Incompetent but Deportable: The Case for a Right to Mental Competence in Removal Proceedings

Important strides are currently being made towards increasing procedural due process protections for noncitizens with serious mental disabilities in removal proceedings, such as providing them with competency hearings and appointed counsel. This Article goes even further, arguing that courts should recognize a substantive due process right to competence in removal proceedings, which would prevent those found incompetent from being deported. Recognizing a right to competence in a quasi-criminal proceeding like removal would not be unprecedented, as most states already recognize this right in juvenile adjudication proceedings. The Article demonstrates that the same reasons underlying the prohibition against trial of incompetent defendants apply to removal proceedings. Competence is necessary to protect the fairness and accuracy of the proceedings, safeguard statutory and constitutional rights, uphold the prohibition against in absentia hearings, and preserve the moral dignity of the process. In addition, deportation represents an extension of the penalty phase of the criminal process, so the right to competence should apply until the end. This Article also explores potential concerns about recognizing a right to competence, such as exposing the respondent to indefinite civil commitment and forfeiting the opportunity to pursue applications that could lead to being granted legal status by the immigration court. A closer examination of these concerns suggests that they may actually be much less serious than they initially appear. Finally, the Article explores some alternatives to recognizing a right to competence and explains why they fail to provide sufficient protection.