In criminal law, an individual must be deemed competent to stand trial, yet our immigration courts routinely order the deportation of incompetent noncitizens. A removal proceeding against a noncitizen—where an outcome of deportation often risks life-threatening harm—continues apace even if the noncitizen has been deemed incompetent by the immigration judge. In place of halting proceedings, the immigration judge imposes “safeguards” pursuant to a provision of the immigration code that neither defines nor explains the term. In practice, judges’ application of the term “safeguards” is often absurd. The implications of continuing a proceeding against a noncitizen with a disability affecting competency are significant. Unlike criminal defendants, noncitizens facing removal carry the burden for much of the proceeding, so their participation and understanding is critical to having a fair shot. Yet noncitizens are routinely ordered deported even though they do not understand or meaningfully participate in removal proceedings.
By unifying a small but rich body of literature from immigration, disability, and criminal competency scholarship and cases, this Article closes a gap in understanding how the machinations of the immigration legal system result in the removal of noncitizens whose disabilities render them incompetent. It takes stock of the immigration agency’s failure to answer foundational questions about how its competency framework should work. This shortcoming results in what I call “safeguards theater,” in which the immigration courts push proceedings forward despite clear indications the noncitizen did not understand.
In place of the current practice, this Article instead argues for the application of disability law. Federal disability law guarantees a person with a disability meaningful access to immigration court, so a removal proceeding after a competency determination must be accessible to the noncitizen. This Article’s proposal would curtail the immigration courts’ reliance on safeguards theater and allow noncitizens meaningful judicial review of competency issues. Finally, the Article questions whether a person with a disability affecting competency should undergo removal proceedings at all.