Introduction: Mental Competency Safeguards in Immigration Proceedings

On June 29, 2016, the Board of Immigration Appeals (BIA) issued a precedent decision in the Matter of M-J-K-, 26 I&N Dec. 773 (BIA 2016) [PDF version]. The Board held that in immigration proceedings where there are mental competency concerns regarding the alien, the Immigration Judge has discretion to select and implement appropriate safeguards to allow the proceedings to go forward. The Board also held that on appeal, it will review such safeguards de novo (from the beginning). In this article, we will discuss the Board’s holding in the Matter of M-J-K- and what the precedent means going forward.

To read about other recent BIA precedent on mental competency issues in immigration proceedings, please see our article about the Matter of J-S-S-, 26 I&N Dec. 679 (BIA 2015) [PDF version] [see article].

Factual and Procedural History in the Matter of M-J-K-

The Department of Homeland Security (DHS) initiated removal proceedings against the respondent, a lawful permanent resident (LPR) and native and citizen of Jordan, on the basis of being charged with removability under section 237(a)(2)(A)(iii) of the Immigration and Nationality Act (INA) for having been convicted of an immigration aggravated felony [see article] for a crime of violence under section 101(a)(43)(F).
The proceedings were slated to be held before an Immigration Judge in Colorado. However, the Immigration Judge continued the case for a psychiatric evaluation and granted the DHS’s motion to change venue to a mental health docket for detainees in San Diego, California.
The respondent attended one hearing before the Immigration Judge in Colorado. However, upon the change of venue to San Diego, the respondent began engaging in obstructive behavior and refused to attend several hearings before the Immigration Judge in San Diego.
The Immigration Judge in San Diego determined that the respondent did not appear to be component based on (1) the psychological evaluation and (2) the Immigration and Customs Enforcement’s (ICE’s) Form IHSC-883, ICE Health Services Corps Mental Health Review.
The Immigration Judge in San Diego acknowledged the numerous safeguards that had been applied by the court to ensure that the respondent, despite the mental competency concerns, had a fair hearing. However, the Immigration Judge found that the safeguards were insufficient to ensure the fairness of the proceedings. The Immigration Judge also concluded that additional safeguards such as representation by counsel and administrative closure would be insufficient. Accordingly, the Immigration Judge terminated the respondent’s removal proceedings without prejudice.

The DHS appealed the Immigration Judge’s decision. It asked the Board to remand to the Immigration Judge for him to clarify his competency determination and to explicitly consider additional safeguards, such as the service of a charging document under the Matter of E-S-I-, 26 I&N Dec. 136 (BIA 2013) [PDF version]. The DHS also argued that the Immigration Judge did not “make a clear finding with regard to the respondent’s competency, because the respondent refused to attend the hearing.”

The respondent, who was represented by counsel on appeal, asked first that the Immigration Judge’s decision be upheld, but in the alternative, that the record be remanded to the Immigration Judge for further proceedings.

Board’s Analysis and Decision

Citing to the Matter of M-A-M-, 25 I&N Dec. 474 (BIA 2011) [PDF version], the Board explained that the “test for determining whether an alien is competent to participate in immigration proceedings is whether he or she has a rational and factual understanding of the object of proceedings, can consult with his or her representative, and has a reasonable opportunity to examine and present evidence and cross examine witnesses.” The Board further explained that if an Immigration Judge finds that the respondent is incompetent, he or she shall, under section 240(b)(3) of the INA, prescribe safeguards to protect the rights and privileges of the alien in proceedings.

The Board noted that while the regulations address discrete situations involving mental competency issues in immigration proceedings, they do not provide for specific safeguards for an alien who is found to be mentally incompetent. Accordingly, it is the responsibility of Immigration Judges to set appropriate safeguards for aliens with mental competency concerns. The Board made this explicit in its precedent decision, the Matter of J-S-S-, 26 I&N Dec. at 682 [see article]. The Board has provided guidance to Immigration Judges, for example it cited to its precedent decision in the Matter of E-S-I-, 26 I&N Dec. at 145, wherein it held that re-serving the notice to appear is a potential safeguard in immigration proceedings involving a mental competency issue “that surfaced after proceedings are underway.” The Board noted that in the Matter of E-S-I-, it left it up to the Immigration Judge in a given case to determine whether re-serving the notice to appear would be an appropriate safeguard.

Because the Matter of M-J-K- arises within the jurisdiction of the Ninth Circuit, the Board is bound by relevant Ninth Circuit precedent on any issues presented. In Rodore v. Holder, 696 F.3d 907 (9th Cir. 2012) [PDF version], the Board explained that the Ninth Circuit held that the Board may weigh the facts that underpinned an Immigration Judge’s discretionary decision de novo. Because determining appropriate mental competency safeguards is a discretionary decision, the Board reviewed the Immigration Judge’s decision de novo.

The Board cited to the Matter of M-A-M-, 25 I&N Dec. 474 (BIA 2011), wherein it held immigration proceedings may go forward even when an alien is found to be incompetent, so long as the proceeding is conducted fairly. The Board explained that “fairly” means that there is an opportunity to obtain and present sufficient information to allow challenges to the alien’s removability and claims for relief for relief. In the Matter of J-R-R-A-, 26 I&N Dec. 609 (BIA 2015) [PDF version], the Board held that an Immigration Judge should “focus on whether the applicant can meet his [or her] burden of proof based on objective evidence of record and other relevant issues” (in the context of an asylum applicant with mental health concerns).

The Board explained that in the Matter of J-S-S-, 26 I&N Dec. at 682, that Immigration Judges may explore various alternatives short of obtaining testimony from the alien in order to allow for immigration proceedings to continue. In the instant case, the Board noted that the Immigration Judge found, based on the medical expert’s opinion, that the suggested remedies in the Matter of J-S-S- would be insufficient. However, the Board found that the Immigration Judge acted improperly in determining that there were no adequate safeguards available “without first attempting to take other steps that could allow the proceedings to continue.” To this effect, the Board noted that 8 C.F.R. 1003.25(a) provides that a mentally incompetent alien’s presence may be allowed to be waived “provided that the alien is represented at the hearing by an attorney or legal representative, a near relative, legal guardian, or friend.”

Remand for Insufficient Consideration of Qualified Representative Safeguard

The Board noted that counsel was available in the instant case “in the form of a Qualified Representative.” It held that the Immigration Judge should have applied “the safeguard of legal representation.” The Board noted that legal counsel in the case would have provided means for the case to proceed fairly despite the respondent’s refusal to appear in court. The Board explained that in addition to interacting with the respondent or other interested parties, counsel would be able to present “legal arguments regarding removability and eligibility for relief from removal that are not dependent on the ability to communicate with the respondent.” For these reasons, the Board saw fit to remand for the Immigration Judge to consider the implementation of additional safeguards.

Discussion of Appropriateness of Further Continuances

With regard to the DHS’s argument that it should be granted a continuance to re-serve the notice to appear “in accordance with [the] Matter of E-S-I-,” the Board noted that the Immigration Judge had only noted that the DHS had already been granted numerous continuances. The Board cited to the Matter of Hashmi, 24 I&N Dec. 785, 794 (BIA 2009) [PDF version], where it held that the number and length of prior continuances are not determinative on whether good cause supports a subsequent continuance. The Board held that continuances may be appropriate both for the DHS and the respondent’s counsel for want of additional evidence from persons with knowledge of the respondent’s background and for further investigation into the respondent’s biographical information. Additionally, the Board instructed the Immigration Judge to “evaluate [whether administrative closure] could serve a purpose in this unique context while other avenues are explored by the parties.”

Finding no clear Error in Immigration Judge’s Mental Incompetency Finding

The Board disagreed with the DHS’s argument that the Immigration Judge did not make a clear finding of the respondent’s competency because the respondent refused to attend the hearing. Rather, the Board found not clear error in the Immigration Judge’s decision to find the respondent mentally incompetent based on the documentary evidence in the record. However, citing to the Matter of M-A-M-, 25 I&N Dec. 474, 480 (BIA 2011), the Board noted that the Immigration Judge would have the opportunity to reassess the respondent’s competency on remand “in light of any updated evidence.” This is because “[m]ental competency is not a static condition,” meaning that the finding that an alien is mentally incompetent is not necessarily permanent in immigration proceedings (citing to the Matter of M-A-M-).

Order

Accordingly, the Board remanded the record to the Immigration Judge for proceedings consistent with its opinion.

Conclusion: Mental Competency Safeguards in Immigration Proceedings

By statute, an Immigration Judge is required to provide for adequate safeguards to ensure the fairness of immigration proceedings regarding an alien who is found to be mentally incompetent. However, while the Board’s precedents and the regulations provide some guidance, it is ultimately up to the discretion of the Immigration Judge to determine the requisite safeguards for fair proceedings. The Matter of M-J-K- highlights that, although the Immigration Judge has broad discretion, his or her decisions regarding how to conduct proceedings for an alien found to be mentally incompetent are still subject to review by the BIA. One of the central reasons the Board remanded the record in the Matter of M-J-K- was because the Immigration Judge did not properly consider whether the safeguard of immigration counsel along with any other necessary safeguards would have ensured the fairness of the proceedings. The decision also highlighted many of the ways in which an experienced immigration attorney can protect the rights of an alien who is found to be mentally incompetent in immigration proceedings. While it is always important for an alien in immigration proceedings to consult with an experienced immigration attorney, the stakes are especially high where he or she has mental health issues that may impair his or her ability to fully understand or to be present at the proceedings.