Competency in Immigration Proceedings

1. Competency in Immigration Proceedings Melissa Piasecki, M.D. University of Nevada School of Medicine piaseckimd@gmail.com

2. Introduction and Disclaimer

3. 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

4. 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

5. 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

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

7. Competency is a Practical Matter • Functional • Specific to context

8. Competency is on a Sliding Scale • Complexity of case • Amount of assistance available • What is this defendant/ respondent facing? • Evidence • Stakes

9. Threats to Competency • Cognitive Impairment • Psychosis • Other psychiatric impairment

10. Threats to Competency • Cognitive Impairment • Low IQ • Dementia • Head injury • Drug use

11. 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

12. Threats to Competency • Psychosis: Hallucinations • Hearing voices that command or distract

13. Threats to Competency • Disorganized thoughts and speech

14. Threats to Competency • Mood • Depression: nihilism, wish for punishment • Mania: overconfidence, rapid speech, poor attention

15. Competency Can Be Created or Restored (sometimes) • Classes • Video

16. Restoration of Competency • Typically: treatment with medications in a hospital setting • Some outpatient restoration programs • Short shelf life

17. 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

18. Assessment of Competency • Records • Collateral information • Interview

19. 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.”

20. 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.

21. 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;    

22. 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;

23. 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.

24. 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

25. 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

26. 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.

27. 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

28. Why Standardized Tools? • Systematically assess relevant issues • Decrease subjectivity and bias • Allow for normative comparisons • Allow for testing of reliability

29. What are we assessing? • Practical knowledge • Beliefs • Behaviors • Decision making

30. 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?

31. 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?

32. 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?

33. 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/

34. Contrast: Testimonial Capacity 5 Basic Skills • Hear/ see • Recall what you saw/ heard • Describe what you saw/ heard • Understand the difference: truth vs lie • Understand moral weight of an oath Relevance to asylum applicants who testify to fear of persecution.

35. Special Problems and Populations • Mental Retardation/ Developmental Disabilities • Malingering • Role Conflict

36. 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

37. 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

38. Who Should Assess Competency • Mental health professionals • Psychologists • Psychiatrists • Forensic training • Forensic board certification • Legal professionals • Other

39. 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

40. 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

41. Role Conflict • Who should complete the competency assessment? • Avoid dual roles to protect • Objectivity • Duty to patient/ court • Confidentiality

42. 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

43. 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

44. 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

45. 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

46. 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