Introduction: Matter of J-S-S-
The Board of Immigration Appeals (BIA) issued an important decision in Matter of J-S-S- [PDF version] on November 2, 2015.1 The decision addressed the following question: Who has the formal burden of proof in immigration proceedings to establish whether the alien (respondent) is mentally competent when indicia of incompetency are identified? In plain English: If there is evidence suggesting that a respondent in immigration proceedings is mentally incompetent, who has the burden to determine whether the respondent is mentally competent?
The BIA held that neither the DHS nor the respondent has the “formal burden of proof” in establishing whether the respondent in immigration proceedings is mentally competent (where indicia of mental incompetence are identified). Rather, the BIA held that when indicia of mental incompetence are identified, the Immigration Judge should determine if the preponderance (weight) of the evidence establishes that the respondent is mentally competent.
In this article, I will explain the issues at play, the BIA's analysis, and the practical effects of the decision.
Facts of the Case
The respondent in Matter of J-S-S- [PDF version] is a native and citizen of Haiti who was admitted to the United States as a lawful permanent resident (LPR) in 1997. In 2012, he was convicted of two controlled substance offenses. The Department of Homeland Security (DHS) charged him with a notice to appear (NTA) in 2013, charging him with removability due to a conviction for an aggravated felony drug trafficking crime.2
The respondent filed an application for withholding of removal and for protection under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.3 Furthermore, the respondent filed a prehearing brief explaining his long term mental illness and treatment. Prior to his removal proceedings, the respondent was in criminal proceedings. In the criminal proceedings, the judge referred the respondent for three separate forensic evaluations to determine his capacity to understand the criminal charges against him and his ability to assist in his defense. The respondent provided the immigration court with this and other evidence pertaining to his mental competency.
In light of the “indicia of incompetency,” the Immigration Judge evaluated the evidence and made an individualized assessment of the respondent. The Immigration Judge determined that the respondent was competent to proceed.
Ultimately, the Immigration Judge found that the respondent was removable and ineligible for the relief from removal that he requested. The respondent appealed to the BIA. In his appeal, the respondent argued that, when indicia of incompetency are found, the burden is upon DHS to prove that the respondent is competent to go forward in removal proceedings.4
The BIA's Analysis in Matter of J-S-S-
The BIA explained that aliens in immigration proceedings are presumed to be competent. The BIA referred to its 2011 decision in Matter of M-A-M- [PDF version] in explaining that an Immigration Judge must make a competency determination when indicia of incompetency are present.5 The BIA cited its decision in Matter of M-A-M- [PDF version] in explaining that an alien is “competent” for purposes of immigration proceedings “if he or she has a rational and factual understanding of the nature and object of removal proceedings, can consult with an attorney or representative if there is one, and has a reasonable opportunity to examine and present evidence and cross examine witnesses.” The BIA explained that removal proceedings differ from criminal proceedings in that they may continue even if the respondent is found to be incompetent, provided that safeguards are in place to ensure that his or her rights and privileges under the Immigration and Nationality Act (INA) are protected.6
The BIA summarized the respondent's argument with regard to the burden for establishing competence:
- The respondent argued that he should bear the initial burden to raise a competency issue, with the qualification that both the Immigration Judge and the DHS have the burden of developing the record if either becomes aware of a competency issue;
- Once the indicia of incompetency are identified, the burden should shift to the DHS to show, by a preponderance (weight) of the evidence that the alien is competent to proceed or that safeguards can be put in place to protect his or her due process rights.
The BIA summarized the DHS's argument as follows:
- When an Immigration Judge identifies indicia of incompetency, neither the respondent nor the DHS bears a formal burden of proof to establish the respondent's competency or incompetency;
- The Immigration Judge should conduct an inquiry to determine if a preponderance of the available evidence establishes that the respondent is mentally competent.
For a variety of reasons, the BIA sided with the approach suggested by the DHS. The BIA explained that neither statutes nor regulations place a burden to raise the issue of competency on the respondent. The BIA cited competency regulations which state that where indicia of competency are apparent, the Government determines the appropriate person or entity to be served with the NTA.7 Furthermore, the INA charges the Immigration Judge with prescribing safeguards to protect the rights of the respondent when such safeguards are found to be appropriate, but it does not require that either the respondent or the DHS demonstrate a need.8
Relying upon its decision in Matter of M-A-M- [PDF version], the BIA made clear that indicia of incompetency may be found in evidence submitted in proceedings or through the observations of the Immigration Judge. Furthermore, the BIA has held that the DHS must provide the Immigration Judge with any materials in its possession that are relevant to the respondent's mental competency. Thus, rather than placing the burden upon the respondent or the DHS to either raise the issue of mental competency or demonstrate whether the respondent is mentally competent or not, the BIA laid out a collaborative approach in which both parties may work with the Immigration Judge to develop the record of evidence regarding the respondent's mental competency.
In addition, the BIA cited favorably the Ninth Circuit's opinion in Mason ex rel. Marson v. Vasquez [PDF version], which dealt with the allocation of the burden of proof for the petitioner's mental competency in Federal habeas corpus proceedings.9 The BIA quoted the following passage from that decision:
“Initially sufficient evidence must be presented to cause the court to conduct an inquiry. After that point it is no one's burden to sustain, rather it is for the court to determine by a preponderance of the evidence whether the petitioner is mentally competent…”
While the respondent argued that immigration proceedings are more similar to Federal criminal trials, and should thus use similar rules for allocating the burden for establishing competency or lack thereof, the BIA disagreed. The BIA stated in its decision that it believed the Ninth Circuit's approach for federal habeas proceedings was appropriate because like immigration proceedings, federal habeas proceedings are “civil in nature.”10
The BIA thus concluded:
“Consequently, we conclude that neither party bears a formal burden of proof in immigration proceedings to establish whether or not the respondent is mentally competent, but where indicia of incompetency are identified, the Immigration Judge should determine if a preponderance of the evidence establishes that the respondent is competent.”
The BIA then addressed its review process, explaining that in reviewing a competency claim, the Immigration Judge's determination of a competency claim, the BIA has the authority to determine whether a finding of fact11 was “clearly erroneous.”12 Upon reviewing the record, the BIA held that the Immigration Judge's competency determination in Matter of J-S-S- [PDF version] was not “clearly erroneous.”
The BIA's Decision in Matter of J-S-S-
While the BIA did not find that the Immigration Judge's competency determination was clearly erroneous, it did remand the case back to the Immigration Judge for further consideration of arguments that the respondent had made with regard to his application for withholding of removal and of the Immigration Judge's finding that the respondent had been convicted of a “particularly serious crime.”13 The BIA noted that, while those two matters are being considered on remand, both parties will have the opportunity to submit additional evidence regarding the respondent's mental competency.
My Analysis of Matter of J-S-S-
The BIA's decision in Matter of J-S-S- [PDF version] provides important guidance for removal proceedings where there is evidence that suggests the alien is mentally incompetent. The most important aspect of the decision is the BIA's holding that no party in immigration proceeding has the burden of making a competency claim or establishing the respondent's mental competency or lack thereof. Rather, the indicia of incompetency can derive from evidence presented by either the respondent or DHS, or from the observations of the Immigration Judge. Where the indicia of incompetency exist, the DHS is obligated to provide the Immigration Judge with any materials it has related to the respondent's mental competency. However, neither DHS nor the respondent has the burden of establishing competency or incompetency respectively. Instead, the BIA held that it is incumbent on the Immigration Judge to study the available evidence and make an individualized competency determination based upon the record in the case. If the respondent is found to be incompetent, the Immigration Judge, the DHS, and the respondent and his or her counsel may propose safeguards to ensure that the respondent's rights in proceedings are protected, although deciding upon the safeguards is ultimately the duty of the Immigration Judge.
- Matter of J-S-S-, 26 I&N Dec. 679 (BIA 2015)
- The respondent was charged with removability under INA § 237(a)(2)(A)(iii) for being convicted for an aggravated felony drug trafficking crime as defined in INA § 101(a)(43)(B).
- Withholding of removal under INA § 241(b)(3)(A).
- The respondent also made separate arguments regarding the denial of his claims for withholding of removal and protection under the Convention Against Torture. However, this blog post will focus on the BIA's handling of the burden of proof for establishing mental competency or lack thereof.
- Matter of M-A-M-, 25 I&N Dec. 474, 477, 480-81 (BIA 2011)
- The BIA cites: INA §§ 240(b)(3), (4); Matter of M-A-M-, 25 I&N Dec. 474, 477, 480-81 (BIA 2011); Brue v. Gonzales, 464 F.3d 1227, 1233 (10th Cir. 2006)
- The BIA cites: 8 C.F.R. § 103.8(c)(2); Matter of E-S-I-, 26 I&N Dec. 136 (BIA 2013)
- The BIA cites: INA § 240(b)(3)
- Mason ex. rel. Marson v. Vasquez, 5 F.3d 1220 (9th Cir. 1993)
- The BIA cites: Brue v. Gonzales, 464 F.3d at 1233; Nee Hao Wong v. INS, 550 F.2d 521, 523 (9th Cir. 1977) [“Deportation … is not a criminal proceeding, and the full trappings of procedural protections that are accorded criminal defendants are not necessarily constitutionally required for deportation proceedings”]
- The BIA cites: Thompson v. Keohane, 516 U.S. 99, 111 (1995); Maggio v. Fulford, 462 U.S. 111, 117 (1973) [describing a finding of competence as a “factual conclusion”]
- 8 C.F.R. § 1003.1(d)(3)(i) [this regulation provides that the BIA reviews findings of fact to determine if they are clearly erroneous]
- The BIA agreed with the respondent that there were errors in the Immigration Judge's determination that he was convicted of a “particularly serious crime” (with regard to withholding). Furthermore, the BIA agreed with the respondent that the Immigration Judge's analysis of his particular social group claim was incomplete.