It is already hard enough for an immigration
lawyer to represent a foreign national client in an immigration proceeding,
given the language and other cultural barriers, along with the fact that
immigration law can be extremely complex and unforgiving. On top of this, an
immigration lawyer who represents a foreign national client with mental
competency issues faces even greater challenges, including ethical conundrums.
To what extent can a lawyer represent a
client who may not even have the capacity to consent or to comprehend the fact
that there is a lawyer who can assist him or her? This client may be discovered
in immigration custody while in the middle of complex removal proceedings. The
lawyer may also encounter a client with mental competency issues who may need
to file for immigration benefits such as adjustment of status or
naturalization. This issue has gained
even more importance in light of the mandatory appointment of counsel for
unrepresented respondents in immigration custody who have mental disorders.
While clients with diminished mental capacity
also include children, this blog focuses on the challenges that lawyers face in
representing clients with mental disorders. The first breakthrough with respect
to the development of safeguards came about in Matter
of M-A-M-, 25 I&N Dec. 474 (BIA 2011), where the Board of Immigration Appeals held
that for an alien to be competent to participate in an immigration proceeding,
he or she must have a rational and factual understanding of the nature and
object of the proceeding and a reasonable opportunity to exercise the core
rights and privileges afforded by the law. The decisive factors are whether the
respondent understands the nature and object of the proceedings, can consult with
the attorney or representative, and has a reasonable opportunity to examine adverse
evidence, present favorable evidence and cross examine government witnesses. Further guidance relating to Matter of M-A-M- can be found in the
excellent practice
advisory of the Litigation Action Center.
Subsequently, in Franco-Gonzales
v. Holder, No. 10-02211 (C.D. Cal Apr. 23, 2013), a class action law suit, the court ordered
that non-citizen detainees with severe mental disabilities in Arizona,
California and Washington be provided qualified legal representatives at
government expense in removal and bond proceedings. The court also ordered bond
redetermination hearings for those detained more than 180 days. The EOIR on
December 13, 2013 issued guidelines
to provide enhanced procedural protection to unrepresented detained respondents
with mental disorders. These guidelines are more robust than the principles set
forth in Matter of M-AM-, and require
an assessment of eight competencies in order to determine whether the
respondent is competent to represent him- or herself:
A rational
and factual understanding of:
- The nature and object of the proceeding;
- The privilege of representation, including but not
limited to, the ability to consult with a representative if one is
present;
- The right to present, examine, and object to evidence;
- The right to cross-examine witnesses; and
- The right to appeal
A
reasonable ability to:
- Make decisions about asserting and waiving rights;
- Respond to the allegations and charges in the
proceedings; and
- Present information and respond to questions relevant
to eligibility for relief.
If a detained respondent is unable
to perform any one of the above functions, then he or she is unable to
represent him-or herself. An Immigration Judge is required to detect facts
suggesting incompetency, conduct a judicial inquiry, and follow up with a
competency review. If the Immigration Judge determines that a respondent is not
competent to represent him-or herself, the EOIR may provide a qualified
representative who is found to be incompetent to represent him-or herself. While
this elaborate process to determine whether a respondent is competent or not is
a good first step, one wonders why this process is conducted on behalf of a
respondent without the presence of a lawyer. This writer believes that the respondent
should have a legal representative earlier in the process, when his or her
competency is being evaluated.
Even when a lawyer is appointed by
the court to represent a respondent who is not found to be competent, there is
a potential for conflict of interest as the appointment will generally only
last while the client is detained. If the client is bonded out, the lawyer will
no longer be paid by EOIR after the client is released. This creates an ethical
dilemma. If the client desperately needs the assistance of a lawyer who is paid
by the government, he or she can only be represented by counsel at government
expense while in immigration custody. Would it be in the client’s best interest to
be released but not to have appointment counsel, or rather to have appointed
counsel while in custody? This might be easier to resolve if the client could
make decisions and provide informed consent, but clients with severe mental
disabilities might be unable to make informed decisons.
On the other hand, there are no safeguards
relating to non-citizens applying for immigration benefits outside a custodial
setting. Practitioners representing clients with mental disorders should
advocate for the application of the safeguards enunciated in Matter of M-A-M even outside a removal
hearing, which include:
-
Legal
representation
-
Identification
of close friends or family members who can assist
-
Docketing/managing
case to give time for legal representation or medical treatment
-
Participation
of a guardian in the proceedings
-
Continuance
or administrative closure
-
Closing
hearing to the public
-
Waiving
respondent’s appearance
-
Assistance
with development of record
-
Reserving
appeal rights
Lawyers must also consult ABA Model Rule
1.14, and its analog in a state bar ethics rule, which relates to representing a
client with diminished mental capacity. Rule 1.14 instructs a lawyer to
maintain a normal lawyer-client relationship as far as possible. Thus, to the
extent that an impaired client is capable of making competent decisions, the
lawyer must follow them. A lawyer may seek help from a family member or others
in communicating with a client with a mental disorder, while at the same time
taking into consideration whether the presence of others would affect the
attorney-client privilege.
This writer has represented clients for
benefits applications, and has found it extremely useful to communicate with
the client through trusted family members. A client with a mental disorder may
have moments of lucidity, and it is important for the lawyer to ascertain how
best to work with such a client through a professional diagnostician. At the
benefits interview, counsel must insist that the USCIS generously provide accommodations
for a client, including having the presence of a family member during the
interview and to only ask the most basic questions, while relying on documentary
evidence to determine eligibility for the immigration benefit. Note that 8 CFR
103.2(a)(2) allows a legal guardian to sign a form for a person with mental
disabilities.
With respect to applying for naturalization,
the law has developed favorably towards persons with disabilities. Applicants
who are physically or developmentally disabled, or have mental impairment are
exempt from the English as well as civics/history test. Applicants may also
seek a waiver of the oath requirement if they are unable to comprehend it.
Designated representatives can complete the Form N-400, such as a guardian,
surrogate, US citizen spouse, parent, son, daughter or sibling. It is potentially
possible for a comatose applicant on a respirator to be able to apply for and obtain
US citizenship, and sponsor a qualifying spouse through an I-130 petition, who
in turn files his or her own adjustment application for lawful permanent
residence.
Rule 1.14 also allows a lawyer to take
reasonably protective action when a client is at risk of harm by either
consulting with individuals or entities, and in appropriate cases, seek the
appointment of a guardian or guardian ad litem. The lawyer may be impliedly authorized
to reveal information protected by rule 1.6, but
only to the extent reasonably necessary to protect the client's interests. While resorting to
the appointment of a guardian may appear to be an obvious step on behalf of one
who is unable to comprehend the nature of the proceedings or consent to the representation,
it may also be a traumatic and expensive process, and may undermine the
autonomy that the client is required to have under Rule 1.14. The guiding principles,
as much as possible, are that the client determines the ends while the lawyer
has control over the means. According to
Comment 7 to Model rule 1.14, “In many circumstances, however, appointment of a
legal representative may be more expensive or traumatic for the client than
circumstances in fact require. Evaluation of such circumstances is a matter
entrusted to the professional judgment of the lawyer. In considering
alternatives, however, the lawyer should be aware of any law that requires the
lawyer to advocate the least restrictive action on behalf of the client.”
To the extent that a client with mental
disorders can provide informed consent, the lawyer’s role is made that much
easier. The challenge lies with a client who is unable to consent at all. Under
these circumstances, should the lawyer still play an activist role and represent
the client? Is counsel then always required to seek the appointment of a
guardian? Or are there less restrictive alternatives such as seeking the
assistance of family members in determining the client’s best interests. If
counsel has been appointed by an immigration judge, how relevant is the client’s
incapacity to consent if the lawyer believes it is still in the client’s best
interests to have a legal representative? 8 CFR 1292.1(a)(1) &(a)(4) state,
without reference to consent, that attorneys are entitled to appear in removal
hearings. An attorney can play a crucial role on behalf of a client who is
unable to consent. Indeed, if the goal
is for the respondent to remain in the United States (but that may only be
assumed if the client is unable to comprehend the nature of the immigration proceeding),
the very fact that a respondent may have a mental disorder may prompt an
immigration judge to consider granting asylum if the respondent will be removed
to a country that is unable or unwilling to protect its citizens with mental disorders.
An immigration judge may also grant cancellation of removal pursuant to INA
section 240A(b) if the documentation is able to demonstrate eligibility, such
as 10 years of physical presence, good moral character and the qualifying
relatives, who may be US citizens or permanent residents, are able to
demonstrate exceptional and extremely unusual hardship. There may be times, especially with clients
who cannot seek relief, to advocate for administrative closure of the case or
even termination. Again, when the client is unable to consent, would
administrative closure or termination be in the client’s best interest over
being removed from the United States and being with close family members
abroad?
There is much work that needs to be done to
develop standards and provide clearer guidance. In the meantime, the lawyer must grapple with
emerging standards from the courts and EOIR, as well as interpret Rule 1.14
within the immigration context, although not all states have adopted this rule.
While representing non-citizen clients
with mental competency issues can pose additional challenges, obtaining a
successful outcome for the client under difficult circumstances can be
extremely rewarding to the immigration lawyer.
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