Competency in Immigration Proceedings

Melissa Piasecki, M.D.University of Nevada School of Medicine

piaseckimd@gmail.com

Introduction and Disclaimer

Mental Competence for Immigration Proceedings

“It seems that this is one of those areas everybody knows is important but nobody knows too much about.”

Henry Dlugacz, J.D., M.S.W.• Author of Competence in the

Law: From Legal Theory to Clinical Application, 2009

Mental Competence in Criminal Courts

“The issue of present mental incompetence, quantitatively speaking, is the single most important issue in the criminal mental health field.”

24,000 and 60,000 forensic evaluations/ year

• American Bar Association's Criminal Justice Mental Health Standards, 1994

Objectives

• Explore competency standards applied to other settings

• Identify tools and techniques for assessment of competency

• Discuss special issues of mental retardation, malingering and identifying examiners

Overview

• General principles of competency• Criminal competency assessments• Other competencies• Special problems and populations

Competency is a Practical Matter

• Functional• Specific to context

Competency is on a Sliding Scale

• Complexity of case• Amount of assistance available• What is this defendant/ respondent facing?– Evidence– Stakes

Threats to Competency

• Cognitive Impairment• Psychosis• Other psychiatric impairment

Threats to Competency

• Cognitive Impairment– Low IQ– Dementia– Head injury– Drug use

Threats to Competency

• Psychosis– Grandiose delusions• “I am the Messiah and man’s rules have no power over

me.”

– Paranoia• “You are trying to kill me so I must remain silent.”• “Everyone in the courtroom is an imposter.”

– Other bizarre beliefs that interfere with understanding nature of proceedings

Threats to Competency

• Psychosis: Hallucinations– Hearing voices that command or distract

Threats to Competency• Disorganized thoughts and speech

Threats to Competency

• Mood– Depression: nihilism, wish for punishment– Mania: overconfidence, rapid speech, poor

attention

Competency Can Be Created or Restored (sometimes)

• Classes• Video

Restoration of Competency

• Typically: treatment with medications in a hospital setting– Some outpatient restoration programs

• Short shelf life

Unrestorable

• Not all mentally ill people respond adequately to treatment

• Jackson v. Indiana: there must be a prospect of restoration within a reasonable time

• Most states: possible civil commitment

Assessment of Competency

• Records• Collateral information• Interview

Criminal Competency: Dusky Standard

“Sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding” and “a rational as well as factual understanding of the proceedings against him.”

Variations: Nevada“Incompetent” means that the person does not

have the present ability to: (a) Understand the nature of the criminal

charges against him; (b) Understand the nature and purpose of the

court proceedings; or (c) Aid and assist his counsel in the defense at

any time during the proceedings with a reasonable degree of rational understanding.

Variations: Utah Code

The experts shall consider ... and address, in addition to any other factors determined to be relevant ... : (a) the defendant's present capacity to: (i) comprehend and appreciate the charges or allegations against him; (ii) disclose to counsel pertinent facts, events, and states of mind; (iii) comprehend and appreciate the range and nature of possible penalties, if applicable, that may be imposed in the proceedings against him;

Variations: Utah Code

(iv) engage in reasoned choice of legal strategies and options; (v) understand the adversary nature of the proceedings against him; (vi) manifest appropriate courtroom behavior; and (vii) testify relevantly, if applicable; (b) the impact of the mental disorder, or mental retardation, if any, on the nature and quality of the defendant's relationship with counsel;

Variations: Utah Code

(c) if psychoactive medication is currently being administered: (i) whether the medication is necessary to maintain the defendant's competency; and (ii) the effect of the medication, if any, on the defendant's demeanor and affect and ability to participate in the proceedings.

Competency to Self Represent: Indiana v. Edwards, 2008

• A higher standard for self-representation when proceeding in criminal trial

• No guidance as to what that higher standard is• Contrast Godinez

Process in Criminal Cases• Questions about Criminal defendant’s

competence• Referral/ screen; proceedings on hold• Assessment and report• Incompetent: court ordered treatment in

forensic hospital• Court hearing• Restored: back to court

MacArthur Adjudicative Competence Study

• Recognized the absence of structured and standardized research measures for the assessment of abilities

• Developed measures and to use them to provide information to clinicians and policy makers to help them address questions about the adjudicative competence of criminal defendants.

Tools• Tests of knowledge• Structured interviews– Fitness Interview Test (FIT), 70 questions– Evaluation of Competency to Stand Trial (ECST-R)

• Problem solving abilities– MacArthur Competence Assessment Tool (MacCAT-CA)

22 items

• IQ tests not routine• Always need interview with case specific questions

Why Standardized Tools?

• Systematically assess relevant issues• Decrease subjectivity and bias• Allow for normative comparisons• Allow for testing of reliability

What are we assessing?

• Practical knowledge• Beliefs• Behaviors• Decision making

Interview: Practical Knowledge

• Do you know what your legal problems are?• What are the possible outcomes?• What are your options?• Who are the people in the courtroom?• Who can help you?

Interview: Beliefs and Behaviors

• Delusions– Any special rights or qualities?– Is there anyone trying to harm you?

• Can this person tolerate the courtroom?• Is there evidence of distractibility that could

interfere with participation?

Decision Making

• Case based options and scenarios– Confronting witnesses– Problem solving with attorney

• Implications– What do you give up when you plead guilty?– What do you risk when you go to trial?

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What Should a Report Include?

• Warning of limits of confidentiality• Description of abilities relevant to competency in

question• Opinion tied to statutory language• Clinical recommendations if requested• What the court specifies (Hawaii)• Guideline info:

www.umassmed.edu/forensictraining/reports/

Contrast: Testimonial Capacity

5 Basic Skills1.Hear/ see2.Recall what you saw/ heard3.Describe what you saw/ heard4.Understand the difference: truth vs lie5.Understand moral weight of an oath Relevance to asylum applicants who testify

to fear of persecution.

Special Problems and Populations

• Mental Retardation/ Developmental Disabilities

• Malingering• Role Conflict

MR (DD) and Malingering

• Even low IQ (less than 60) can be competent– MR diagnoses typically define MR as IQ 70 or

below plus other deficits

• Tools developed for MR criminal defendants (CAST-MR)– 50 questions, most are multiple choice, 4th grade

level

Malingering

• Feigned or exaggerated symptoms with clear gain

• Tools to assess– Extended observation (inpatient)– SIRS (not validated in non-US populations)• Structured Interview of Reported Symptoms

– TOMM – response style• Test of Malingered Memory

Who Should Assess Competency

• Mental health professionals– Psychologists– Psychiatrists– Forensic training– Forensic board certification

• Legal professionals• Other

States Vary on Who Assesses Competency

• Hawaii: – 3 MD and PhD examiners from a panel– Inpatient and outpatient assessments– Contracted individually through district court– Training and certification– Specific format set forth by court

States Vary on Who Assesses Competency

• Nevada: – Felonies: 2 exams (3 with a tie) by MDs or PhDs

contracted with the Nevada Dept of Mental Health and Developmental Disabilities

– Misdemeanors evaluated by MSWs– Restoration evaluations by treating doctors– Training and certification required

Role Conflict

• Who should complete the competency assessment?

• Avoid dual roles to protect– Objectivity– Duty to patient/ court– Confidentiality

Immigration Cases

Jaadan v. Gonzales, 6th Circuit Court, 2006• Mute, signs of mental illness during hearings• Competency hearing to determine need for

attorney or guardian is unrepresented • Mental incompetence does not preclude

deportation

Immigration Cases

Nee Hao Wong v. INS, 9th Circuit Court, 1977• Deportation proceedings may continue

against aliens determined to be incompetent• Mental incompetence does not preclude

deportation

Summary

• Principles of competence• Dusky standard, Indiana v Edwards• Limited immigration cases (Review of more

cases, Mimi Tsankov)• Opportunity to establish standards for both

represented and unrepresented participants in immigration courts

References• Competency Hearings for Aliens During Deportation

Hearings, J. Am Acad. Psych. Law, 35(4),2007• Mental Competence in the Context of Immigration

Proceedings, J Immigrant Health, 6(1), 2004 (Asylum applicant competency)

• Incompetent respondents in removal proceedings, Mimi Tsankov, Immigration Law Advisor April, 2009 http://www.usdoj.gov/eoir/vll/ILA-Newsleter/ILA%202009/vol3no4.pdf

• American Academy of Psychiatry and the Law Guidelines on Evaluation of Competency to Stand Trial http://www.jaapl.org/cgi/reprint/35/Supplement_4/S3

References• Indiana v Edwards

http://www.law.uh.edu/healthlaw/perspectives/2008/%28AK%29%20Edwards.pdf

• McArthur Foundation: http://www.macarthur.virginia.edu/adjudicate.html

• Overview of competency assessment for judges: http://www.unl.edu/ap-ls/student/CST%20assess.pdf