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Villanova University School of Law




At present, Immigration and Customs Enforcement (ICE) detains 34,000 noncitizens on any given day. This number is expected to grow substantially, as President Trump has made immigration enforcement, detention, and deportation a cornerstone of his campaign and presidency. Indeed, one of President Trump’s first actions as President was to announce vastly expanded enforcement efforts. With increased enforcement, detention, and deportation, the rights of the most vulnerable—in particular the mentally ill and incompetent—will only be further jeopardized. In fiscal year 2015, ICE recorded 90,276 “mental health interventions” for immigrant detainees in ICE custody. This is a staggering 64% increase in mental health interventions since fiscal year 2012. There is no doubt that noncitizens in immigration detention are suffering from mental illness and incompetency at significant numbers. And more than that, it is well documented that prolonged detention, and even short-term incarceration, has a negative, long-term impact on the psychological wellbeing of migrants. Fortunately, the last five years has heralded a shift—and indeed, significant advancement—in how the rights of mentally ill and incompetent noncitizens are protected. The Board of Immigration Appeals and federal district courts are increasingly recognizing that extra procedural protections and safeguards must be put in place to ensure that the fundamental fairness of removal proceedings remains intact, even when noncitizens are mentally ill or incompetent. Scholars, similarly, are increasingly engaged in a conversation about what additional rights and protections are needed to ensure fairness in removal proceedings for these uniquely vulnerable noncitizens and detainees. And yet, challenges persist.



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