A glimpse at competency to proceed evaluations for immigration court proceedings

Abstract

Objective: While competency to proceed (CTP) has been clearly defined in criminal courts since 1960, it remains a relatively novel concept in immigration court (IC). In 2011, the Executive Office for Immigration Review issued a decision that IC Judges must take measures to determine whether an immigrant is CTP if there are indicia of incompetency. If incompetent, the case may continue provided there are procedural safeguards to ensure due process. Unlike criminal court, IC respondents are not provided government-funded counsel. Instead, they proceed self-represented unless they obtain an attorney through personal means, are represented pro bono, or are provided one secondary to being adjudicated incompetent to proceed. Given the potential consequences of deportation and the lack of representation for many immigrants in removal proceedings, it is imperative that mental health professionals conduct quality competence evaluations.

Hypotheses: We did not have any a priori hypotheses as this study is descriptive in nature.

Method: The present study utilized deidentified data from 41 CTP reports in IC and coded for 54 variables related to respondent, report, and evaluation characteristics, and psycholegal opinions; all reports were double coded.

Results: Our sample comprised respondents from 13 different countries. Results indicate CTP evaluations for IC are of highly variable quality, and many do not meet the minimum requirements as delineated in the Executive Office for Immigration Review guidelines. Only 15 reports (36.6%) fully addressed all aspects of the competency standard. Against good forensic practice, 56.1% (n = 23) of reports included prejudicial statements regarding the respondent.

Conclusions: Our research highlights legal distinctions between CTP in criminal court and IC, the need for improved training for evaluators in IC, and the necessity for this topic to be taught in forensic programs nationally. We finish by providing recommendations for evaluators conducting CTP evaluations for IC. (PsycInfo Database Record (c) 2026 APA, all rights reserved).