Competency in Immigration Proceedings

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Competency in Immigration Proceedings

• Melissa Piasecki, M.D.
• University of Nevada School of Medicine
• piaseckimd_at_gmail.com

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Introduction and Disclaimer
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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

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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

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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

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Overview

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

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Competency is a Practical Matter

• Functional
• Specific to context

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Competency is on a Sliding Scale

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

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Threats to Competency

• Cognitive Impairment
• Psychosis
• Other psychiatric impairment

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Threats to Competency

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

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Threats to Competency

• Psychosis
• Grandiose delusions
• I am the Messiah and mans 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

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Threats to Competency

• Psychosis Hallucinations
• Hearing voices that command or distract

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Threats to Competency

• Disorganized thoughts and speech

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Threats to Competency

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

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Competency Can Be Created or Restored (sometimes)

• Classes
• Video

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Restoration of Competency

• Typically treatment with medications in a
  hospital setting
• Some outpatient restoration programs
• Short shelf life

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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

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Assessment of Competency

• Records
• Collateral information
• Interview

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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.

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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.

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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    

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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

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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.

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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

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Process in Criminal Cases

• Questions about Criminal defendants competence
• Referral/ screen proceedings on hold
• Assessment and report
• Incompetent court ordered treatment in forensic
  hospital
• Court hearing
• Restored back to court

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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.

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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

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Why Standardized Tools?

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

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What are we assessing?

• Practical knowledge
• Beliefs
• Behaviors
• Decision making

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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?

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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?

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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/

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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.

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Special Problems and Populations

• Mental Retardation/ Developmental Disabilities
• Malingering
• Role Conflict

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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

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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

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Who Should Assess Competency

• Mental health professionals
• Psychologists
• Psychiatrists
• Forensic training
• Forensic board certification
• Legal professionals
• Other

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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

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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

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Role Conflict

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

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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

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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

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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

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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/ILA20
  2009/vol3no4.pdf
• American Academy of Psychiatry and the Law
  Guidelines on Evaluation of Competency to Stand
  Trial http//www.jaapl.org/cgi/reprint/35/Suppleme
  nt_4/S3

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References

• Indiana v Edwards http//www.law.uh.edu/healthlaw/
  perspectives/2008/28AK2920Edwards.pdf
• McArthur Foundation http//www.macarthur.virginia
  .edu/adjudicate.html
• Overview of competency assessment for judges
  http//www.unl.edu/ap-ls/student/CST20assess.pdf