IRLI, on behalf of its client the Federation for American Immigration Reform (FAIR), submitted a friend-of-the-court brief at the request of the Board of Immigration Appeals (BIA) to address: (1) What circumstances, if any, trigger the need for an Immigration Judge (IJ) to make a competency assessment; (2) Whether the U.S. Department of Homeland Security (DHS) is the appropriate authority to conduct a competency examination; (3) Who has the authority to appoint a legal representative, guardian or custodian; (4) Whether termination of proceedings is an appropriate safeguard for an aggravated felon alien; and (5) Whether circumstances are changed if the incompetent alien claims United States citizenship (represented and unrepresented).
At the onset, IRLI clarified the rights of aliens in proceedings. IRLI highlighted the important differences between civil and criminal cases and how entitlements are affected depending on which type of case is involved. In civil proceedings, an individual who is thought to be incompetent is not entitled to a competency hearing. Because immigration removal proceedings are civil, and not criminal in nature, aliens are not entitled to a competency hearing.
IRLI further noted that if an alien is being confined by DHS, he or she will receive an evaluation. If the alien is represented by council, it is the responsibility of the attorney to bring evidence of mental illness to light. It is only when an alien is unrepresented may an Immigration Judge order a competency hearing.
Finally, IRLI noted that the safety and rights of an incompetent alien are entrusted to a custodian, guardian, close relative, etc., and not an IJ. Therefore, termination of a removal proceeding by the IJ is not an appropriate safeguard for the alien.