Immigration regs raise implementation concerns

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June 3, 2011 – An Immigration Court judge told participants in a day-long workshop at the Law Center Friday that stringent new regulations for determining competency in deportation proceedings will be “tricky” to implement. The Board of Immigration Appeals decision was won recently by a Law Center Immigration Clinic student and supervising attorney.

 “As the father of a son who suffers from bipolar disorder, I am especially familiar with and sensitive to psychiatric conditions,” said Judge Howard Rose. “Above all, I am looking out for the safety of the population of the United States,” he said after noting that implementing the new regulations will be a tricky road to navigate. The new guidelines are only the beginning, he said.  While they set stringent requirements for judges to follow, there is a fine line between where the attorney's role ends and the judge's role begins especially in regards to acquiring medical records. Counsel has to navigate around HIPPA's privacy rules, he said. And, even when a person is proven mentally incompetent, he asked, how will that affect the deportation hearing? Lawyers also need to present a viable treatment plan for their clients, Rose added.

More than 60 attorneys and industry professionals attended the presentation and workshop exploring two aspects of immigration law – representing immigrants with mental disabilities and developing the tools and techniques needed in asylum cases.

The morning session kicked off with an examination of the findings and recommendations of a study, “Deportation by Default.” Compiled by Texas Appleseed, a public interest law center, and the firm of Akin Gump Strauss Hauer & Feld LLP, the report documents cases of non-citizens who could not understand questions, were delusional, couldn't tell the date or time, and didn't understand the concept of deportation, “saying, for example, they wanted to be deported to Louisiana,” said Lisa Graybill, legal director of the ACLU of Texas.

The session focused on the impact and ramifications of the precedential BIA decision that will affect thousands of deportation competency cases across the nation. The case was successfully litigated on appeal by UH Immigration Clinic Supervising Attorney Janet B. Beck and second-year law student Andrea Penedo.

“For the first time, the board articulates stringent requirements which must be followed by all immigration judges in determining competency issues in regards to deportation proceedings,” said Geoffrey A. Hoffman, clinical associate professor and director of the Immigration Clinic. However, it remains to be seen, he continued, whether immigration judges will fully comply and implement the new guidelines.

The program presented the opportunity to discuss the decision’s immediate, nation-wide effect as well as its practical implications. The presentation included the viewpoints of a psychologist, an attorney, and an immigration judge. “In order to address the various intricacies involved in handling immigration proceedings in which a mental disability is a factor, we wanted to touch on as many viewpoints as possible,” Hoffman said.

The afternoon session was the annual Joseph A. Vail Asylum Workshop held in honor of the late Law Center professor who founded the school’s Immigration Clinic and helped countless immigrants. The workshop included presentations and panel discussions to provide attorneys with the skills needed to represent asylum applicants before the Houston Asylum Office and EOIR-Immigration Court. The panel consisted of representatives from the Office of Chief Counsel, Department of Homeland Security, the Asylum Unit, and all previous presenters.

Among the day’s highlights was a mock hearing and examination that illustrated issues that may come up when testifying as an expert witness on an asylum case before the immigration court. Hosted by the Law Center’s Immigration Clinic, the Cabrini Center of Catholic Charities of Galveston-Houston, and YMCA International Services, the workshop also offered litigation tips and updates on the law.

Co-sponsored by the Immigration Coalition of Houston, the day’s two-part event offered CLE credit for each session.

Lisa Graybill, Janet Beck, and Geoffrey A. Hoffman Immigration Court Judge Howard Rose

Lisa Graybill, legal director of the ACLU of Texas, left, Janet Beck, UH Law Center Immigration Clinic supervising attorney, and Geoffrey A. Hoffman, clinical associate professor and faculty supervisor of the clinic, field questions from the audience as part of an all-day program on immigration.

Immigration Court Judge Howard Rose says it will be “tricky” to implement new competency regulations that were won by a Law Center student and Immigration Clinic supervising attorney.

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