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Does the U.S. Deport People Because They Are Mentally Ill?

Posted by Matthew Green | Feb 19, 2014 | 0 Comments

Not too long ago, a new plan focused around deportation of the mentally ill was introduced. The plan was announced in April of last year and its first phase was implemented in August. The Executive Office for Immigration Review (EOIR) created this plan with the hopes of providing “enhanced protections to unrepresented immigration detainees with serious mental disorders or conditions that may render them mentally incompetent to represent themselves in immigration proceedings, and will facilitate the conduct of those proceedings.”

So, what exactly does this mean for immigrants who are “mentally incompetent?” Well, the plan has not been completely worked out yet and it's still in its initial stages, but many are hopeful about what it will mean for immigrants who are need of help and too often fall through the cracks.

Specifically, the EOIR has stated that the policy will include important procedural protections. This means that screenings will be done in order to determine whether the immigrant has “serious mental disorders or conditions” upon entering a U.S. Immigration and Customs Enforcement Health Services Corps (IHSC)-staffed immigration detention facility.

Next, the programs calls for cooperation with non-IHSC-staffed immigration detention facilities when identifying detainees at those facilities as having “serious mental disorders or conditions.” In addition, competency hearings and independent psychiatric or psychological exams must be available to detainees and those who are deemed mentally incompetent shall have qualified representatives made available to them.

Further, the policy also calls for bond hearings to be held for detainees who have been identified as having a “serious mental disorder or condition,” when that condition renders them incompetent to represent themselves and have been detained in a detention facility for a minimum of six months.

When there is an indication of mental incompetency, an immigration judge will call for a competency hearing to be held that will determine if the detainee is competent to represent himself in immigration proceedings. At this point, the judge can call for an independent exam and psychiatric or psychological report if she is unable determine the immigrant's capacity based on previously presented evidence.

If a detainee is considered to be incapable of representing himself in his immigration proceedings, EOIR will provide him with a qualified representative. Further, the plan states that detainees who were identified as having a serious mental disorder or condition that may render them mentally incompetent to represent themselves and who have been detained for a minimum of six months will also be give a bond hearing.

This policy is definitely needed. Up until this point, there has been a gap in the system. Immigration officials have acknowledged the fact that there was little guidance in how to deal with detainees who suffer from mental conditions. A judge was not supposed to accept a guilty plea from an “unrepresented incompetent” defendant in criminal proceedings, but there were no procedures in place to determine an immigrant-detainee's competency.

So, what do you think? Is this policy going to be effective in providing those with mental conditions the proper representation throughout immigration proceedings?

About the Author

Matthew Green

Managing Partner. Green | Evans-Schroeder (formerly Law Offices of Matthew H. Green) focuses on the aggressive defense of immigrants. A native of Arizona, Mr. Green understands the difficulties that immigrants and families of immigrants face when a loved one is charged with a crime. He knows how frightening it can be for some...


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