Assessing Mental Competence In Immigration Proceedings

In this narrative the forensic psychologist will try to explain the difference between psychological evaluations done to assess competence in immigration proceedings and competence in criminal proceedings.  the narrative will also describe what the respondent alien may need to possess in terms of decisional competence to appear before immigration court.  there will be some discussion as to the impairment needed to find someone not competent to participate in immigration proceedings.  the forensic psychologist will discuss how mental disorders are defined for the person of competence in immigration court or proceedings.  This definition and distinction is important because not all mental disorders or diagnoses will render the respondent alien not competent to proceed or participate in immigration proceedings.  the forensic psychological evaluation for immigration court has to list and flesh out the adjudicative and decisional standards or competencies for competence to proceed or participate in immigration proceedings.  The forensic psychological evaluation for immigration court should also identify the evidentiary standards used to measure the degree of competence to proceed or to participate shown by the respondent alien.

In immigration court, there are four main elements of due process. The immigration judge ensures these four elements are followed when a respondent alien is assessed for competence to participate or proceed in immigration court.  The elements include neutrality, interpersonal respect, participation, and trustworthiness.

In criminal court, the defendant does not receive any help from the judge but instead receives the support of a defense attorney.  in immigration court, the respondent alien does not receive an attorney but the immigration judge has a duty of help the respondent alien through the course of immigration proceedings.

In criminal court, the defendant has to meet dusky standard or some variation of it to be competent to proceed.  The competency standard has to prongs, which include factual and rational understanding of the proceedings and capacity to consult with counsel in order to be competent to proceed but this different in immigration court.  the competence to participate or proceed in immigration court requires the alien respondent to have the ability to participate in a manner that is meaningful and represent himself.  The competence prongs for competence in immigration court include three factors: the respondent alien has to know the nature and object of the proceedings.  the respondent alien who is competent to proceed or participate is one who once before immigration court has the ability to understand, exercise, and waive his rights given before the court.  the respondent alien who is trying to prove he is competent to proceed has to show that he can perform functions necessary for self representation.  The respondent alien who is said to be competent has to appear before immigration court and be able to address the allegations and charges against him.  the respondent alien, with little help from the judge, has to present evidence on his behalf and help in his own case.  The alien respondent who cannot follow directions present impairment to competence before immigration court.

According to the standards of immigration court, a respondent is competent to represent himself in the proceedings if you have adjudicative competencies  – which are things the respondent alien must know –  and you have decisional competencies – which are things that the respondent alien must be able to do.

When in immigration court, a respondent alien can be found not competent to proceed or participate if he has a mental disorder.  This mental disorder includes intellectual disability which is also known as mental retardation.  Because of the respondent alien’s mental disorder or mental disability, he is unable to satisfy the competency requirements.

A mental disorder does not include every possible diagnosis in the DSM 5.  Instead, the immigration court and immigration judge would consider as causes of lack of competence the defendants mental disorders or mental disability that cause significant impairments in cognitive, emotional, or behavioral functioning in the respondent alien.

The immigration judge can request an assessment of the respondent alien’s competence to proceed or participate whenever there is indicia of incompetence.  The forensic psychologist who is working for immigration court does the competence to proceed participate assessment but does not do treatment.

Criminal court: Competency to Stand Trial is most simply defined as the defendant’s ability to understand and participate in the court proceedings.  Depending on the jurisdiction, Competency to Stand Trial may also be referred to as Competence To Stand Trial, Competence To Proceed, or Fitness to Proceed (juvenile court).  Competency to Stand trial is necessary to ensure due process, provide equal treatment under the law, and maintain the dignity of legal proceedings.    Competency issues may be raised by the defense, prosecution, or judge, as long as there is sufficient and bona fide evidence to raise the concerns.  Some statutes even allow for jail medical/mental health staff to communicate with the court and report concerns regarding an inmate’s competency to stand trial.

Once the Judge has ordered a competency examination, a qualified mental health expert is assigned the case.  Competency evaluations are conducted by doctoral level mental health professionals (i.e., Forensic psychologist (expert witness) or Forensic Psychiatrist) who have the training and experience required in the field.  For example, in order to conduct Competency To Stand Trial examinations in the state of Texas, the Forensic psychologist (expert witness) or Forensic Psychiatrist is required to complete at least 24-hours of Texas-specific or particular forensic training relating to incompetency or insanity evaluations (Texas Code of Criminal Procedure, 46B.023.  Similarly, Florida statutes mandate that forensic evaluators undergo the training provided by the Department of Children and Family Services before conducting forensic evaluations for criminal or juvenile courts.

The criteria for Competency to Proceed varies by jurisdiction, but the standards are similar.  Here are some examples:

U S Code Title 18, 4241(a) Motion To Determine Competency of Defendant: At any time after the commencement of a prosecution for an offense and prior to the sentencing of the defendant, or at any time after the commencement of probation or supervised release and prior to the completion of the sentence, the defendant or the attorney for the Government may file a motion for a hearing to determine the mental competency of the defendant. The court shall grant the motion, or shall order such a hearing on its own motion, if there is reasonable cause to believe that the defendant may presently be suffering from a mental disease or defect rendering him mentally incompetent to the extent that he is unable to understand the nature and consequences of the proceedings against him or to assist properly in his defense.

Texas Code of Criminal Procedure (46B.003) Incompetency Presumptions (a) A person is incompetent to stand trial if the person does not have: (1) sufficient present ability to consult with the person’s lawyer with a reasonable degree of rational understanding; or (2) a rational as well as factual understanding of the proceedings against the person. (b) A defendant is presumed competent to stand trial and shall be found competent to stand trial unless proved incompetent by a preponderance of the evidence.

Florida Rule of Criminal Procedure 3.211 (a) Examination by Experts. Upon appointment by the court, the experts shall examine the defendant with respect to the issue of competence to proceed, as specified by the court in its order appointing the experts to evaluate the defendant, and shall evaluate the defendant as ordered. (1) The experts shall first consider factors related to the issue of whether the defendant meets the criteria for competence to proceed; that is, whether the defendant has sufficient present ability to consult with counsel with a reasonable degree of rational understanding and whether the defendant has a rational, as well as factual, understanding of the pending proceedings.

Texas Family Code (55.31a) Unfitness to Proceed: A child alleged by petition or found to have engaged in delinquent conduct or conduct indicating a need for supervision who as a result of mental illness or mental retardation lacks capacity to understand the proceedings in juvenile court or to assist in the child’s own defense is unfit to proceed and shall not be subjected to discretionary transfer to criminal court, adjudication, disposition, or modification of disposition as long as such incapacity endures.

Most jurisdictions provide a recommended list of factors to be considered during a competency to stand trial examination.  These factors may include current ability to:

  • Rationally understand the charges against the defendant and the potential consequences of the pending criminal proceedings;
  • Disclose to counsel pertinent facts, events, and states of mind;
  • Engage in a reasoned choice of legal strategies and options;
  • Understand the adversarial nature of criminal proceedings;
  • Exhibit appropriate courtroom behavior; and
  • Testify

Based in South Florida, Florida Forensic Psychology conducts Competency To Stand Trial evaluations in all of Arizona, Arkansas, Florida, Georgia, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Nevada, New Mexico, North Carolina, Oklahoma, South Carolina, Texas, and other states.