No Restoration, No Rehabilitation: Shadow Detention of Mentally Incompetent Noncitizens
42 Pages Posted: 8 Jun 2018
Date Written: 2017
This article examines the burgeoning mental competency regime in immigration removal proceedings, as well as its shortcomings. While some strides have been made in the last six years to identify noncitizen detainees who are incompetent, and to implement safeguards, including appointed counsel, to protect their rights, the current mental competency framework fails to protect some of the most vulnerable. Specifically, this article explains that mentally incompetent, noncitizen detainees for whom no adequate safeguards are available, face a kind of shadow, prolonged and potentially indefinite detention. These detainees’ continued detention is wholly without process – despite their incompetence, they are not provided with meaningful opportunities to request release from custody to seek treatment, nor are there any concerted efforts to either restore or rehabilitate their competency. As a result, I argue that this group of noncitizen detainees is denied meaningful access to the court system in violation of Section 504 of the Rehabilitation Act. This article proposes a regulatory change to ensure compliance with the Rehabilitation Act and further explores why alternative solutions are unreliable, inefficient or implausible.
Keywords: mental illness, mental incompetency, competency, immigration, detention, immigration detention, deportation, removal proceedings, safeguards, Rehabilitation Act.
JEL Classification: K
Suggested Citation: Suggested Citation