Abstract: Detained noncitizens experiencing serious intellectual and mental health disabilities are among the most vulnerable immigrant populations in the United States. The Executive Office for Immigration Review’s (EOIR) creation of the National Qualified Representative Program (NQRP) following a class action lawsuit was an important step in finally bringing meaningful protections to this population. The EOIR pledged to ensure government-paid counsel for those facing removal who had been adjudicated “incompetent” by an immigration judge, as well as other protections for those who had been identified as having a “serious mental disorder” but who had not yet been found incompetent. The NQRP is the first of its kind, and the only appointed counsel apparatus in the immigration court system.
The year 2023 will mark the NQRP’s tenth anniversary. While the program has expanded significantly over the past decade and seen an increase in federal funding, it continues to be plagued by serious limitations, gaps, and due process defects. I should know. I ran the program from 2016 to 2018.
Some of the NQRP’s failings are embedded in the program’s architecture and have therefore existed since its inception; other inequities flow from the evolution of the NQRP over time, and in particular, the development of its two-tiered system of classification of detained noncitizens within the Ninth Circuit, versus those outside of it. The program’s deficiencies impact the due process rights—and safety—of the incompetent respondents the program pledged to safeguard; they also force many legal service providers to make ethically fraught choices as they navigate representation of their clients. And finally, the NQRP’s shortcomings reduce judicial economy and inadvertently create an unequal administration of justice within our immigration courts.
In this article, I closely examine data, training material, and federal contract information obtained through two Freedom of Information Act Requests to expose critical distinctions between Franco and the Nationwide Policy. I then explain why the differences matter, and what consequences flow to respondents, their attorneys, and the immigration courts.
Finally, I make several recommendations for how to resolve the NQRP’s inequities and weaknesses. The first set of recommendations can be implemented now as EOIR enters into a new federal contractor relationship for management of the NQRP’s nationwide operations. The second set can be instituted at any time, as they are internal EOIR policy decisions that do not require Congressional approval.