A Laboratory for Scholarship: Immigration Clinic Advocates for Rights of Mentally Incompetent in Removal Proceedings

The Immigration Clinic is at the forefront of advancing the rights of mentally incompetent individuals in deportation proceedings.  In addition to providing representation to mentally incompetent clients, the Clinic is actively shaping the legal landscape on issues of mental competence through scholarship and leadership in helping implement national-level policies. 
In September 2014, the Immigration Clinic won protection under the Convention Against Torture for a mentally incompetent client from Iran who was at risk of torture due to his religious conversion.  Several students worked on this case over three semesters, including Bryn Esplin (JD ’14), Katelyn Franklin (JD ’14), Morgan Petrelli (JD ’13), Nicole Scott (JD ’14), and Dawn Thoman (JD ’14). Bryn and Nicole represented the client during his merits hearing in spring 2014, where they took testimony from three witnesses, including a psychiatric expert. The case involved challenging legal questions regarding the firm resettlement bar to asylum and the role of mental illness in determining whether a conviction constitutes a “particularly serious crime,” which is a term of art in immigration law.  The case also required students to grapple with various ethical challenges because the client was found incompetent to assist counsel.  One of the issues on appeal will be the denial of a motion to terminate based on mental incompetence.

Professor Marouf has argued for termination of removal proceedings involving mentally incompetent individuals in her recent article, Incompetent but Deportable: The Case For a Right to Mental Competence in Removal Proceedings, 65 Hastings L.J. 929 (2014).  This article attracted the attention of the Executive Office for Immigration Review (EOIR), part of the Department of Justice, which is implementing a new program to appoint qualified representatives to mentally incompetent immigration detainees.  In July 2014, Professor Marouf was invited by EOIR and the Vera Institute of Justice to help train appointed representatives from several states, focusing specifically on how to handle cases where the client’s mental illness is so severe that it precludes him or her from assisting counsel.  Professor Marouf’s talk drew on her article, which was circulated to all of the participants.  In addition, the Immigration Clinic provided a sample motion to terminate, which was circulated to the appointed representatives. Recently, the Vera Institute of Justice invited the Immigration Clinic to serve as appointed counsel in all Nevada cases involving mentally incompetent immigration detainees or individuals released from immigration detention who are living in Nevada.  The Immigration Clinic looks forward to this opportunity to protect and advance the rights of mentally incompetent immigrants in Nevada while working towards transforming the system nationwide.