Hearing Difficult Voices: The Due Process Rights of Mentally Disabled Individuals in Removal Proceedings

Every day, immigration judges are faced with unrepresented respondents who present signs of severe mental impairment and possible incompetence. They are given no resources for, or guidance on, how to address the situation. Every day, non-citizens with mental impairments are ordered removed from the United States even though, if their stories were actually heard, they might be found eligible for relief. This article provides both theoretical and practical guidance to the decision makers who must address the problem. The article describes the current situation, in which various decision makers respond to the problem in various ways, often by glossing over it. The article then sets out a legal argument derived from different strands of due process jurisprudence (due process in removal proceedings; civil due process generally; and due process with respect to mentally impaired litigants) for why additional procedural protections are necessary. Finally, the article discusses the types of safeguards that would be feasible and adequate, such as setting a clear competency standard requiring both passive and active abilities, imposing disclosure duties on DHS and investigative duties on the immigration judges, creating an expert panel within DOJ to perform competency evaluations, revising procedural rules to require judges to focus on objective evidence where an applicant is incapable of satisfying the current standards for credible testimony, providing for skilled, court-appointed representation where necessary (in some cases in a hybrid guardian-advocate role), and authorizing immigration judges to terminate proceedings in the rare case in which no other safeguard would be adequate.