"No trial can be fair that leaves the defense to a man who is insane, unaided by counsel, and who by reason of his mental condition stands helpless and alone before the court." (1)
"How can we determine removability, availability of relief, and discretionary determinations if one side is physically present but not all there?" (2)
CONTENTS INTRODUCTION I. DETENTION AND REMOVAL OF THE MENTALLY DISABLED A. The Immigration Enforcement System B. Stipulated Removal C. Mental Health Services in Immigration Detention Facilities D. Long-Term and Indefinite Detention II. "PROTECTIONS" IN REMOVAL PROCEEDINGS A. Before Matter of M-A-M-. B. Matter of M-A-M-. C. Defining Competency III. RECOMMENDATIONS A. Educating the Parties B. Prohibiting Stipulated Removal C. Requiring Mental Health Screenings D. Establishing a Pro Bono Attorney Appointment System E. More Adequate Safeguards through the Agencies 1. The Difficulties of Defending against Removal 2. Administrative Investigation 3. Satisfaction of Laws against Discrimination 4. Disadvantages 5. Administrative Oversight CONCLUSION INTRODUCTION
On December 9, 2008, an immigration judge in Atlanta, Georgia, ordered Mark Lyttle removed to Mexico. (3) Nine days later, Immigration and Customs Enforcement (ICE) put Mr. Lyttle on a plane to Hidalgo, Texas, transported him to the border, and forced him to cross into Mexico on foot. (4) On December 26, Mr. Lyttle returned to the border and told the US Border Patrol agents that he was from North Carolina. (5) He had nothing to prove his claim because he was removed without any identification documents. (6) The agents noted that Mr. Lyttle appeared "mentally unstable" and threatened to hurt himself. (7) When they proceeded to interrogate him in Spanish, he did not respond. (8) Because he was unable to prove his immigration status in their country, Mexican authorities deported Mr. Lyttle to Honduras. (9) In Honduras, he was placed in an immigration camp where guards subjected him to mental and physical abuse until a media campaign highlighting his harsh treatment led to his release. (10) Mr. Lyttle was soon arrested in Nicaragua for not being able to show immigration status and deported to Guatemala. (11)
The events above are particularly troubling considering that Mr. Lyttle is a US citizen. (12) He was born in North Carolina to parents of Puerto Rican descent. (13) He and three of his siblings were taken from their birth parents when Mr. Lyttle was seven years old, and he was adopted by a North Carolina couple. (14) Mr. Lyttle does not speak Spanish and suffers from mental illness. (15)
In September 2008, before his first removal, Mr. Lyttle was serving a 100-day sentence in a North Carolina prison for misdemeanor assault for inappropriately touching an orderly at a mental facility where he was receiving treatment. (16) Near the end of his sentence, the prison notified ICE that Mr. Lyttle allegedly reported his place of birth as Mexico during booking. (17) To the contrary, Mr. Lyttle's Department of Homeland Security (DHS) file contained information indicating he was a US citizen. (18) Despite their contact information being present in his file, Mr. Lyttle's parents were not contacted. (19) During this time, Mr. Lyttle never had an attorney. (20) From his removal in December 2008 until he found the US Embassy in Guatemala City in April 2009, Mr. Lyttle was without medication for his mental illness and suffered from cycles of mania and depression. (21)
The US Embassy in Guatemala City located Mr. Lyttle's brother, a member of the US armed forces, who submitted Mr. Lyttle's adoption papers, allowing the Embassy to issue Mr. Lyttle a US passport. (22) On April 22, 2009, upon his attempt to reenter the United States by plane to Nashville, Tennessee, Mr. Lyttle was stopped by customs agents who believed his passport was fake. (23) Without attempting to contact Mr. Lyttle's family or verify his claim to US citizenship, the agents issued an expedited removal order against him. (24) When Mr. Lyttle did not show up at the airport, his family hired an attorney who located him in Atlanta, Georgia, where he was detained awaiting removal yet again. (25)
The US immigration system has "aptly been called a labyrinth that only a lawyer could navigate" (26) and a beast that is "second only to the Internal Revenue Code in complexity." (27) Despite the byzantine nature of the immigration system, only about 43 percent of individuals in removal proceedings were represented by attorneys in 2010.28 Both noncitizens and individuals claiming US citizenship have a statutory right to legal representation, but counsel must be obtained "at no expense to the government," (29) and detained individuals must overcome significant hurdles when attempting to procure or work with an attorney. (30) The ICE Health Services Corps (formerly called the Department of Immigration Health Services), the division of DHS responsible for providing healthcare services to immigration detainees, indicates that approximately 15 percent of individuals in immigration detention about 4,500 of the 33,000 individuals detained on any given day--suffer from a mental disability. (31) Many are unable to obtain legal representation or, like Mr. Lyttle, are pressured into accepting removal without an attorney present. (32)
This Note discusses the difficulties mentally disabled individuals face in the immigration system and argues for a different approach to assist respondents, government attorneys, and immigration judges in protecting the rights of this vulnerable population until a right to appointed representation is gained through legislation or litigation. Part I of this Note examines the problems faced by unrepresented mentally disabled individuals in the US immigration system, including inadequate treatment and difficulties in accessing legal representation. Part II discusses the current legal protections for the mentally disabled in removal proceedings. Part III lays out the core arguments and recommendations of this Note: first, that immigration authorities must be trained regarding mental health and mental competency issues; second, that mentally disabled individuals must be identified early and must not be allowed to agree to their own removal; third, that mental health checks be required for all individuals placed in removal proceedings; and fourth, that either regulations should be promulgated creating a pro bono attorney appointment system or that greater safeguards be provided by DHS and the Executive Office for Immigration Review to create a fairer system for those found to be mentally incompetent and thus unable represent themselves in their removal proceedings.
Mentally disabled noncitizens do not have a right to remain in the United States, (34) but they are entitled to a fair hearing and the opportunity to present a defense to their removal under the Fifth Amendment. (35) Arguments abound that attorneys must be provided to the mentally disabled (or to all immigrants in removal proceedings). (36) This Note does not suggest that these arguments are ill-advised or incorrect. Rather, this Note proposes a framework for immediate regulatory change that would better protect the due process rights of unrepresented mentally disabled citizens and noncitizens in immigration proceedings while reformers continue to seek provision of counsel.
DETENTION AND REMOVAL OF THE MENTALLY DISABLED
The immigration law enforcement and adjudication systems in the United States are difficult to navigate, especially for the mentally disabled. These individuals find themselves handcuffed in a foreign country and thrown into a detention center without attorneys and oftentimes without mental health services. DHS reports that approximately 15 percent of individuals in immigration detention are mentally disabled. (37) Although the US Constitution guarantees due process rights to these detainees, (38) they often find obtaining representation and receiving a fair hearing difficult, if not impossible.
The Immigration Enforcement System
From 1940 until DHS was created in 2002, the majority of immigration enforcement and adjudication authority rested with the US Attorney General. (29) The Immigration and Naturalization Service (INS), an agency under the Department of Justice (DOJ), was responsible for administering most of the immigration laws relating to immigration law enforcement, administrative adjudication, and deportation. (40)
The Homeland Security Act of 2002 divided these responsibilities by relieving the DOJ of the enforcement and service functions (including application processing) and creating two new agencies--one for enforcement and one for application processing and adjudication. (41) President George W. Bush, exercising authority provided by the Homeland Security Act, instead created three agencies: (1) the US Bureau of Customs and Border Protection (CBP); (2) ICE; (42) and (3) the Bureau of Citizenship and Immigration Services (USCIS). (43) The CBP operates at the US borders and other ports of entry, while ICE operates within the country and provides the trial attorneys who act as prosecutors within the immigration courts. (44) Administrative adjudication responsibilities remain with the DOJ under the Executive Office for Immigration Review (EOIR). (45) The EOIR consists of the Immigration Courts and an appellate body called the Board of Immigration Appeals (BIA). (46)
Removal, formerly called "deportation," (47) generally occurs by order of an immigration judge (48) or by the consent of the individual facing removal. (49) Immigration judges are administrative judges, formerly called "special inquiry officers," (50) who are not provided the same protections or independence as Article III or administrative law judges. (51) Generally, there are three ways individuals find themselves facing removal. First, CBP apprehends individuals attempting to enter the United States without...