Abstract
In recent years, the Executive Office for Immigration Review (EOIR), the office of the U.S. Department of Justice (DOJ) responsible for adjudicating immigration cases, has increasingly relied on the use of video teleconferencing (VTC) in immigration court proceedings, as opposed to in-person court appearances. Citing VTC as an efficient and effective way to conduct hearings and manage its large docket backlog, EOIR has installed VTC units at its headquarters and at nearly all immigration courts, and the agency’s use of VTC has risen exponentially under the Trump Administration. Yet, VTC has been proven to harm immigration judges’ abilities to assess respondents’ credibility, body language, demeanor, and nonverbal communication cues. These issues are compounded for detainees suffering from serious mental conditions, such as major depression, schizophrenia, bipolar disorder, obsessive-compulsive disorder, panic disorder, post-traumatic stress disorder, and borderline personality disorder, among others. Not only do respondents with these conditions have difficulty testifying and understanding the nature of their proceedings, but it is also more difficult for judges to recognize respondents’ mental disabilities over video than it is to recognize them in person. The potential consequences of these failures are extreme, as studies have shown that many mentally impaired detainees are often unfairly deported, a mistake that can lead to a possible death sentence for those deported back to countries with rampant violence or without adequate legal and medical safeguards to aid in treating and managing their mental conditions.
This Comment examines the legality of the use of VTC in removal proceedings for detainees whom immigration judges, following a competency hearing called a Matter of M-A-M- proceeding, declare mentally incompetent by reason of their mental impairments. Since the 2013 landmark decision in Franco-Gonzalez v. Holder, immigrants in removal proceedings found to be incompetent due to mental disabilities have been entitled to a qualified representative, or an appointed attorney, as a reasonable accommodation under section 504 of the Rehabilitation Act. This Comment extends the rationale in Franco-Gonzalez to argue that in-person court appearances be presumptively mandated as a reasonable accommodation under section 504 of the Rehabilitation Act for mentally incompetent detainees.
Per the requirements of a prima facie case under section 504, this Comment shows that (1) mentally incompetent detainees appearing via VTC qualify as persons with disabilities within the meaning of the Rehabilitation Act; (2) they are otherwise qualified for the benefit or services they seek from the government agency; (3) they are denied full participation in their proceedings and meaningful access to the benefit or services sought because of their disabilities when forced to appear via VTC as opposed to in person; and (4) EOIR, the agency providing the benefit, is a federal executive agency under the umbrella of the DOJ and to which section 504 applies. Given that all four elements of a section 504 prima facie case are met when mentally incompetent detainees are required to appear via VTC for their hearings, in-person court appearances should be presumptively mandated as a reasonable accommodation. This accommodation will therefore give mentally incompetent detainees the chance to effectively argue their cases and meaningfully participate in their removal proceedings unhindered by the inherent difficulties of appearing through a screen.
