PMID: 26793824Jan 23, 2016Paper

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

Review of Law and Social Change
Amelia WilsonStephanie Robins

Abstract

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 DO...Continue Reading

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