Noncitizens Entitled to Procedural Safeguards for Competency Inquiries in Immigration Proceedings
In Reid v. Garland, 120 F.4th 1127 (2d Cir. 2024), the U.S. Court of Appeals for the Second Circuit reviewed the Board of Immigration Appeals’s (BIA) decision affirming an immigration judge’s (IJ) order on Everod Reid’s noncitizen competency, directing the removal of Mr. Reid and denying his applications for a waiver of inadmissibility under a former section of the Immigration and Nationality Act (INA). The Second Circuit found that the IJ improperly applied the framework for protecting the rights of incompetent noncitizens and said that the IJ must make a specific finding of competency.
Facts of the Case
Mr. Reid, a Jamaican national, applied for an inadmissibility waiver in 1997 under the former INA § 212(c) (1997), which permitted noncitizens eligible for removal who had sustained lawful permanent residency to apply for relief. In 1995, the United States Immigration and Naturalization Service (INS), which was later dissolved and its functions transferred to the Department of Homeland Security, began deportation proceedings against Mr. Reid because of past criminal convictions. Deportation proceedings and Mr. Reid’s petition were paused because of a 2000 drug conviction. After his release, an IJ deemed his waiver application ineligible, which was affirmed by the BIA. Mr. Reid continued to challenge the proceedings, and a new hearing scheduled for 2013 was adjourned multiple times until 2019.
In 2019, an IJ scheduled a M-A-M- hearing (referring to a legal procedure to determine mental competency to participate in immigration proceeding based on the case Matter of M-A-M-, 25 I&N Dec. 474 (BIA 2011)) after Mr. Reid’s counsel raised concerns about his competence to participate in the proceedings. Mr. Reid asserted that he was not competent because his mental illness prevented him from consulting with his counsel or assisting in his defense. At the M-A-M- hearing, a clinical psychologist testified that she diagnosed Mr. Reid with schizophrenia in 2019. She reported that he experienced command auditory hallucinations, which tell him “who and who not to trust” (Reid, p 1136) and that he believed that “all [c]ourt personnel are in cahoots with each other and are ultimately conspiring against him” (Reid, p 1137). Records suggested that Mr. Reid had experienced these symptoms for “decades” and had not participated in psychiatric services, including medications, because of distrust of mental health professionals.
Following the hearing, the IJ provided an oral determination that she was “concerned about [Reid’s] competency as it pertains to the attorney-client relationship” and said that she would “find[] ways to …work around that” (Reid, p 1137). The IJ did not issue a formal finding regarding Mr. Reid’s competency and did not articulate which safeguards she was considering or the rationale for using them.
During Mr. Reid’s hearing in November 2019, the IJ implemented certain safeguards, including not requiring him to testify and having his counsel present. In January 2020, the IJ denied Mr. Reid’s application and authorized his deportation. When the case was reviewed by the BIA, they acknowledged failure to make a sufficient competency determination. But the BIA stated that the safeguards implemented by the IJ were “sufficient” and affirmed the decision. The case was sent to the Second Circuit for review.
Ruling and Reasoning
The Second Circuit granted Mr. Reid’s petition for review, vacated the BIA’s decision, and remanded the case with instructions to reevaluate his competency and consider appropriate safeguards if needed. In its decision, the court interpreted a rigorous procedural framework from Matter of M-A-M-, the INA, and the Fifth Amendment Due Process Clause. In so doing, it held that an IJ is obligated to fulfill the following to protect noncitizens who may be incompetent: make a finding of the noncitizen’s incompetency; sufficiently articulate the character, scope, and severity of the noncitizen’s incompetency; implement safeguards that address the noncitizen’s incompetency; and address how and why such safeguards will protect a noncitizen’s rights and privileges.
The court of appeals determined the IJ improperly applied the Matter of M-A-M- framework in various ways. The court found that the IJ failed to make a finding of competency. The IJ issued “sort of a formal finding” and specifically stated she was “not going to make a formal finding [] as to overall competency because …I don’t know that there needs to be [one]” (Reid, p 1137). In contrast, the court of appeals noted that a finding of competency needed to be clear and specific. The court also commented on the IJ’s failure to render a sufficient analysis of competency. The IJ only established that Mr. Reid’s counsel was unable to “establish an attorney-client relationship” (Reid, p 1137) needed to fully present the case, but did not describe the character, scope, and severity of incompetency.
The court also addressed the IJ’s failure to articulate how safeguards could protect noncitizens rights. The IJ did not describe how and why the safeguards could “work around” the limitations imposed by Mr. Reid’s schizophrenia. Rather, the IJ stated that “the safeguards would be the same” (Reid, p 1137), regardless of findings related to competency, and the IJ merely concluded without justification that Mr. Reid’s due process rights were protected by adequate safeguards. Finally, the court addressed the IJ’s failure to implement adequate safeguards to protect noncitizens’s rights. The IJ implemented five safeguards but did not address how these safeguards protected his due process rights. The court of appeals noted that Mr. Reid’s psychologist and social workers suggested that continued treatment could allow Mr. Reid to recover some measure of competency, allowing him to better participate in his hearing. Plausible safeguards not considered by the IJ included a continuance or administrative closure to restore or improve Mr. Reid’s competence.
The court also determined that Mr. Reid was prejudiced based on the IJ’s denial of his Section 212(c) claim stemming from the inadequate safeguards, which represent a defect in deportation proceedings that “may well have resulted in a deportation that would not otherwise have occurred” (Reid, p 1147, quoting United States v. Fernandez-Antonia, 278 F.3d 150 (2d Cir. 2002), p 159). The court additionally established the need for the IJ to reevaluate Mr. Reid’s competency and consider necessary safeguards if incompetent. The court noted that incompetency is not a “static” condition and that assessment is an ongoing process.
Discussion
In Reid, the Second Circuit considered the denial of an inadmissibility waiver under the Fifth Amendment Due Process Clause. The court remanded the case, stating that the IJ improperly applied the framework for protecting the rights of incompetent noncitizens. Mr. Reid’s mental illness and testimony provided by mental health professionals played a fundamental role in the case, highlighting the importance of a forensic psychiatrist’s familiarity with immigration proceedings. Moreover, due process protections under the Fifth and Fourteenth Amendments apply to all persons present in the United States, regardless of legal status. Although the due process protections of noncitizens are under the purview of the judge, awareness of such rights and how they are (or are not) being safeguarded may affect the role of the forensic psychiatrist’s testimony.
This case also underlines the differences between civil and criminal proceedings when there are concerns about competency. Unlike criminal proceedings, incompetency in immigration cases, a civil proceeding, does not halt the case so long as safeguards have been implemented to protect the individual’s rights as required by the Due Process Clause and the INA.
Part of the role of a forensic psychiatrist involves providing education on these matters in various settings. Emanuel Tanay argued that the expert witness is “not only a source of scientific information, but also a vehicle to make this scientific information intelligible to the court” (Tanay E. Forensic psychiatry as a vehicle for teaching clinical psychiatry. Bull Am Acad Psychiatry Law. 1974; 2(4):242–5). In cases like Mr. Reid’s, there may be opportunities for the forensic psychiatrist to clarify important medicolegal concepts to the court. Although the judge makes legal determinations about competency, the forensic psychiatrist can provide a framework for the judge to appropriately render a sufficient analysis to determine competency and implement appropriate safeguards.
The U.S. immigration system is complex and evolving, and immigration reform remains a political concern and societal flashpoint. In immigration cases involving mental illness, as in Reid, forensic psychiatrists may be asked to conduct psychiatric evaluations of noncitizens. Forensic psychiatrists must be familiar with the unique stressors someone may encounter at various stages of the migration journey and the impact these stressors may have on the risk of developing mental illness. Although Reid was not an asylum case, the court’s ruling may have broader implications for future cases involving asylee evaluations. When working with individuals seeking asylum, forensic psychiatrists are “often tasked with evaluating and developing a cohesive trauma narrative” to be useful to the courts (Franks A, Ali DA, Adi A. Clinical and legal considerations when optimizing trauma narratives in immigration law evaluations. J Am Acad Psychiatry Law. 2024; 52(4):449–59). They may also play a vital role in ensuring individuals are afforded their due process rights by judges tasked with making these determinations in immigration proceedings.
- © 2025 American Academy of Psychiatry and the Law
