The Board of Immigration Appeal’s decision in
Matter
of J-R-R-A-, 26 I&N Dec. 609 (BIA 2015) is a milestone decision in
protecting an asylum applicant who presented competency issues that were not
appropriately assessed by the Immigration Judge. It also untangles the ethical conundrum
that a lawyer has when the client is unable to testify credibly due to a
cognitive disability.
The respondent in Matter of J-R-R-A- was a native and citizen of Honduras, who
claimed that he would be harmed upon his return to Honduras by a man who had
murdered his brother 15 years ago. His testimony was characterized as confusing,
disjointed and self-serving. He also laughed inappropriately during the
hearing. Although the Immigration Judge observed that the respondent’s behavior
and testimony were unusual, the BIA found that the respondent’s competency
should have been assessed under Matter
of M-A-M-, 25 I&N Dec. 474
(BIA 2011). In the landmark Matter of
M-A-M- decision, the BIA held that for a respondent 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. As the respondent demonstrated various indicia of incompetence in Matter of J-R-R-A-, the BIA held that
the IJ should have taken measures to determine whether the respondent was
competent to participate in these proceedings in accordance with the guidelines
in Matter of M-A-M-, and remanded the
case back to the IJ.
The BIA could have stopped there and it would
have still been a good decision, but the BIA went further and acknowledged that
the respondent’s testimony was not credible due to the respondent’s diminished
capacity, which prevented him from obtaining asylum. The IJ had denied the
asylum claim by curtly opining that the respondent’s cognitive difficulties are
“not a license to give incredible testimony.” A respondent presenting an asylum
claim must establish a well-founded fear of persecution by demonstrating both a
genuine subjective fear of persecution and by also presenting evidence establishing objectively
that such a fear is reasonable. See
INS.v. Cardoza-Fonseca, 480 U.S. 421 (1987). In light of such a standard,
an asylum claimant must present credible testimony in order to establish his or
her subjective fear of persecution, supported by objective evidence to establish
that the fear is reasonable. A respondent with diminished capacity may not be
capable of presenting credible testimony, and as in the case of the respondent
in Matter of J-R-R-A-, may be at grave
risk of being denied asylum even if he or she has a genuine fear of persecution.
One can also draw important lessons from this
decision for the lawyer who represents a client with diminished capacity. A
lawyer under the ethical rules of professional conduct cannot “offer evidence
that the lawyer knows to be false.” See
ABA Model Rule 3.3(a)(3). Thus, when a lawyer observes a client presenting testimony
knowing that it is false, the lawyer is under an ethical obligation to not have
the client offer it. If the client has already offered evidence that the lawyer
knows is false, under ABA Model Rule 3.3(b), the lawyer is under an ethical
duty to take reasonable remedial measures to rectify the fraudulent conduct,
and if necessary, disclose it to the tribunal. ABA
Model Rule 1.14 also instructs a lawyer to maintain a normal lawyer-client
relationship as far as possible with a client who presents competency issues,
and thus all the ethical rules that affect the lawyer-client relationship are
applicable even when a lawyer represents a client with diminished capacity,
including the lawyer’s duty of candor to the tribunal. Still, Rule 1.14 allows
a lawyer to take reasonably protective action when a client with diminished
capacity 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 BIA in Matter of J-R-R-A- implicitly recognized the lawyer’s ethical conundrum
regarding her duty of candor to the tribunal, but held that a client with
diminished capacity should be allowed to provide testimony that may not be
believable so long as there is “no deliberate fabrication involved.” In this
way, the lawyer may allow the client to
meet the subjective fear prong under the asylum standard even if the testimony
is not true, and the IJ should then focus on whether the respondent met his
burden of proof based on the objective evidence in the record. The BIA commendably recognized that “[t]his
safeguard will enhance the fairness of the proceedings by foreclosing the
possibility that a claim is denied solely on testimony that is unreliable on
account of the applicant’s competency issues, rather than any deliberate
fabrication.”
When I last blogged
on mental competency issues in immigration practice, I noted that this area
was a work in progress and there was much work that needs to be done to develop
standards and provide clear guidance. Matter
of J-R-R-A- goes a long way in
filling this lacuna by recognizing the vulnerability of an asylum claimant with
competency issues, and also reconciling the lawyer’s ethical conflict regarding
not offering false evidence to a tribunal. I also commend readers to the ABA’s recent
excellent publication entitled Representing
Detained Immigration Respondents of Diminished Capacity: Ethical Challenges and
Best Practices. Representing clients
with mental competency issues in immigration matters presents great challenges
as well as amazing rewards. Such clients are indeed the most vulnerable,
especially when presenting complex asylum claims in immigration court. The lawyer
plays a vital role in ensuring that the client is protected and is provided
with the necessary safeguards, and can also gain tremendous satisfaction in
being able to assist such a client navigate through the labyrinthine
immigration system and emerging victorious.
At
a time when politicians in the western world, swayed by public opinion, are
showing increasing hostility toward asylum seekers fleeing persecution, and
making it harder for them to assert claims that are accorded to them under law,
we can only hope that decisions such as Matter
of J-R-R-A- break the mold and provide necessary safeguards, especially
when asylum claimants have diminished capacity. While this decision involved an
adult with diminished capacity, minors inherently have diminished capacity, and
should be equally protected under Matter
of J-R-R-A- especially when they have undertaken hazardous journeys fleeing
persecution, and some have also died
tragically in pursuit of freedom. Although only an administrative decision, Matter of J-R-R-A- is a shining example of
how law ought to develop and evolve in safeguarding the rights of a vulnerable
population fleeing persecution, notwithstanding the political attitudes of the
day.
No comments:
Post a Comment