging in fact-finding and adding to the record in appellate decisions, resulting in the assumption that judges who assist an unrepresented person with diminished capacity will have their decisions overturned.[158]

In most cases that Human Rights Watch documented, immigration judges and attorneys said that ICE trial attorneys appealed decisions favorable to non-citizens with mental disabilities, and resisted efforts by judges and immigration attorneys to accommodate non-citizens with mental disabilities by providing mental health evaluations, sharing medical records with the court or attorneys, or agreeing to terminate cases where the person in proceedings cannot participate or protect his or her rights.

Nevertheless, the immigration attorneys and judges interviewed did believe that collaboration with ICE trial attorneys was possible and could produce equitable results, as in the case of an undocumented woman from Haiti with mental disabilities whom a criminal court had found incompetent. Even before an IJ ordered a status conference and “encourage[d] the parties to consider termination of proceedings without prejudice based on mental illness or administrative closure on humanitarian groups,” ICE trial attorneys agreed with the non-citizen’s attorney to support the request for withholding of removal.[159]

An IJ told Human Rights Watch that the immigration court was capable of working with ICE trial attorneys and immigration attorneys to terminate proceedings where necessary and to find community treatment and housing options for individuals when released.[160] The EOIR and DHS should, where appropriate, encourage efforts by ICE attorneys, judges, and immigration attorneys to ensure that individuals have the opportunity to present claims in court and obtain release.

Bypassing the Courtroom: Invisible Deportees

Anyone placed in deportation proceedings can sign a stipulated order of removal whereby the individual waives his or her rights to a hearing and agrees to have a final deportation order entered against them, thus bypassing any opportunity to raise claims or to get review from an immigration judge. [161] Between 2004 and 2008, immigration officers entered almost 100,000 stipulated removal orders. According to data obtained and analyzed by the Stanford Immigrants’ Rights Clinic, almost 95 percent of individuals who signed stipulated orders of removal since 1999 did not have a lawyer. [162]

Attorney Maunica Sthanki, who previously represented detainees in south Texas, told Human Rights Watch that there is enormous potential for coercion in situations where a detainee never has the opportunity to see a lawyer or an immigration judge:

What I worry about is what happens behind the scenes when an individual isn’t able to understand anything and a deportation officer comes and gets them to sign a piece of paper and that’s that. …ICE attorneys are under no obligation to make sure that the individual is competent to sign the order. The judge has to sign it but the individual isn’t in front of them, thereby passing over any opportunity for a real evaluation.[163]

Human rights law prohibits immigration officers from taking “undue advantage” of a person’s detention to either compel him or her to confess or to self-incriminate. [164] The possibility that detainees will sign stipulated orders of removal because they feel they cannot endure lengthy periods of detention may only be exacerbated for those with mental disabilities.

 One detainee told Human Rights Watch, “I’m fighting for asylum but I’m not going to get it. They think because I’m alone, I’ll just give up.” [165] Since stipulated orders of removal are intended to get detainees deported quickly, Human Rights Watch was not able to find any individuals who had signed stipulated orders of removal.

However, detainees in Florida and Texas reported ICE officers asking them to sign “some paper” on multiple occasions, even between court hearings. These individuals were not able to identify the document or its contents, demonstrating the risk that individuals with mental disabilities in detention without support may not understand what they are signing. One detainee illustrated his confusion about what deportation means when he said he would sign the deportation order so he could return to “the streets” to fight his case. [166]

The Right to a Lawyer

Aliens having representation, I think, could be the most positive thing for immigration courts that we can really see.
—Julie Myers-Wood, former Assistant Secretary of Immigration and Customs Enforcement.[167]

Having legal representation is of the utmost importance for any person facing deportation or requesting asylum. However, immigration law provides non-citizens only the “privilege” of being represented by a lawyer at their own expense, and not the right to legal representation provided by the government.[168]

For many people in the immigration system, this “privilege” is effectively meaningless given the cost of retaining legal counsel. As one immigration judge observed, “Mental health cases involve a great deal of time and energy. Respondents with mental illness are usually poor people who cannot afford the kind of advocates who are willing to fight for alternatives to removal.”[169]

 Moreover, there are few legal service organizations and private practitioners who can provide assistance to the hundreds of thousands of people in immigration proceedings—particularly in the remote locations where many non-citizens are detained. EOIR data for fiscal year 2009 shows that 61 percent of non-citizens in immigration proceedings did not have a lawyer.[170] Meanwhile, 84 percent of immigration detainees in 2006-2007 did not have a lawyer, according to the Vera Institute, a non-profit research and policy institute that also administers the Legal Orientation Program for EOIR.[171] Texas Appleseed, a non-profit legal services organization, found that 97 percent of immigration detainees in Texas were unrepresented in 2009.[172]

While immigration law does not afford a right to legal representation, judges, the government, lawyers and people in proceedings all recognize the importance of having a lawyer in immigration court. The US government, for example, is always represented by an ICE attorney in a deportation hearing. Several recent reports on the immigration court system all cite the need for appointed counsel as a core recommendation, and EOIR recently deemed the large number of individuals representing themselves as “of great concern…”[173]

While the government has an interest in providing counsel to improve courtroom efficiency and achieve just results, it is also clear that having a lawyer makes an enormous difference to an individual’s ability to obtain relief from deportation: studies show asylum seekers may be three to six times more likely to receive asylum with legal counsel than without.[174]

Table 1 – Non-citizens (non-detained and detained) in immigration court without attorneys[175]

Fiscal Year

Percent of Non-Citizens Appearing in Immigration Court without Counsel

2009

61 %

2008

60 %

2007

58 %

2006

65 %

2005

65 %

2004

55 %

2003

52 %

2002

55 %

2001

59 % (approximate)

2000

58 % (approximate)

Individuals with mental disabilities that Human Rights Watch spoke to doubted they could explain their claims without a lawyer.

“If I say something stupid or I lose my papers, I just have to be careful with the judge … I want help in my case. I need help,” said Angelo, a 45-year-old LPR from Mexico with an unspecified mental disability and long history of hospitalization.[176]

Sebastian, a 50-year-old non-citizen from Cuba currently taking multiple psychotropic medications, echoed the need for a lawyer. “For me court is difficult because I don’t understand what they are telling me. The judge asks me questions and I have to answer because I have no one to represent me. I told the judge that I can’t represent myself because of my nerves and I need an attorney,” he said.[177] One man from Vietnam, Minh B., whose speech was almost incomprehensible, recalled an immigration judge asking him if he needed extra help. “I said yes. Then he didn’t do anything,” said Minh B., who told Human Rights Watch he was receiving medication, although a FOIA request that Human Rights Watch submitted to ICE for medical records yielded no results.[178] Fernando C., a legal permanent resident from Mexico who has been in the US for 40 years, and was unable to remember his date of birth or why he was on medication, said that he had been to see the judge five times since arriving in Port Isabel:

I’ve been to see the judge 5 times since coming to Port Isabel. …I tell him I can’t represent myself and I need help. The judge just gives me extensions to see if I can get a lawyer … It’s hard because I have something wrong with my head, and I have trouble deciding what to tell him.[179]

Without a lawyer, many individuals with mental disabilities who have viable claims will not have the chance to present their cases and defend their rights in immigration court—even if they have reasonable grounds for a defense. A recent report from the City Bar Justice Center in New York interviewed 158 detained non-citizens without lawyers and suggested that 62 (30 percent) of those interviewed had meritorious claims for relief from deportation, mainly based on Convention against Torture-related claims.[180]

Having an attorney not only protects the rights of people facing deportation but also improves court efficiency and aids the court in reaching just and fair decisions where lawyers are able to present the legal claims and the facts. Attorney John Pollock, who monitored immigration proceedings in Boston and observed several cases of persons with mental disabilities, said, “Things went better when people had lawyers—lawyers got them evaluations, argued that the person was not competent to stand trial—arguments people otherwise could not make without judge’s assistance.”[181]

Attorneys play a vital role not only in crafting and investigating legal claims, examining and producing evidence, and rebutting the charges and evidence offered by the prosecution, but also in helping people to participate effectively in court. Attorney Megan Bremer said, “With diminished capacity you are not effectively heard. I see myself as a support through that process so that the voice doesn’t get lost.”[182]

While individuals without lawyers rely on the judge’s assistance, the government is always represented by counsel. The resulting inequity (where the state has legal counsel and the non-citizen does not) may have particularly severe consequences for non-citizens whose disabilities can be used against them in court.

For example, without an attorney to examine the medical evidence upon which the government is relying and to provide alternate readings of the medical history, individuals with mental disabilities are not able to explain medical history in court, and will have to contend with pejorative conclusions that trial attorneys and judges may draw from evidence of mental disability. According to attorney James Preis:

Without counsel filtering it, information about a person’s mental health could be used against the person’s interest, for example by being used stereotypically to support a claim of dangerousness.[183]

In some cases, ICE attorneys also recognize that non-citizens with mental disabilities need legal assistance. Several immigration attorneys recalled ICE attorneys asking them to represent detainees with mental disabilities in merits hearings, although these requests, which often came without prior notice or an opportunity to consult with the non-citizen or investigate the case, raised ethical concerns for the attorneys who suspected the requests were primarily motivated by a desire to simply facilitate the deportation process.[184]

Individuals interviewed for this report said that having a lawyer significantly helped their cases.

Viktor G., 47-year-old refugee from Bulgaria with schizophrenia who has been in the US for 25 years said, “Now that I have a lawyer, there is a big difference in court because she understands all the legal vocabulary…. Before when I saw the judge, I didn’t know that I have a right to stay but now the judge told me that if I won my case I would be able to stay here.”[185]

Mike C., a 35-year-old LPR from Haiti with bipolar disorder and limited cognitive functioning who was becoming depressed, said a lawyer prevented him from mistakenly signing whatever the immigration officers gave him so that he could get out of detention: “I was going to sign but my lawyer said don’t sign, fight your case … I had seen the judge 12 times before I got my lawyer. With a lawyer it is easy in court.”[186]

While it may be difficult to immediately ensure court-appointed attorneys for all persons in immigration proceedings, basic standards of fairness under human rights law require that every non-citizen with mental disabilities, whose disability prevents him or her from understanding the proceedings or meaningfully participating in them, receives counsel when they cannot afford an attorney themselves.[187]

In practice, it may be less efficient to first provide fair competency proceedings for non-citizens with mental disabilities and to separately appoint attorneys for only those whose disabilities raise competency concerns than it is to ensure the appointment of attorneys for all non-citizens known to have, or suspected of having, a mental disability when that person cannot afford a lawyer.

An Attorney May Not Be Enough

Attorney representation is crucial for people with mental disabilities to better navigate the complex immigration court system. But even this help may not be sufficient given the challenging, time consuming, and costly nature of presenting such a case.

For example, an attorney may need a psychiatrist to perform a mental health evaluation, and the help of family members to help fill in gaps in information—such as the client’s date and place of birth—which he or she would otherwise spend time investigating.

Rachel Wilson told Human Rights Watch that her client Arlex C., an asylum-seeker from Guatemala with brain trauma and cognitive disabilities, only managed to obtain asylum because his brother could guide him through the process and provide his history to the attorney; moreover, says Wilson, the judge was more inclined to credit the evidence of Arlex’ mental disability when presented with a psychiatric evaluation.[188]

Attorneys may also need more extensive guidelines than currently exist, given the significant ethical challenges that can arise when representing clients who cannot understand and evaluate options and tell the lawyer how to proceed.[189] Attorney Brigit Alvarez said, “I struggled on where to go for ethical guidelines. How can you agree to a legal defense for a client who doesn’t even know who you are?”[190] Most attorney bar guidelines that address the scenario of an attorney who cannot determine a client’s wishes are designed for criminal defense attorneys: none address the specific dilemma of a client facing the choice of extended, even indefinite, detention on the one hand, and deportation on the other.

Additional resources, such as coordinated care, social services, and support from local groups may also be needed to supplement the help that attorneys can provide in the face of inadequate post-detention planning by ICE As attorney Sunita Patel observed, “The person doesn’t just need an attorney; they need a plan for managing their care and also addressing any related issues.”[191]

A non-citizen can sometimes boost his or eligibility to remain in the United States and secure release from detention if he or she can provide ICE and the court with a release plan—a time consuming task that tends to fall the attorney, when one is present.[192] However, ICE should be ultimately responsible for such planning when it releases detainees, although it often fails to adequately perform this function.

A report by the Office of Inspector General for DHS found that ICE offices did not have appropriate release planning or necessary connections to mental health treatment centers.[193] As a result, many non-citizens are released directly to the streets without any notice being given to family or lawyers, a practice roundly criticized by many advocates who referred to it as “dumping.” Attorney Jordan Dollar—who says that ICE failed to notify him when it released his client with a mental disability from a rural Florida jail—says such lack of planning is endemic to the system:

Once their time is up, ICE just dumps them with no resources. It contradicts their argument that ICE should be able to hold these detainees for a long time … [ICE claims release planning] isn’t their issue but this is what happens when you detain mentally ill people—it becomes your issue.[194]

Inadequate post-release care means it often falls to local groups and attorneys to fill in the gaps. “The Deportation Officers rely on us to find solutions like programs that people can be released to,” one attorney in Arizona said.[195]

In cases that Human Rights Watch documented where a non-citizen was able to return home to family and community treatment, release occurred through coordinated care and advocacy from family, attorneys, social services and, in a few cases, ICE trial attorneys and IJs who identified cases where a person in proceedings had a mental disability and a claim for relief and used appropriate discretion to terminate a case and encourage coordination between all parties.

The range and complexity of services that individuals with mental disabilities require means it is insufficient to simply expand the pro bono services of immigration attorneys, most of whom are already over-burdened. In the criminal justice system, public defender offices often contain in-house and liaison professionals who work to place people in appropriate rehabilitation and treatment programs. In the immigration system, an office of appointed counsel similar to the public defender office could provide such services, and help devise a post-release plan that ICE and IJs could weigh when evaluating and preparing for a detainee’s release.

Release and Rehabilitation in California

In California immigration lawyers and advocates have been able to obtain release for their clients and enroll them in community mental health treatment.

Attorney Veronica Barba represented an LPR with schizoaffective disorder in a cancellation of removal case. At the final hearing, she recalls, the IJ continued the hearing so that Barba could find her client a place to stay where he would receive proper treatment. Says Barba, “Luckily, the LA Department of Mental Health approved him for enrollment in their Adult Full Service Partnership program. After release from immigration custody, he was admitted to a board and care facility in LA, where he is still voluntarily living.” [196]

In California, the Mental Health Services Act (Proposition 63) provides voluntary community-based mental health services to people with mental disabilities, irrespective of immigration status. According to James Preis, executive director of the Mental Health Advocacy Services, Inc., this “provides a model of intensive community services that wraps around the individual in the community and provides the individual with whatever it takes, including housing to aid in their recovery.” [197] Not only is this model of service delivery effective, says Preis, but by providing housing, it also responds to the concerns of immigration judges and immigration officials as to where a detainee can be released. The effectiveness of this program in Los Angeles County, notes psychiatric resident Kristen Ochoa, is due to the county Mental Health Court Community Reintegration Program, which links people to treatment and provides specialized programming on rehabilitation skills and reintegration into the community. [198]

Lawyers agreed that having mental health services available in the community was both persuasive to immigration authorities and immigration judges in arguing for release, and meant people were able to reintegrate into their communities and receive treatment. Survivors of Torture, International (SOTI) in San Diego provides psychological counseling and related services to individuals coming out of immigration detention. Says Kathi Anderson, Executive Director at SOTI, “It is a huge relief for attorneys to have case management services available when people are released. There hasn’t been a model to pull together the mental health and legal communities before.” [199]

When Safeguards Cannot Make Proceedings Fair

Appointing counsel and providing coordinated services would ensure that most non-citizens with mental disabilities have an opportunity to defend his or her rights, and obtain a just and appropriate result in immigration court.

However, occasionally a lawyer will not be enough to safeguard the rights of a non-citizen who has a mental disability that almost completely impairs ability to communicate with counsel or the court; express interests; make key decisions even with support; comprehend the meaning of deportation; or provide basic biographical information needed to determine the correct strategy to pursue. In such cases, where no accommodation will enable a person with mental disabilities to proceed effectively in court or ensure a just and accurate result, immigration judges need power to terminate proceedings.

Immigration courts and attorneys may never be able to determine the rights, interests and identity of a person with mental disabilities in proceedings. Nor may they be able to fulfill the basic purpose of immigration law—to allow those with a lawful basis to remain in the US and deport those without such a basis. As Attorney Elizabeth Sweet observed:

There are serious questions for an attorney when representing someone who suffers from a severe mental disability. Does the attorney know everything they should about their client and the family history? Is the attorney aware of all the legal claims that could be raised? In this type of situation, there is an argument that proceedings should be terminated.[200]

Even the assistance of a lawyer, family, case workers, ICE and DHS staff may not solve the problem that a person with significant mental disabilities cannot provide foundational information for his or her case. As one attorney told Human Rights Watch:

[Y]ou can’t say there is no basis for relief if they can’t participate in the proceeding. It is impossible to tell if there is a well-founded fear of returning to the country of origin; and until courts are able to make that determination with any certainty, it is impossible to say there is no relief.[201]

This situation is more than theoretical. Human Rights Watch terminated an interview with one detainee because the interviewer could not obtain informed consent, and two more where informed consent was in doubt by the end of the interview; DHS representatives at one facility determined that an individual whom Human Rights Watch planned to interview was not competent to consent to or participate in an interview. The individual whose interview Human Rights Watch terminated at the outset could not understand or answer any questions; she did not understand what a court was and could not say if she wanted to stay in the US. Human Rights Watch interviewed one man with mental disabilities facing deportation who did not know his date of birth.[202] Another did not know what a judge was.[203]

The immigration system already anticipates discretion in canceling a proceeding that would otherwise waste government resources without serving government interests. For example, immigration officers can withdraw a notice to appear if the “circumstances of the case have changed after the notice to appear was issued to such an extent that continuation is no longer in the best interest of the government.”[204] The DHS has also encouraged trial attorneys to work with ICE and other agencies to discourage issuing a Notice to Appear (NTA) (the charging document that commences immigration proceedings) where, for example, “sympathetic humanitarian factors” would instead recommend deferring prosecution.[205]

However, advocates whom Human Rights Watch interviewed said that they had not seen ICE—which retains initial responsibility for charging or not charging a non-citizen—exercise much prosecutorial discretion. They recommended that ICE incorporate an individual’s mental disability into its prosecutorial decisions, particularly when it is severe and ongoing. One immigration judge told Human Rights Watch:

There should be a screening process implemented to determine whether NTA’s should be filed or if there are alternatives to removal proceedings. Systems can be put in place to protect the interests of the public and the mentally ill. We need some judicial process that is not adversarial; I don’t trust ICE/DHS to determine what is best for the mentally ill.[206]

Existing regulations and case law imply that the presence of counsel in immigration court outweighs or implicitly cures any unfairness, even if a non-citizen does not understand the proceedings against him or her.[207] “Trying to fix the regulations misses the point; these people should not be in removal proceedings in the first place,” said one immigrations judge.[208]

In contrast, in the criminal justice system it is not enough to have a lawyer: the state cannot prosecute and convict a criminal defendant who is mentally incompetent and therefore lacks “sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding,” a “rational as well as factual understanding of the proceedings against him,” and cannot “assist in preparing his defense.”[209]

Immigration cases do not have a similar standard. Once the NTA has been filed, immigration judges have no discretion or authority to end proceedings if they believe it is impossible to assure their accuracy and fairness, nor have they power to decide if a case belongs in a courtroom at all. Judges are only explicitly permitted to terminate proceedings to allow a non-citizen to pursue a naturalization application, or if evidence shows the government has not proved removability.[210] Immigration judges are permitted to administratively close a case—a temporary measure—but only with the agreement of both parties.[211]

However, in practice, IJs who do try to terminate cases often find their authority questioned and their position without support from the EOIR or reviewing authority (the Board of Immigration Appeals). One immigration judge explained, “We can terminate a case but DHS can appeal; there is nothing published on the right to terminate a case in this situation.”[212]

Even when trial attorneys agree to terminate proceedings or find equitable solutions, the message from DHS is often to recalendar the cases and proceed against the individual.[213] This leaves immigration judges in a bind:

…I feel so impotent and so powerless. I sit there thinking, is anybody looking at this the same way I am? Why is this person in my courtroom? Why have I been asked to do THIS?[214]

The new section on mental disability in the Immigration Judge Benchbook proposes that IJs might terminate proceedings where the non-citizen’s mental disability makes participation in immigration court impossible. This section also admitted that the Board of Immigration Appeals has never upheld an immigration judge’s decision to terminate a proceeding on the basis that the non-citizen’s mental health condition made the proceeding unfair. However, the Benchbook states that “it remains an open question under the Fifth Amendment Due Process Clause whether proceedings could be terminated to assure fundamental fairness where an alien is severely or profoundly incompetent, and no person can be identified to protect his or her interests other than a DHS custodian.”[215]

Without authority to terminate proceedings and corresponding procedures to determine that a person cannot proceed in immigration court, IJs may be powerless to ensure a fair hearing for a person with significant mental disabilities who cannot participate in hearings or understand the content and consequences of statements in court. Without a mechanism for resolving these cases, the immigration system effectively renounces these cases, allowing individuals with mental disabilities to languish in detention until the system gets it right.

 

[117]International Covenant on Civil and Political Rights (ICCPR), adopted December 16, 1966, G.A. Res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, entered into force March 23, 1976, ratified by the United States on June 8, 1992, http://www.ohchr.org/english/countries/ratification/4.htm (accessed June 23, 2010), article 14. According to the Human Rights Committee, the requirement of a competent, independent and impartial tribunal “is an absolute right that is not subject to any exception.” Human Rights Committee, General Comment 32, Right to equality before courts and tribunals and to a fair trial, U.N. Doc CCPR/C/GC/32 (2007), http://daccess-dds-ny.un.org/doc/UNDOC/GEN/G07/437/71/PDF/G0743771.pdf?OpenElement (accessed June 23, 2010), para. 19.

[118]ICCPR, art. 13.

[119]UN Human Rights Committee, “The Position of Aliens Under the Covenant,” General Comment No.15, U.N. Doc. A/41/40 (1986), http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/bc561aa81bc5d86ec12563ed004aaa1b?Opendocument (accessed June 23, 2010), paras. 9 and 10.

[120]American Convention on Human Rights (“Pact of San José, Costa Rica”), adopted November 22, 1969, O.A.S. Treaty Series No. 36, 1144 U.N.T.S. 123, entered into force July 18, 1978, reprinted in Basic Documents Pertaining to Human Rights in the Inter-American System, OEA/Ser.L.V/II.82 doc.6 rev.1 at 25 (1992), http://www.oas.org/juridico/english/Sigs/b-32.html (accessed June 23, 2010).

[121]Ibid., art. 8(1).

[122]Inter American Commission on Human Rights, Report No. 49/99 Case 11.610, Loren Laroye Riebe Star, Jorge Alberto Barón Guttlein and Rodolfo Izal Elorz v. Mexico, April 13, 1999, Section 70-1.

[123]International Covenant on Civil and Political Rights (ICCPR), adopted December 16, 1966, G.A. Res. 2200A (XXI), 21 U.N.

GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, entered into force March 23, 1976, ratified by the United States on June 8, 1992, art. 13.

[124]Body of Principles for the Protection of Persons Under Any Form of Detention and Imprisonment, Principle 17(2), G.A. Res. 43/173, Annex, U.N. Doc. A/Res/43/173 (Dec. 9, 1988).

[125]International Convention on the Protection and Promotion of the Rights and Dignity of Persons with Disabilities (CRPD), adopted December 13, 2006, G.A. Res.61/106, U.N. Doc. A/61/49 (2006), entered into force May 3, 2008, art. 13.; Ibid., art. 12.

[126]Ng Fung Ho v. White, 259 US 276, 284-85 (1922).

[127]Woodby v. INS, 385 U.S. 276, 285 (1966) (“This Court has not closed its eyes to the drastic deprivations that may follow when a resident of this country is compelled by our Government to forsake all the bonds formed here and go to a foreign land where he often has no contemporary identification. … There must be ‘clear, unequivocal, and convincing’ proof before a person can be deported.”).

[128]US Constitution, Sixth Amendment. Even before the right to counsel existed in criminal court, US law recognized that “No trial can be fair that leaves the defense to a man who is insane, unaided by counsel, and who by reason of his mental conditions stands helpless and alone before the court.” Massey v. Moore, 348 U.S. 105, 108 (1954).

[129]Dusky v. US, 362 US 402 (1960); Drope v. Missouri, 420 US 162, 171 (1975).

[130]Under US law, courts must look to the private interests at stake, the government’s interests, and the risk of an erroneous decision in the absence of counsel to determine if counsel is required in the non-criminal setting. Mathews v. Eldridge, 424 US 319, 33 (1976); Lassiter v. Department of Social Services., 452 US 18, 26-27 (1981).

[131]8 U.S.C. Section 1103(g)(2); INA Section 240(b)(3); see also Brue v. Gonzales, 464 F.3d 1227, 1233 (10th Cir. 2006) (noting the Attorney General’s authority to prescribe safeguards to protect the rights and privileges of non-citizens with mental disabilities in deportation proceedings).

[132]In June 29, 2009, five immigrants’ advocacy organizations submitted a petition for rulemaking to the Attorney General’s office, requesting the Attorney General promulgate regulations for the appointment of counsel in immigration proceedings; however, as of July 7, 2010, the Department of Justice has not developed new regulations authorizing appointment of counsel in immigration court. Catholic Legal Immigration Network, Inc. et al.,”Petition for Rulemaking To Promulgate Regulations Governing Appointment of Counsel for Immigrants in removal Proceedings,” submitted to the Department of Justice, June 29, 2009, http://www.bc.edu/centers/humanrights/meta-elements/pdf/Petition_for_Rulemaking_for_Appointed_Counsel.pdf (accessed May 17, 2010).

[133]8 CFR Section 1240.10(a)(4).

[134]8 C.F.R. Section 1240.4.

[135]Ibid.

[136]Universal Declaration of Human Rights (UDHR), adopted December 10, 1948, G.A. Res. 217A(III), U.N. Doc. A/810 at 71 (1948), art. 10.

[137]Although under current regulations, a finding that a person was not competent to proceed would not activate any legal protections, lawyers and judges may still want a psychiatric evaluation either to demonstrate whether the individual can credibly testify or to establish a person’s claims where the mental disability is relevant to a person’s legal argument, for example, if the individual is claiming persecution or a right to humanitarian asylum based on his or her mental disability.

[138]Mohamed v. Gonzales, 477 F.3d 522, 525 (8th Cir. 2007) (upholding and quoting from the Board of Immigration Affairs deportation decision).

[139]8 C.F.R. Section 1240.10(c).

[140]Ibid. In response to a FOIA request from Human Rights Watch for the number of cases in which an immigration judge has refused to accept an admission based on the respondent’s incompetence, EOIR stated that its “computer system does not maintain this information.” EOIR response to Human Rights Watch Freedom of Information Request, March 8, 2010 (see Appendix).

[141]Human Rights Watch interview with Arizona immigration attorney, January 6, 2010.

[142]Respondent’s Motion to Terminate Removal Proceedings, August 13, 2008 (on file with Human Rights Watch); Human Rights Watch telephone interview with Megan Bremer, Pennsylvania Immigration Resource Center, April 2, 2010; DHS Motion to Temporarily Table Respondent’s Motion to Terminate Proceedings, August 28, 2008 (“A review of the respondent’s New York criminal history information indicates that the respondent has provided authorities with various places of birth, including Honduras and ‘Howard Island.’”).

[143]Medical Summary of federal prisoner/Alien in Transit, From Marlene Van Houten, DRA to EOIR York, PA, May 8, 2007 (on file with Human Rights Watch).

[144]Human Rights Watch telephone interview with Megan Bremer, April 2, 2010.

[145]Ibid.

[146]For example, Mark Lyttle, a US citizen with bipolar disorder, was deported to Mexico after he told ICE agents while in detention that he was born in Mexico; he also said that he was a US citizen but ICE agents failed to investigate his citizenship claims. Kristin Collins, “N.C. native wrongly deported to Mexico,” Charlotte Observer, August 30, 2009, http://www.charlotteobserver.com/2009/08/30/917007/nc-native-wrongly-deported-to.html (accessed April 11, 2010).

[147]IJ Benchbook. See also Mimi E. Tsankov, “Incompetent Respondents in Removal proceedings,” Immigration Law Advisor, vol. 3 no.4 (April 2009); Human Rights Watch interviews with Immigration Judge 2 (name withheld) December 4, 2009.

[148]Ibid pp.17-18.

[149]EOIR Statistical Year Book FY2009, p.60.

[150]EOIR response to Human Rights Watch Freedom of Information Request, March 8, 2010 (see Appendix).

[151]Human Rights Watch telephone interview with Immigration Judge 1 (name withheld), February 11, 2010; Human Rights Watch telephone interview with Immigration Judge 2 (name withheld), December 4, 2009; Human Rights Watch telephone interview with Immigration Judge 3 (name withheld), December 4, 2009.

[152]US Department of Justice, Executive Office for Immigration Review, Memorandum, “Operating Policies and Procedures Memorandum 07-01: Guidelines for Immigration Court Cases Involving Unaccompanied Alien Children,” May 22, 2007, http://www.justice.gov/eoir/efoia/ocij/oppm07/07-01.pdf (accessed May 14, 2010); Human Rights Watch interview with Immigration Judge 1 (name withheld), February 11, 2010; Human Rights Watch interview with Immigration Judge 2 (name withheld), December 4, 2009; Human Rights Watch interview with Immigration Judge 3 (name withheld), December 4, 2009.

[153] IJ Benchbook, Part III Sample Orders. The IJ Benchbook attaches one order for a competency evaluation and a second, follow-up order for requesting DHS to explain its failure to produce the competency evaluation to the immigration court, which is illustrative of the difficulties immigration judges face in forcing compliance from DHS.

[154]Human Rights Watch telephone interview with Immigration Judge 3 (name withheld), December 4, 2009.

[155]Human Rights Watch telephone interview with John Pollock, December 7, 2009, discussing a case witnessed in Boston immigration court in October 2003.

[156]Human Rights Watch telephone interview with Benjamin Yerger, Pennsylvania, March 19, 2010.

[157]Human Rights Watch telephone interview with Troy Elder, Miami, FL, December 2, 2009.

[158]Human Rights Watch telephone interview with Megan Bremer, April 2, 2010.

[159]In the Matter of (name withheld), Decision on a Motion Joint Status Conference, January 28, 2010 (on file with Human Rights Watch); Human Rights Watch interview with Tal Winer, Florida Immigrant Advocacy Center, Miami, FL, March 2, 2010.

[160]Human Rights Watch interview with Immigration Judge 1 (pseudonym), February 11, 2010.

[161]INA Section 240.

[162]Jayashri Srikantiah, Stanford Immigrants’ Rights Clinic, and Karen Tumlin, National Immigration Law Center, “Backgrounder: Stipulated Removal”, November 2008, http://www.law.stanford.edu/program/clinics/immigrantsrights/pressrelease/Stipulated_removal_backgrounder.pdf (accessed July 7, 2010).

[163]Human Rights Watch telephone interview with Maunica Sthanki, Boston, MA, January 29, 2010.

[164]Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment (Body of Principles), adopted December 9, 1988, G.A. Res. 43/173, annex, 43 U.N. GAOR Supp. (No. 49) at 298, U.N. Doc. A/43/49 (1988), Principle 21.1.

[165]Human Rights Watch interview with Edgar S. (pseudonym), Port Isabel Detention Center, Los Fresnos, TX, January 19, 2010.

[166]Human Rights Watch interview with Leonardo D. (pseudonym), Krome Service Processing Center, Miami, FL, March 1, 2010.

[167]Jennifer Ludden, “Immigration Crackdown Overwhelms Judges,” National Public Radio, February 9, 2009, transcript, http://www.npr.org/templates/transcript/transcript.php?storyId=100420476 (accessed July 7, 2010).

[168]8 U.S.C. Section 1229a(b)(4)(A) (2006 & Supp. 2009); see also 8 USC. Section 1362 (2006).

[169]Human Rights Watch interview with Immigration Judge 1 (name withheld), February 11, 2010.

[170]EOIR Statistical Year Book FY2009, p. G1.

[171]Vera Institute for Justice, Improving Efficiency and Promoting Justice in the Immigration System: Lessons from the Legal Orientation Program, May 2008, p.1http://www.vera.org/download?file=1780/LOP percent2BEvaluation_May2008_final.pdf.

[172]Texas Appleseed, Justice for Immigration’s Hidden Population: Protecting the Rights of Persons with Mental Disabilities in the Immigration Court and Detention System, March 2010, p.13.

[173]EOIR Statistical Year Book, G1; American Bar Association, Reforming the Immigration System: Proposals to promote Independence, Fairness, Efficiency, and professionalism in the Adjudication of Removal Cases, February 2010; The Constitution Project, Recommendations for Reforming our Immigration detention System and Promoting Access to Counsel in Immigration Proceedings, December 2009; Texas Appleseed, Justice for Immigration’s Hidden Population: Protecting the Rights of Persons with Mental Disabilities in the Immigration Court and detention System, March 2010.

[174]Jaya Ramji-Nogales, Andrew I. Schoenholtz, and Philip G. Schrag, “Refugee Roulette: Disparities in Asylum Adjudication,” Stanford Law Review, vol. 60, November 2007, p. 340. See also, Human Rights First, “In Liberty’s Shadow: US Detention of Asylum Seekers in the Era of Homeland Security,” 2004, p.39,

http://www.humanrightsfirst.org/about_us/events/Chasing_Freedom/asylum_report.htm (accessed April 15, 2010) (citing Georgetown University Institute for the Study of International Migration Analysis of US government statistics showing that “asylum seekers are up to six times more likely to be granted asylum when they are represented.”).

[175]Source: US Department of Justice, Executive Office for Immigration Review, “Fiscal Year 2009 Statistical Year Book,” Office of Planning, Analysis, and Technology, March 2010,p.5; US Department of Justice, Executive Office for Immigration Review, “Fiscal Year 2008 Statistical Year Book,” Office of Planning, Analysis, and Technology, March 2009, p. 5; US Department of Justice, Executive Office for Immigration Review, “Fiscal Year 2007 Statistical Year Book,” Office of Planning, Analysis, and Technology, April 2008, p. 5; US Department of Justice, Executive Office for Immigration Review, “Fiscal Year 2006 Statistical Year Book,” Office of Planning, Analysis, and Technology, February 2007, p. 6; US Department of Justice, Executive Office for Immigration Review, “Fiscal Year 2005 Statistical Year Book,” Office of Planning, Analysis, and Technology, February 2006, p. 6; US Department of Justice, Executive Office for Immigration Review, “Fiscal Year 2004 Statistical Year Book,” Office of Planning and Analysis, March 2005, p. 7; US Department of Justice, Executive Office for Immigration Review, “Fiscal Year 2003 Statistical Year Book,” Office of Planning and Analysis, April 2004, p. 7; US Department of Justice, Executive Office for Immigration Review, “Fiscal Year 2002 Statistical Year Book,” Office of Planning and Analysis, April 2003, p. 7; US Department of Justice, Executive Office for Immigration Review, “Fiscal Year 2001 Statistical Year Book,” Office of Planning and Analysis, March 2002, p. 24 (fiscal years 2001 and 2000).

[176]Human Rights Watch interview with Angelo R. (pseudonym), Port Isabel Detention Center, Los Fresnos, TX, January 19, 2010.

[177]Human Rights Watch interview with Sebastian F. (pseudonym), Krome SPC, Miami, FL, March 1, 2010.

[178]Human Rights Watch interview with Minh B. (pseudonym), Eloy Detention Center, Eloy, AZ, January 5, 2010.

[179]Human Rights Watch interview with Fernando C. (pseudonym), Port Isabel Detention Center, Los Fresnos, TX, January 19, 2010.

[180]City Bar Justice Center, An Innovative Pro Bono Response to the Lack of Counsel for Indigent Immigrant Detainees, November 2009, p.11.

[181]Human Rights Watch telephone interview with John Pollock, December 7, 2009.

[182]Human Rights Watch telephone interview with Megan Bremer, April 2, 2010.

[183]Human Rights Watch interview with James Preis, Mental Health Services of Los Angeles, Los Angeles, CA, February 12, 2010, and email correspondence, April 13, 2010. In this context, dangerousness may be used as a reason to deport, or at least as a factor that weighs against other sympathetic factors and may be considered when immigration judges decide if an individual is entitled discretionary relief.

[184]Human Rights Watch conversations with immigration attorneys in Arizona and Texas.

[185]Human Rights Watch interview with Viktor G. (pseudonym), CCA Otay Mesa, California, February 10, 2010.

[186]Human Rights Watch interview with Mike C. (pseudonym), Glades County Jail, Florida, March 3, 2010.

[187]ICCPR, art. 13; Convention on the Rights of Persons with Disabilities, art.12, section 3.

[188]Human Rights Watch interview with Rachel Wilson, Tucson, AZ, January 8, 2010.

[189]During research for this report, some advocates suggested to Human Rights Watch that the immigration court should be able to appoint a guardian ad litem who could help the attorney make decisions on behalf of a client with mental disabilities.

[190]Human Rights Watch interview with Brigit Alvarez, Los Angeles, CA, February 12, 2010.

[191]Human Rights Watch telephone interview with Sunita Patel, Center for Constitutional Rights, New York, NY, December 21, 2009.

[192]A release plan, while not legally required, supplies the place to which an individual will be released (for example, home to their family, to a residential treatment facility, etc.) and may be provided to assure the court and ICE that a person will still participate in immigration proceedings outside of detention, if necessary.

[193]Office of Inspector General, Department of Homeland Security, ICE’s Compliance with Detention Limits for Aliens With a Final Order of Removal From the United States, February 2007, (“OIG Final Order of Removal Report”), p.34.

[194]Human Rights Watch telephone interview with Jordan Dollar, Catholic Legal Services, Miami, FL, March 16, 2010.

[195]Human Rights Watch interview with Arizona attorney, January 6, 2010.

[196]Human Rights Watch email correspondence with Veronica Barba, ABA Immigration Project, April 15, 2010.

[197]Human Rights Watch interview with James Preis, Mental Health Services of Los Angeles, Los Angeles, CA, February 12, 2010, and email correspondence, April 13, 2010.

[198]Human Rights Watch email correspondence with Kristen Ochoa, Los Angeles, CA, April 15, 2010.

[199]Human Rights Watch interview with Kathi Anderson, Survivors of Torture International, San Diego, CA, February 8, 2010.

[200]Human Rights Watch interview with Elizabeth Sweet, American Bar Association Immigration Project, San Diego, CA, February 9, 2010.

[201]Human Rights Watch interview with immigration attorney in Arizona, January 6, 2010.

[202]Human Rights Watch interview with Fernando C. (pseudonym), Port Isabel Detention Center, Los Fresnos, TX, January 19, 2010.

[203]Human Rights Watch interview with Miguel B. (pseudonym), York County Jail, York, PA, February 17, 2010.

[204]8 CFR Section 239(7).

[205]William J. Howard, Principal Legal Advisor, Department of Homeland Security, Memorandum to All OPLA Chief Counsel, “Prosecutorial Discretion,” October 24, 2005.

[206]Human Rights Watch interview with Immigration Judge 1 (name withheld), February 11, 2010.

[207]Mimi E. Tsankov, “Incompetent Respondents in Removal proceedings,” Immigration Law Advisor, vol. 3 no.4 (April 2009).

[208]Human Rights Watch telephone interview with Immigration Judge 1 (name withheld), February 11, 2010.

[209]Dusky v. US, 362 US 402 (1960); Drope v. Missouri, 420 US 162, 171 (1975).

[210]8 C.F.R. Section 1239.2(f); EOIR 2009 Statistical Year Book, p.7.

[211]See Matter of Gutierrez, 21 I&N Dec. 479 (BIA 1996); Matter of Lopez-Barrios, 20 I&N Dec. 203 (BIA 1990); and Matter of Munoz-Santos, 20 I&N Dec. 205 (BIA 1990). See also Diaz-Covarrubias v. Mukasey, 551 F.3d 1114 (9th Cir. 2009).

[212]Human Rights Watch telephone interview with Immigration Judge 2 (name withheld), December 4, 2009.

[213]Human Rights Watch telephone interview with Immigration Judge 1 (name withheld), February 11, 2010.

[214]Human Rights Watch telephone interview with Immigration Judge 1 (name withheld), February 11, 2010.

[215]IJ Benchbook, “Mental Health Issues,” April 2010.