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The Mentally Incapable and Political Asylum; By Danielle Beach-Oswald

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Although it has long been established that immigrants have a right to legal counsel without any cost imposed on the government, the situation for one detained immigrant in York, Pennsylvania shows that it's time for the government to do much more to help those with mental health problems seek political asylum in the United States.

Matter of M-A-M, decided by the Board of Immigration Appeals in May 2011, stated that aliens in immigration proceedings are presumed to be competent if there is no indicia of incompetency.

To determine competency, an individual must be able to have a rational and factual understanding of the nature and object of the proceedings and must be able to participate in his defense. When the Judge finds an indicia of incompetency, the immigration Judge must make further inquiry to determine whether he or she is competent for the purposes of immigration proceedings. If it is determined that the alien lacks sufficient competency to proceed, the immigration judge must evaluate " appropriate safeguards". Clearly, the terminology here allows for tremendous discretion, but something must be done rather than inaction.

An Associated Press Article on October 17th detailed the story of Derrick Cotterel. Mr. Cotterel, a Jamaican national, worked in agriculture for 10 years. Following a pay dispute with his employer, Mr. Cotterel was arrested and it was determined that he had overstayed his original visa. Judges in the York Immigration Court attempted to understand his case for political asylum, but given his severe language problems stemming from mental health issues, he faced tremendous difficulties in his case for political asylum. Although his asylum was eventually denied, it is now on appeal with the help of ACLU. Lawyers working on his appeal are making every effort to make sure that he receives the appropriate assistance, including a speech and language professional, to help him in his communications with the court. The Associated Press also noted how the ACLU is seeking a class action lawsuit in California to guarantee access to attorneys for mentally-ill detained immigrants in California.

A few months ago, I recently represented a client before the Baltimore Immigration Court that also faced mental problems. It was clear that his language difficulties of my client, like that of Mr. Cotterel, would have made it impossible for him to seek political asylum. However, through persistent efforts and the assistance of mental health experts who showed he had developed severe Alzheimer's Disease,I was able to get the Immigration Judge to agree to conduct a competency hearing despite the government's objection. In this case it was also not clear that any nexus existed between his memory issues at present and the his past persecution. After a competency hearing, the Judge determined that my client would not have to testify at his immigration hearing due to incompetency under Matter of M-A-M and thankfully he was granted political asylum.

But for people like Mr. Cotterel, the government must take action as he was unrepresented by counsel. The mentally ill victims of persecution are especially vulnerable if forced to return to their native countries. Those that are detained in criminal proceedings have access to mental health professionals that are able to make a determination that directly impacts their criminal trial. Despite Mr. Cotterel being in a detention center shared with alleged criminals, he was unable to receive access to mental health professionals that would have helped him in his bid for political asylum. The ACLU's efforts in California to gain access to attorneys for all mentally-ill detained immigrants is to be applauded, but more must be done.

Mentally-ill detained immigrants should have access to not only attorneys, but also mental health professionals. This should be provided by the government in order to maintain a modicum of fairness. Otherwise, the mentally-ill victims of torture will face increasing hurdles with little hope of relief.

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