Risk of Persecution Because of Severe Mental Illness as a Basis for Withholding of Removal
In Francois v. Garland, 120 F.4th 459 (5th Cir. 2024), the Fifth Circuit Court of Appeals reviewed a petition from Alex Francois, an undocumented Haitian national with severe mental illness, who alleged that the Board of Immigration Appeals (BIA) violated his right to due process. An immigration judge (IJ) initially granted Mr. Francois withholding of removal, a form of relief from deportation, citing that he would likely be persecuted and tortured in Haiti because of his mental illness. After BIA review, the IJ reversed its decision and Mr. Francois ultimately appealed to the appellate court. Upon review of the case, the court found Mr. Francois’s due process rights were violated because the BIA applied an incorrect standard of review that ultimately affected the outcome of the case. The court ruled that the BIA’s error led the IJ to reverse its decision and deny withholding of removal. Because of the violation of due process, the court vacated the BIA’s orders and remanded the case back to the BIA to review under the correct standard.
Facts of the Case
Alex Francois was an undocumented Haitian national who had lived in the United States since 1979. He was diagnosed with schizophrenia, psychotic disorder, and bipolar disorder, for which he was hospitalized at least five times since 2011. His symptoms included “psychosis, delusions, engaging in self-talk, laughing to himself, and ‘bizarre’ behavior, such as drinking his own urine and eating grass” (Francois, p 462). He had several encounters with law enforcement, many of which were attributed to his mental illness. Following his arrest for trespassing in Bell County, Texas in April 2017, he was found incompetent to stand trial (IST) and subsequently admitted to Austin State Hospital for three months to undergo intensive psychiatric treatment. Mr. Francois was then transferred to the custody of U.S. Immigration and Customs Enforcement (ICE) in January 2018, where he was charged with removability for unlawful entry.
In July 2018, Mr. Francois represented himself in court and conceded that he was removable as charged. He later obtained legal counsel, and after his attorney requested a competency hearing, Mr. Francois was found IST. He subsequently applied for asylum, withholding of removal, and protection under the Convention Against Torture (CAT). Mr. Francois’s application was supported by two documents: a 48-page report provided by an expert who had 11 years’ experience with criminal deportees in Haitian prisons; and documents detailing the current state of mental health treatment in Haiti. The expert stated in her report that Haitian society and authorities “do not understand mental illness well and continue to think that it is related to witchcraft and contagion” (Francois, p 462). She reported that people with mental illness are seen as a discrete group known as “moun fou,” meaning crazy people in Haitian Creole. She also stated that police and prison officers use harsh and repressive measures to contain detainees with mental illnesses through means such as physical violence, torture, isolation, and confining them in very small spaces. Based on these conditions and Mr. Francois’s mental illness, the expert opined that he would likely be subject to harsher treatment at a level that would amount to torture and persecution. Additionally, evidence was provided that showed the severe lack of mental health treatment in Haiti and the “abysmal conditions” of the hospitals and prisons.
On April 22, 2019, affording “great evidentiary weight” to the expert report, the IJ denied Mr. Francois’s request for asylum but granted withholding of removal. The IJ found Mr. Francois’s mental health would likely deteriorate because of the lack of adequate mental health services in Haiti. The IJ also concluded that Mr. Francois would likely attract the attention of Haitian authorities, given his history of erratic behaviors, and was “more likely than not to be institutionalized in a government-run prison or psychiatric facility where he would be subject to abuse and mistreatment amounting to persecution” (Francois, p 466). The government appealed the IJ's decision to the BIA, who decided to reverse and remand the case to the lower court for “further factfinding.” Once remanded, the IJ reversed its previous decision and denied Mr. Francois’s claims for withholding of removal. Mr. Francois appealed this new decision to the BIA twice and was denied both times because of the BIA finding “no clear error.” He then filed a petition for judicial review to the Fifth Circuit Court of Appeals arguing that the BIA had applied an incorrect standard of review, in violation of its regulations, and ultimately deprived him of his due process rights.
Rule and Reasoning
The Fifth Amendment of the U.S. Constitution provides noncitizens with the right to due process. The court of appeals stated they had the authority to review decisions made by the BIA as it pertains to violation of due process rights.
The court reasoned that, to establish a due process violation, Mr. Francois needed to show that the BIA had made an error in violation of its regulations and that the error affected the outcome of his case. Upon review, the court determined that the BIA inappropriately remanded the case for factual findings that the IJ had already provided. In doing so, the BIA “shirked its duty by ignoring the IJ’s relevant findings” (Francois, p 466) and violated its regulations. The court also determined that the BIA’s actions led to the IJ “reversing course and denying relief” (Francois, p 466). This change directly affected the outcome of the case and was considered substantial prejudice. Satisfying both requirements, the court held that the BIA violated Mr. Francois’s due process rights. The court granted Mr. Francois’s petition, vacated the BIA’s orders, and remanded the case for the BIA to review the IJ’s initial decision on April 22, 2019, under the proper standards of review.
Discussion
The majority of respondents facing removal charges represent themselves because legal representation is not a constitutional right that is afforded to respondents in immigration proceedings. In 2011, the BIA decided in the Matter of M-A-M, 25 I&N Dec. 474 (BIA 2011) that respondents may be provided legal representation as a safeguard if they are found IST. M-A-M also places the responsibility on the IJ to identify potentially incompetent respondents.
Researchers have raised concerns about the increased responsibility of the IJ to make competency determinations without the consultation of a mental health professional, as it may compromise the rights and protections afforded to mentally ill and incompetent respondents in removal proceedings (Tazi K, Rogers R, Chang YT. 2023. Forensic evaluations for immigration courts: A critical commentary on legal and ethics considerations. Psychol Inj & L. 16:303–19). In this case, Mr. Francois was presumed competent to stand trial and represented himself when he conceded to his charge. The IJ did not suspect he was IST and therefore allowed him to self-represent. Without legal representation, Mr. Francois would have likely found it challenging to obtain the necessary evidence required to apply for relief because of his severe mental illness and thus would likely have been subject to removal from the United States after conceding his charge. This case highlights that some mentally incompetent respondents might not be identified and therefore fail to receive the legal protections necessary for a fair trial. Implementing procedures that allow IJs to consult with mental health providers, or providing IJs with supplemental training on how to identify potentially incompetent respondents, may serve to decrease the risk of failing to recognize individuals who are IST.
To apply for either asylum or withholding of removal, Mr. Francois had the burden of proving that he was at risk for persecution based on race, religion, nationality, membership in a particular social group, or political opinion. In this case, Mr. Francois’s history of mental illness, along with an expert’s opinion on the treatment of individuals in Haiti, was the basis for him being granted withholding of removal. Mr. Francois argued that he was at risk of persecution because of his severe mental illness, for which he claimed he was a member of a particular social group, moun fou, who are known to be tortured by Haitian authorities. Therefore, a mental health evaluation is often crucial to a respondent’s case. But because mental health symptoms can appear differently across cultures, evaluators may find it challenging to provide accurate assessments. Thus, as in the Tazi et al. article, in addition to following guidelines informing practice, evaluators should consider the influence of cultural factors and strive to maintain cultural humility and sensitivity to address this problem.
- © 2026 American Academy of Psychiatry and the Law
