The request simply noted that the respondent had been crying so uncontrollably that she could not continue with her preliminary hearing. The respondent, a 40-year-old Jamaican citizen who has been a legal resident of the United States for nearly 30 years, was in removal proceedings because of a number of petty theft arrests dating back to her late teens.

The run-ins with the law were part of a pattern of compulsive behaviors on her part that included substance abuse. The respondent was also a survivor of rape and domestic violence, and was taking medication for depression during her detention by Immigration and Customs Enforcement (ICE). As a result of her temporary incapacity, an immigration judge asked the Pennsylvania Immigration Resource Center to consult with the respondent prior to her next hearing.

A PIRC attorney was able to represent her pro bono and also to arrange for a pro bono mental health evaluation by a generous and experienced clinical psychologist. The respondent is just one of approximately 700 noncitizens held by ICE at the York County Prison, many of whom suffer the emotional effects of prolonged detention. Her case is not unusual in York, nor in other detention centers nationwide: A 2010 study by Human Rights Watch estimates that more than 15 percent of noncitizens detained by DHS have a mental disability.

In May 2011, the Board of Immigration Appeals (BIA) issued a decision in Matter of M-A-M- that potentially bears on situations like that of the PIRC client described above.The response among immigration practitioners and advocacy groups has been cautiously optimistic, because while the decision affirms that crucial due process protections flow to noncitizens in high-stakes court proceedings, it does not appear to require action that would fully protect the most vulnerable respondents from the very harsh consequence of deportation.

Matter of M-A-M- also concerned a Jamaican citizen. M-A-M- (as BIA decisions redact proper names) had been admitted to the United States as a lawful permanent resident in 1971, when he was 10 years old. Because of substance abuse violations likely connected to his mental health issues, he was put into deportation proceedings and mandatory detention in 2009. Appearing at his first hearing pro se — as more than 80 percent of noncitizens in deportation proceedings do — M-A-M- had difficulty answering basic inquiries into biographical details, and informed the judge that he had been diagnosed schizophrenic. At subsequent hearings the respondent asked for a change of venue to be closer to family, complained that his mental illness was not being treated in detention, and asked to see a psychiatrist. All of these reasonable requests were denied. Predictably, M-A-M-, who had expressed a fear of return to his country of birth, was ordered removed on June 16, 2010.

The BIA accepted appeal and issued its decision in an attempt to “ensure that proceedings are as fair as possible in an unavoidably imperfect situation.” Noting that basic concepts of fundamental fairness theoretically undergird the deportation process, the board adopted a test for immigration judges to assess a noncitizen’s capacity to participate in removal proceedings where there are “indicia of incompetency.”

The test calls for a judge to consider whether the noncitizen understands the nature and object of the proceedings, whether the noncitizen can consult with an attorney or legal representative if he or she is represented, and whether the noncitizen has a reasonable opportunity to examine and present evidence and cross-examine government witnesses. If the judge finds that an immigrant is not competent to proceed, the judge “will evaluate and provide appropriate safeguards.”

The BIA found a basis for these due process protections in the statute governing immigration and naturalization, and by analogy to case law in other types of proceedings. The statutory basis stems from Section 240(b)(3) of the Immigration and Naturalization Act (INA), which states that when a noncitizen’s mental competency is at issue, the attorney general, through the immigration courts or BIA, “shall prescribe safeguards to protect the rights and privileges of the alien [sic].” The attendant regulations provide some further guidance regarding those who lack capacity, providing that DHS and judges may, for example, consider serving documents on a legal representative, custodian or relative.

With regard to other areas of law, the BIA cited the 1975 Supreme Court case Drope v. Missouri , which ruled that a criminal defendant is not competent to stand trial if “he lacks the capacity to understand the nature and object of the proceedings against him, to consult with counsel, and to assist in preparing his defense.”

As is obvious from the holding in Matter of M-A-M- , the board found this test instructive. And although the board did not cite further cases, I will note that the Supreme Court and the circuits have found that the Fifth Amendment sometimes requires appointment of counsel for individuals of diminished capacity where liberty interests are at stake. Matters of juvenile delinquency, termination of parental rights, and revocation of probation present possible outcomes grave enough that, though the proceedings were civil in nature, fundamental fairness required the appointment of counsel for individuals who could not adequately represent themselves.

The most robust protection that may result from M-A-M- , then, is that an immigration judge may appoint counsel at no cost to the respondent in a deportation proceeding. The language of M-A-M-­ by no means requires this result, but neither does the ruling foreclose it. Likewise, the INA does not prohibit the appointment of counsel where it is necessary to ensure a proceeding’s fundamental fairness.

The 9th U.S. Circuit Court of Appeals in its 1988 opinion in Escobar Ruiz v. INS ruled that a noncitizen’s right to representation “at no expense to the government” in deportation proceedings is not an affirmative limitation on the government’s authority to appoint paid counsel in some situations. Further, administrative law governing federal agencies authorizes spending necessary to carry out essential functions, and the effective accomplishment of those functions. Given the well-known backlog of immigration court dockets, and the difficulty some respondents have in getting through even preliminary hearings pro se, the appointment of paid counsel could greatly increase the efficiency of removal proceedings while offering a greater chance at relief to eligible noncitizens.

On the other hand, Matter of M-A-M- does not prescribe any specific judicial action to ensure that the procedural safeguards mentioned in the INA are adequate. One simple — if partial — remedy for cases where there are indicia of incompetency would be to eliminate the hearings by televideo that are a regular part of the detention and deportation system. Yet even this anodyne measure is not among the non-exhaustive list of possible safeguards, none of which are required even in the most extreme cases. Simply put, the decision does not establish a constitutional floor.

Second, the decision may test the expertise of judges already overwhelmed with a mile-high docket in a devilishly complex area of law. The suggestion that immigration judges should “observe certain behaviors by the respondent, such as the inability to understand and respond to questions, the inability to stay on topic, or a high level of distraction” will invariably burden adjudicators who preside over scores of cases each week. Plus, judges may lack the psychological expertise needed to make fine distinctions in an environment where, owing to the pressures of detention, language barrier, and the high stakes of the proceeding, many respondents display precisely those indicators regardless of prior mental health diagnoses.

Finally, the suggestions in Matter of M-A-M- rely too heavily on the good will of the parties involved — specifically, DHS counsel and the immigration judge — and base the remedies on safeguards already required by statute and regulation. For example, the safeguards mentioned include the grant of a continuance for good cause, the judge’s responsibility to develop the record for pro se respondents, and DHS’s obligation to provide the court with relevant materials regarding a respondent’s competency.

All of these admittedly helpful options were readily available to the government prior to the decision in M-A-M- . The mentally ill noncitizen is still dependent on good fortune, good timing and the uncertain discretion of DHS attorneys and immigration judges who hold that one of the government’s interests in these proceedings is meaningful due process.

The PIRC client discussed earlier was one detained noncitizen for whom all the right pieces fell together at the right time. An overworked but humane immigration judge took the time to contact a legal services organization. The legal services organization was able to take on a new case. A dedicated clinician with extensive human rights experience was able to travel from a nearby town and write a report that vividly illustrated the merits of her claim. Finally, DHS did not appeal.

Two days before Mother’s Day 2011, this mother of six U.S. citizen children returned to a home she hadn’t seen in more than a year. It remains to be seen whether other mentally ill noncitizens — including survivors of trauma, domestic violence victims and those fleeing persecution overseas — will have to rely on such an unlikely chain of good fortune in a post- M-A-M- world.

Matthew J. Lamberti is a staff attorney with the Pennsylvania Immigration Resource
Center.