Addressing All Heads of the Hydra: Reframing Safeguards for Mentally Impaired Detainees in Immigration Removal...

This article concerns the constitutional rights of detained, mentally impaired non-citizens in defending against deportation. Due process requires that such detainees receive a full and fair hearing. However, until recently, they were not provided an attorney to assist them in navigating our extremely complicated immigration system. Mentally impaired detainees were expected to proceed alone in proving the elements of their claims against skilled government attorneys--a daunting task even for those unencumbered by a mental disorder. On December 31, 2013, the Department of Justice ("DOJ") released guidelines detailing new procedures for how immigration courts should handle these cases, including the provision of counsel upon a finding of mental incompetence. The guidelines were issued as a direct response to Franco-Gonzales v. Holder, a class action lawsuit brought by the American Civil Liberties Union in federal district court in California seeking appointed counsel for detained, unrepresented, mentally impaired non-citizens. The guidelines created a three-stage process for assessing competency. Only at the end of this process--and after an individual is declared incompetent--is counsel appointed. This article argues that the DOJ guidelines fall far short of Franco's promise of due process for this particularly vulnerable population. It proposes an alternative model wherein counsel is appointed the moment the court is presented with "indicia" of incompetence, rather than after an adjudication of incompetence. "Indicia" should create a presumption of incompetency that can be rebutted only after a forensic evaluation is conducted and the court holds a robust hearing into the matter. This article reveals, through empirical evidence, the critical role that counsel plays in the investigation of a respondent's ability to participate in the proceedings, and how an attorney is often the only party positioned to marshal all the evidence relevant to the question of competency. Additionally, where a lack of competence is found, the court should appoint a guardian ad litem ("GAL") to assist the attorney in the individual's defense. Counsel and the GAL should work in tandem to achieve the outcome most favorable to the individual, which could be termination, the pursuit of relief, or even deportation in some instances. The expanded use of existing "Deferred Action" categories offers an additional remedy when none of the above proposed options are adequate. The article concludes that the DOJ guidance must be amended in accordance with these recommendations. This proposal best ensures vigorous and informed examination of an individual's competency, while safeguarding the individual against the inherent limits of immigration courts, conflicts of interest, and undue harm.