In the Matter of Amicus Invitation No. 16-06-21
On behalf of the Federation for American Immigration Reform (FAIR), IRLI has submitted an amicus brief to answer several complex questions posed by the Board of Immigration Appeals (BIA) in a case currently before the BIA regarding aliens who suffer from mental health conditions. Questions asked by the BIA included:
• Is a respondent who has been committed to a mental health treatment facility “detained … in custody” or “released” within the meaning of 8 C.F.R. § 1236.1(d)(1)?
Does this depend on the nature of the commitment arrangement? If so, what terms must be imposed as part of the commitment arrangement to ensure that it equates to detention?
• Is commitment to a mental health facility appropriate where a respondent has a mental health condition that causes him or her to be a danger if at liberty in the United States?
If so, what terms must be imposed as part of the commitment arrangement to reasonably assure the safety of the community?
• Is commitment to a mental health facility appropriate where a respondent has a mental health condition that causes him or her to pose a risk of flight such that no bond could reasonably assure his or her presence?
If so, what terms must be imposed as part of the commitment arrangement to reasonably assure the respondent’s presence at future proceedings?
The FAIR brief concluded based on case law, statutory law and regulation that the U.S. Department of Homeland Security (“DHS”) has a duty to screen aliens in detention facilities it operates or controls for mental incompetency or disorders, to provide treatment where medically indicated, and to inform the immigration judge of such indicia so that appropriate safeguards can be identified. FAIR noted that it is unclear whether DHS or the Executive Office for Immigration Review (“EOIR”) have authority to civilly commit dangerous aliens to mental health facilities, which could conflict with Supreme Court due process protections for all persons in civil commitment proceedings. However, detention of an alien whose mental disorder presents a danger to the community is mandatory, but remains subject to the same due process temporal constraints that protect other immigration detainees.