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2L wins precedent-setting immigration ruling

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May 6, 2011 - A second-year student in the Law Center’s Immigration Clinic has won a precedent-setting decision that will affect thousands of deportation competency cases across the nation. Andrea Penedo drafted the brief presented to the Board of Immigration Appeals under the watchful eye of Clinic Supervising Attorney Janet B. Beck.

Immigration Clinic Supervising Attorney Janet B. Beck and second-year student Andrea Penedo look over a sweeping order dealing with competency procedures that the two won from the Board of Immigration.

Immigration Clinic Supervising Attorney Janet B. Beck and second-year student Andrea Penedo look over a sweeping order dealing with competency procedures that the two won from the Board of Immigration.

In response to Penedo’s argument, the Board for the first time outlined stringent requirements that must be met in determining whether a person is mentally competent to face deportation proceedings. Chief among these provisions is a requirement that attorneys for the U.S. Department of Homeland Security provide all material related to the person’s mental capacity. Previously, any such records, including treatment and evaluations while in detention, were not being provided if requested by the detainee or their counsel. Geoffrey A. Hoffman, clinical associate professor and faculty supervisor of the Immigration Clinic, said few immigrants can afford psychiatric exams or witnesses which left them without any backing for claims of mental incompetence. Lacking documentation, Hoffman said Immigration Judges routinely find the immigrant competent. The May 3 order requires judges “make further inquiry,” -- in effect, a mental evaluation -- if there are indications of incompetence. In addition to other mandatory steps, the order also requires judges to explain his or her decision. While there were previous guidelines for determining competence, procedures were rarely followed, Hoffman said.

The Clinic’s case involved a Jamaican citizen who came to the U.S. in 1971 at the age of 10 and had lived in New York as a lawful permanent resident. He had been convicted of drug charges and also had been   diagnosed and treated for schizophrenia. At one time he was judged criminally insane by the state of New York. In deportation hearings before various judges and with different appointed attorneys, questions of his mental capacity were raised. The BIA decision notes he appeared disoriented and failed to answer simple questions. He represented himself in his final hearing and, according to the BIA order, when asked by the Immigration Judge if he was able to proceed, he responded that he “believed so” and “would do the best he could.” The judge did not ask about medical records and did not explicitly rule on his competency before ordering deportation proceedings to go forward. She denied his asylum petition in which he claimed he would be persecuted in Jamaica because of his mental state.  After considering Penedo’s brief, the BIA remanded the case to the Immigration Judge. “We would like to handle the appeal,” Beck said of the rehearing, “because this is our case.”

Hoffman said the BIA order is extremely rare since the Board only publishes 10 or so orders a year and generally only when they set precedent. The sweeping order takes immediate effect.  “Every single immigration court is bound by this order,” he said, adding that the DHS could appeal to Attorney General Eric Holder, but he considers that unlikely. The real question, he said, is whether Immigration Judges will fully comply with the ruling or whether it will eventually end up in federal court.

Penedo is on a winning streak, having won an asylum case in January while working in the clinic. She also has written an article on the competency case that will be published in the Houston Journal of Health Law and Policy.  Penedo also was named this week as an Albert Schweitzer Fellow and will spend the next year working with local high school students and attorneys to teach students about health law issues and their legal health rights. She plans to practice immigration law after graduation.

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