Tag Archive for: Matter of M-A-M-

Cyrus Mehta

The Ethical Obligations of a Lawyer Who Represents a Three Year Old Child

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There has been a justifiable sense of shock and outrage after a senior immigration judge testified in a legal proceeding that three and four year olds could represent themselves in complex removal proceedings. This is precisely what Immigration Judge Weil said in a deposition on behalf of the Department of Justice:

I’ve taught immigration law literally to three year olds and four year olds. It takes a lot of time. It takes a lot of patience. They get it. It’s not the most efficient, but it can be done.  

The Immigration Judge repeated this same assertion two more times during the deposition. These ludicrous assertions have now gone viral, and there has been much eloquent protest, although immigration attorney Amber Weeks’ takes the cake when she tried to test these assumptions on her own three year old child, and this is what she found:

I happen to have a three year old daughter, so I interviewed her to test the theory of whether she could answer even the most basic questions to represent herself in immigration court. Where were you born? Where were your parents born? Where do you live? Where would you like to live? Not legal questions, but just basic questions that a kind and thoughtful judge would want to know before deporting a child (See first video below.) Although hilarious, her candid answers are heart-wrenching when I consider where unrepresented children in immigration court will end up.

Not much has been written in the aftermath of this incident about a how a lawyer ought to handle this situation, especially if he or she had a three year old as client. Unfortunately, at the outset, most unaccompanied children are not provided legal representation, and even if they are older than three year old, ought to be provided with a lawyer as they are many times more vulnerable than an adult. The Board of Immigration Appeals in Matter of M-A-M-, 25 I&N Dec. 474 (BIA 2011), has already held that for a respondent to be competent to participate in an immigration proceeding, he or she must have a rational and factual understanding of the nature and object of the proceeding and a reasonable opportunity to exercise the core rights and privileges afforded by the law.  The decisive factors are whether the respondent understands the nature and object of the proceedings, can consult with the attorney or representative, and has a reasonable opportunity to examine adverse evidence, present favorable evidence and cross examine government witnesses. When a respondent in removal proceedings is incapable of participating, the court must provide adequate safeguards, including ensuring legal representation.  It is readily obvious that a minor may not be able to participate in a proceeding; but unfortunately the Matter of M-A-M- safeguards are not being applied to minors who need them the most, especially a three year old!

Assuming the three year old has the privilege of having a lawyer, what are the lawyer’s ethical obligations when representing such a client? The lawyer is guided by ABA Model Rule 1.14, as adopted in state bar ethical rules of professional conduct:

Rule 1.14 Client With Diminished Capacity

(a) When a client’s capacity to make adequately considered decisions in connection with a representation is diminished, whether because of minority, mental impairment or for some other reason, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client.

(b) When the lawyer reasonably believes that the client has diminished capacity, is at risk of substantial physical, financial or other harm unless action is taken and cannot adequately act in the client’s own interest, the lawyer may take reasonably necessary protective action, including consulting with individuals or entities that have the ability to take action to protect the client and, in appropriate cases, seeking the appointment of a guardian ad litem, conservator or guardian.

(c) Information relating to the representation of a client with diminished capacity is protected by Rule 1.6. When taking protective action pursuant to paragraph (b), the lawyer is impliedly authorized under Rule 1.6(a) to reveal information about the client, but only to the extent reasonably necessary to protect the client’s interests.

Rule 1.14, at the outset, instructs a lawyer to maintain a normal lawyer-client relationship as far as possible. Thus, to the extent that a client with diminished capacity is capable of making competent decisions, including a child, the lawyer must follow them. Comment 1 to Rule 1.14 states, “For example, children as young as five or six years of age, and certainly those of ten or twelve, are regarded as having opinions that are entitled to weight in legal proceedings concerning their custody.”   A lawyer may seek help from a family member or others in communicating with a client with diminished capacity; and according to Comment 2 to Rule 1.14, the presence of such persons does not affect the applicability of the attorney-client privilege. When a lawyer represents a child, all the other ethical obligations that a lawyer owes to a client trigger, such as the duty to provide competent representation (Rule 1.1), be diligent (Rule 1.3), avoid conflicts of interest (Rule 1.7) and to adequately communicate with the client (Rule 1.4). In fact, there is a heightened duty to communicate with a child client in a way that the child will be able to properly understand the removal proceeding and make informed decisions.

Still, just because a child is older does not absolve the lawyer to ensure that the child is not at risk of harm. Even a twelve year old child, especially one who has suffered trauma or abuse, is extremely vulnerable and is at risk of being harmed by not being capable of making appropriate decisions in a removal hearing. Of course, compared to a twelve year old, a three year old will be far more vulnerable.  Under the next prong, 1.14(b), a lawyer is allowed to take reasonable protective action on behalf of the client when the lawyer reasonably believes that the client is at risk of harm and cannot adequately act in his or her own interest. This is doubtlessly going to apply to any minor, but more so with a three year old.  The lawyer may consult with parents, other family members or individuals and entities that have the ability to protect the child, and if necessary, even seek the appointment of a guardian ad litem or guardian.

A three year old is likely to be eligible for Special Immigrant Juvenile (SIJ) relief, assuming a court can make a finding of neglect or abandonment based on unification with one or both parents not being viable, or if the child has been placed in the custody of a state agency or individual or entity.  Assuming the child is not eligible for SIJ, and there is no other relief against removal, the attorney representing the child must make every effort to invoke the protections under Matter of M-A-M, and argue that such a child is unable to comprehend the nature of the proceeding and either seek termination or administrative closure of the removal proceeding. Still, the attorney, as part of taking protective action, can seek asylum on behalf of the child, assuming that there is objective evidence that the child will fear harm or the child has already suffered past persecution based on one of the protected grounds for asylum. Even if a child will  not be able to testify credibly, the BIA in Matter of J-R-R-A, 26 I&N Dec. 609 (2015) allowed a client with diminished capacity to nevertheless testify regarding his or her subjective fear, while there was credible objective testimony. This can get further complicated when the child’s parent or guardian wishes to take the child back to the home country, and the lawyer knows that the child will be harmed in that country. When a child is twelve, it is easier for the lawyer to maintain a normal lawyer-client relationship,  and abide by that child’s informed decision. It becomes much harder when the child is only three  years old. Under these circumstances, the lawyer must take protective action by seeking the intervention of child protection agencies and the like. Comment 9 to Rule 1.14 clarifies: “In an emergency where the health, safety or a financial interest of a person with seriously diminished capacity is threatened with imminent and irreparable harm, a lawyer may take legal action on behalf of such a person even though the person is unable to establish a client-lawyer relationship or to make or express considered judgments about the matter, when the person or another acting in good faith on that person’s behalf has consulted with the lawyer.” Of course, all this begs the question as to why a non-citizen child should be put into adversarial removal proceedings  in the first place where a hostile government lawyer can sharply cross examine a child, and there are no readily available provisions for the appointment of counsel,  a guardian ad litem or child advocate.

Although the current governmental policy of not providing a child with legal representation in an imperfect immigration court setting constitutes a horrific gap in due process, the presence of a lawyer while an improvement does not necessarily solve the child’s conundrum who is in removal proceedings. Rule 1.14 does not provide an attorney with all the answers, and is far from perfect. The attorney must use the tools provided under Rule 1.14, along with all the other ethical rules, AILA’s Ethics Compendium Module on Rule 1.14   as well as a good dose of judgment and common sense, to find the optimum way to competently represent and protect the vulnerable child.

Cyrus Mehta

Board of Immigration Appeals Provides Safeguards for Asylum Applicant With Mental Competency Issues

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The Board of Immigration Appeal’s decision in Matter of J-R-R-A-, 26 I&N Dec. 609 (BIA 2015) is a milestone decision in protecting an asylum applicant who presented competency issues that were not appropriately assessed by the Immigration Judge. It also untangles the ethical conundrum that a lawyer has when the client is unable to testify credibly due to a cognitive disability.

The respondent in Matter of J-R-R-A- was a native and citizen of Honduras, who claimed that he would be harmed upon his return to Honduras by a man who had murdered his brother 15 years ago. His testimony was characterized as confusing, disjointed and self-serving. He also laughed inappropriately during the hearing. Although the Immigration Judge observed that the respondent’s behavior and testimony were unusual, the BIA found that the respondent’s competency should have been assessed under Matter of M-A-M-,  25 I&N Dec. 474 (BIA 2011). In the landmark Matter of M-A-M- decision, the BIA held that for a respondent to be competent to participate in an immigration proceeding, he or she must have a rational and factual understanding of the nature and object of the proceeding and a reasonable opportunity to exercise the core rights and privileges afforded by the law. As the respondent demonstrated various indicia of incompetence in Matter of J-R-R-A-, the BIA held that the IJ should have taken measures to determine whether the respondent was competent to participate in these proceedings in accordance with the guidelines in Matter of M-A-M-, and remanded the case back to the IJ.

The BIA could have stopped there and it would have still been a good decision, but the BIA went further and acknowledged that the respondent’s testimony was not credible due to the respondent’s diminished capacity, which prevented him from obtaining asylum. The IJ had denied the asylum claim by curtly opining that the respondent’s cognitive difficulties are “not a license to give incredible testimony.” A respondent presenting an asylum claim must establish a well-founded fear of persecution by demonstrating both a genuine subjective fear of persecution and by also  presenting evidence establishing objectively that such a fear is reasonable. See INS.v. Cardoza-Fonseca, 480 U.S. 421 (1987). In light of such a standard, an asylum claimant must present credible testimony in order to establish his or her subjective fear of persecution, supported by objective evidence to establish that the fear is reasonable. A respondent with diminished capacity may not be capable of presenting credible testimony, and as in the case of the respondent in Matter of J-R-R-A-, may be at grave risk of being denied asylum even if he or she has a genuine fear of persecution.

One can also draw important lessons from this decision for the lawyer who represents a client with diminished capacity. A lawyer under the ethical rules of professional conduct cannot “offer evidence that the lawyer knows to be false.” SeeABA Model Rule 3.3(a)(3). Thus, when a lawyer observes a client presenting testimony knowing that it is false, the lawyer is under an ethical obligation to not have the client offer it. If the client has already offered evidence that the lawyer knows is false, under ABA Model Rule 3.3(b), the lawyer is under an ethical duty to take reasonable remedial measures to rectify the fraudulent conduct, and if necessary, disclose it to the tribunal.   ABA Model Rule 1.14 also instructs a lawyer to maintain a normal lawyer-client relationship as far as possible with a client who presents competency issues, and thus all the ethical rules that affect the lawyer-client relationship are applicable even when a lawyer represents a client with diminished capacity, including the lawyer’s duty of candor to the tribunal. Still, Rule 1.14 allows a lawyer to take reasonably protective action when a client with diminished capacity is at risk of harm by either consulting with individuals or entities, and in appropriate cases, seek the appointment of a guardian or guardian ad litem.

The BIA in Matter of J-R-R-A– implicitly recognized the lawyer’s ethical conundrum regarding her duty of candor to the tribunal, but held that a client with diminished capacity should be allowed to provide testimony that may not be believable so long as there is “no deliberate fabrication involved.” In this way, the lawyer may allow the client  to meet the subjective fear prong under the asylum standard even if the testimony is not true, and the IJ should then focus on whether the respondent met his burden of proof based on the objective evidence in the record.  The BIA commendably recognized that “[t]his safeguard will enhance the fairness of the proceedings by foreclosing the possibility that a claim is denied solely on testimony that is unreliable on account of the applicant’s competency issues, rather than any deliberate fabrication.”

When I last blogged on mental competency issues in immigration practice, I noted that this area was a work in progress and there was much work that needs to be done to develop standards and provide clear guidance. Matter of J-R-R-A-  goes a long way in filling this lacuna by recognizing the vulnerability of an asylum claimant with competency issues, and also reconciling the lawyer’s ethical conflict regarding not offering false evidence to a tribunal.  I also commend readers to the ABA’s recent excellent publication entitled Representing Detained Immigration Respondents of Diminished Capacity: Ethical Challenges and Best Practices. Representing clients with mental competency issues in immigration matters presents great challenges as well as amazing rewards. Such clients are indeed the most vulnerable, especially when presenting complex asylum claims in immigration court. The lawyer plays a vital role in ensuring that the client is protected and is provided with the necessary safeguards, and can also gain tremendous satisfaction in being able to assist such a client navigate through the labyrinthine immigration system and emerging victorious.

At a time when politicians in the western world, swayed by public opinion, are showing increasing hostility toward asylum seekers fleeing persecution, and making it harder for them to assert claims that are accorded to them under law, we can only hope that decisions such as Matter of J-R-R-A-  break the mold  and provide necessary safeguards, especially when asylum claimants have diminished capacity. While this decision involved an adult with diminished capacity, minors inherently have diminished capacity, and should be equally protected under Matter of J-R-R-A- especially when they have undertaken hazardous journeys fleeing persecution, and some have also  died tragically in pursuit of freedom. Although only an administrative decision, Matter of J-R-R-A- is a shining example of how law ought to develop and evolve in safeguarding the rights of a vulnerable population fleeing persecution, notwithstanding the political attitudes of the day.

Cyrus Mehta

A WORK IN PROGRESS: MENTAL COMPETENCY ISSUES IN IMMIGRATION PRACTICE

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It is already hard enough for an immigration lawyer to represent a foreign national client in an immigration proceeding, given the language and other cultural barriers, along with the fact that immigration law can be extremely complex and unforgiving. On top of this, an immigration lawyer who represents a foreign national client with mental competency issues faces even greater challenges, including ethical conundrums.

To what extent can a lawyer represent a client who may not even have the capacity to consent or to comprehend the fact that there is a lawyer who can assist him or her? This client may be discovered in immigration custody while in the middle of complex removal proceedings. The lawyer may also encounter a client with mental competency issues who may need to file for immigration benefits such as adjustment of status or naturalization.  This issue has gained even more importance in light of the mandatory appointment of counsel for unrepresented respondents in immigration custody who have mental disorders.

While clients with diminished mental capacity also include children, this blog focuses on the challenges that lawyers face in representing clients with mental disorders. The first breakthrough with respect to the development of safeguards came about in Matter of M-A-M-, 25 I&N Dec. 474 (BIA 2011),  where the Board of Immigration Appeals held that for an alien to be competent to participate in an immigration proceeding, he or she must have a rational and factual understanding of the nature and object of the proceeding and a reasonable opportunity to exercise the core rights and privileges afforded by the law.  The decisive factors are whether the respondent understands the nature and object of the proceedings, can consult with the attorney or representative, and has a reasonable opportunity to examine adverse evidence, present favorable evidence and cross examine government witnesses.  Further guidance relating to Matter of M-A-M- can be found in the excellent practice advisory of the Litigation Action Center.

Subsequently, in Franco-Gonzales v. Holder, No. 10-02211 (C.D. Cal Apr. 23, 2013),  a class action law suit, the court ordered that non-citizen detainees with severe mental disabilities in Arizona, California and Washington be provided qualified legal representatives at government expense in removal and bond proceedings. The court also ordered bond redetermination hearings for those detained more than 180 days. The EOIR on December 13, 2013 issued guidelinesto provide enhanced procedural protection to unrepresented detained respondents with mental disorders. These guidelines are more robust than the principles set forth in Matter of M-AM-, and require an assessment of eight competencies in order to determine whether the respondent is competent to represent him- or herself:

A rational and factual understanding of:

  • The nature and object of the proceeding;
  • The privilege of representation, including but not limited to, the ability to consult with a representative if one is present;
  • The right to present, examine, and object to evidence;
  • The right to cross-examine witnesses; and
  • The right to appeal

A reasonable ability to:

  • Make decisions about asserting and waiving rights;
  • Respond to the allegations and charges in the proceedings; and
  • Present information and respond to questions relevant to eligibility for relief.

If a detained respondent is unable to perform any one of the above functions, then he or she is unable to represent him-or herself. An Immigration Judge is required to detect facts suggesting incompetency, conduct a judicial inquiry, and follow up with a competency review. If the Immigration Judge determines that a respondent is not competent to represent him-or herself, the EOIR may provide a qualified representative who is found to be incompetent to represent him-or herself. While this elaborate process to determine whether a respondent is competent or not is a good first step, one wonders why this process is conducted on behalf of a respondent without the presence of a lawyer. This writer believes that the respondent should have a legal representative earlier in the process, when his or her competency is being evaluated.

Even when a lawyer is appointed by the court to represent a respondent who is not found to be competent, there is a potential for conflict of interest as the appointment will generally only last while the client is detained. If the client is bonded out, the lawyer will no longer be paid by EOIR after the client is released. This creates an ethical dilemma. If the client desperately needs the assistance of a lawyer who is paid by the government, he or she can only be represented by counsel at government expense while in immigration custody.  Would it be in the client’s best interest to be released but not to have appointment counsel, or rather to have appointed counsel while in custody? This might be easier to resolve if the client could make decisions and provide informed consent, but clients with severe mental disabilities might be unable to make informed decisons.

On the other hand, there are no safeguards relating to non-citizens applying for immigration benefits outside a custodial setting. Practitioners representing clients with mental disorders should advocate for the application of the safeguards enunciated in Matter of M-A-M even outside a removal hearing, which include:

–          Legal representation

–          Identification of close friends or family members who can assist

–          Docketing/managing case to give time for legal representation or medical treatment

–          Participation of a guardian in the proceedings

–          Continuance or administrative closure

–          Closing hearing to the public

–          Waiving respondent’s appearance

–          Assistance with development of record

–          Reserving appeal rights

 

Lawyers must also consult ABA Model Rule 1.14, and its analog in a state bar ethics rule, which relates to representing a client with diminished mental capacity. Rule 1.14 instructs a lawyer to maintain a normal lawyer-client relationship as far as possible. Thus, to the extent that an impaired client is capable of making competent decisions, the lawyer must follow them. A lawyer may seek help from a family member or others in communicating with a client with a mental disorder, while at the same time taking into consideration whether the presence of others would affect the attorney-client privilege.

This writer has represented clients for benefits applications, and has found it extremely useful to communicate with the client through trusted family members. A client with a mental disorder may have moments of lucidity, and it is important for the lawyer to ascertain how best to work with such a client through a professional diagnostician. At the benefits interview, counsel must insist that the USCIS generously provide accommodations for a client, including having the presence of a family member during the interview and to only ask the most basic questions, while relying on documentary evidence to determine eligibility for the immigration benefit. Note that 8 CFR 103.2(a)(2) allows a legal guardian to sign a form for a person with mental disabilities.

With respect to applying for naturalization, the law has developed favorably towards persons with disabilities. Applicants who are physically or developmentally disabled, or have mental impairment are exempt from the English as well as civics/history test. Applicants may also seek a waiver of the oath requirement if they are unable to comprehend it. Designated representatives can complete the Form N-400, such as a guardian, surrogate, US citizen spouse, parent, son, daughter or sibling. It is potentially possible for a comatose applicant on a respirator to be able to apply for and obtain US citizenship, and sponsor a qualifying spouse through an I-130 petition, who in turn files his or her own adjustment application for lawful permanent residence.

Rule 1.14 also allows a lawyer to take reasonably protective action when a client is at risk of harm by either consulting with individuals or entities, and in appropriate cases, seek the appointment of a guardian or guardian ad litem. The lawyer may be impliedly authorized to reveal information protected by rule 1.6, but only to the extent reasonably necessary to protect the client’s interests. While resorting to the appointment of a guardian may appear to be an obvious step on behalf of one who is unable to comprehend the nature of the proceedings or consent to the representation, it may also be a traumatic and expensive process, and may undermine the autonomy that the client is required to have under Rule 1.14. The guiding principles, as much as possible, are that the client determines the ends while the lawyer has control over the means.  According to Comment 7 to Model rule 1.14, “In many circumstances, however, appointment of a legal representative may be more expensive or traumatic for the client than circumstances in fact require. Evaluation of such circumstances is a matter entrusted to the professional judgment of the lawyer. In considering alternatives, however, the lawyer should be aware of any law that requires the lawyer to advocate the least restrictive action on behalf of the client.”

To the extent that a client with mental disorders can provide informed consent, the lawyer’s role is made that much easier. The challenge lies with a client who is unable to consent at all. Under these circumstances, should the lawyer still play an activist role and represent the client? Is counsel then always required to seek the appointment of a guardian? Or are there less restrictive alternatives such as seeking the assistance of family members in determining the client’s best interests.   If counsel has been appointed by an immigration judge, how relevant is the client’s incapacity to consent if the lawyer believes it is still in the client’s best interests to have a legal representative? 8 CFR 1292.1(a)(1) &(a)(4) state, without reference to consent, that attorneys are entitled to appear in removal hearings. An attorney can play a crucial role on behalf of a client who is unable to consent.  Indeed, if the goal is for the respondent to remain in the United States (but that may only be assumed if the client is unable to comprehend the nature of the immigration proceeding), the very fact that a respondent may have a mental disorder may prompt an immigration judge to consider granting asylum if the respondent will be removed to a country that is unable or unwilling to protect its citizens with mental disorders. An immigration judge may also grant cancellation of removal pursuant to INA section 240A(b) if the documentation is able to demonstrate eligibility, such as 10 years of physical presence, good moral character and the qualifying relatives, who may be US citizens or permanent residents, are able to demonstrate exceptional and extremely unusual hardship.  There may be times, especially with clients who cannot seek relief, to advocate for administrative closure of the case or even termination. Again, when the client is unable to consent, would administrative closure or termination be in the client’s best interest over being removed from the United States and being with close family members abroad?

There is much work that needs to be done to develop standards and provide clearer guidance.  In the meantime, the lawyer must grapple with emerging standards from the courts and EOIR, as well as interpret Rule 1.14 within the immigration context, although not all states have adopted this rule.  While representing non-citizen clients with mental competency issues can pose additional challenges, obtaining a successful outcome for the client under difficult circumstances can be extremely rewarding to the immigration lawyer.

“The test of our progress is not whether we add to the abundance of those who have much. It is whether we provide enough to those who have little.”

Franklin D. Roosevelt