Matter of M-J-K-, 26 I&N Dec. 773 (BIA 2016) Mental Competency


In cases involving issues of mental competency, an Immigration Judge has the discretion to select and implement appropriate safeguards, which the Board of Immigration Appeals reviews de novo.

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Matter of M-J-K-, Respondent

Decided June 29, 2016

U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals

In cases involving issues of mental competency, an Immigration Judge has the
discretion to select and implement appropriate safeguards, which the Board of
Immigration Appeals reviews de novo.

FOR RESPONDENT: Megan E. Hall, Esquire, Westminster, Colorado

FOR THE DEPARTMENT OF HOMELAND SECURITY: Kerri Calcador, Senior
Attorney

BEFORE: Board Panel: NEAL, Chairman; GREER, Board Member; O’HERRON,
Temporary Board Member.

GREER, Board Member:

In a decision dated August 14, 2014, an Immigration Judge terminated
the respondent’s removal proceedings without prejudice, finding that the
respondent was not competent and that adequate procedural safeguards
were not available. The Department of Homeland Security (“DHS”) has
appealed from that decision. Holding that we review the question of the
adequacy of safeguards de novo, we conclude that unexplored safeguards
may allow the proceedings to move forward. Accordingly, the record will
be remanded for the Immigration Judge to consider the implementation of
additional safeguards.

I. FACTUAL AND PROCEDURAL HISTORY

Removal proceedings were commenced on February 19, 2014, when the
DHS filed a notice to appear with the Immigration Court in Aurora,
Colorado. The notice to appear alleges that the respondent is a native and
citizen of Jordan who was admitted to the United States as a lawful
permanent resident in 1982. It further alleges that the respondent is
removable under section 237(a)(2)(A)(iii) of the Immigration and
Nationality Act, 8 U.S.C. § 1227(a)(2)(A)(iii) (2012), as an alien who has
been convicted of a crime of violence aggravated felony, as defined in
section 101(a)(43)(F) of the Act, 8 U.S.C. § 1101(a)(43)(F) (2012).
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Based on concerns about the respondent’s behavior, the Immigration
Judge in Colorado 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. Although the respondent did attend a
hearing on February 24, 2014, in Colorado, he thereafter engaged in
obstructive behavior and refused to attend several hearings scheduled
before another Immigration Judge in San Diego.
In the respondent’s absence, the San Diego Immigration Judge
determined that the respondent did not appear to be competent based on
evidence in the record, which included a psychological evaluation and the
U.S. Immigration and Customs Enforcement’s Form IHSC-883 (ICE
Health Services Corps Mental Health Review). The Immigration Judge
noted that a number of safeguards had been applied by the court, including
obtaining mental health evaluations, changing venue to a mental health
docket, and granting multiple continuances, but he found these safeguards
insufficient to ensure fairness in the proceedings.1 He also concluded that
the additional safeguards of representation by counsel and administrative
closure would not be effective. In particular, he found that the
psychological evaluation indicated that the respondent would not cooperate
with counsel and that there was no evidence about restoring competency
to support administrative closure. The Immigration Judge therefore
terminated the respondent’s proceedings without prejudice.
On appeal, the DHS argues that a remand is warranted for the
Immigration Judge to clarify his competency determination and to consider
additional safeguards, including service of the charging document under
Matter of E-S-I-, 26 I&N Dec. 136 (BIA 2013). The respondent, who is
now represented on appeal, asserts that the Immigration Judge’s decision
should be upheld.2 Alternatively, the respondent requests that the record be
remanded for further proceedings.
Further, the DHS asserts 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. In contrast, the respondent argues

1 We point out that, in effect, the Immigration Judge waived the respondent’s presence,
which is an appropriate safeguard under the facts in this case, where the respondent’s
behavior reflected that he could not contribute to, or participate in, the proceedings at that
time.
2 The respondent was not represented before the Immigration Judge, but he now has a
Qualified Representative appointed by the Executive Office for Immigration Review.
See generally Franco-Gonzalez v. Holder, No. CV 10-02211-DMG (DTBx), 2014 WL
5475097 (C.D. Cal. Oct. 29, 2014); 2013 WL 8115423 (Apr. 23, 2013); 2013 WL
3674492 (Apr. 23, 2013). On remand, the Immigration Judge should ensure compliance
with the applicable standards required by Franco-Gonzalez v. Holder.
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775

that the Immigration Judge did determine that he was not mentally
competent, despite the inability to conduct a judicial inquiry. Although the
Immigration Judge’s competency determination was, by necessity, made in
the respondent’s absence, he relied on relevant documentary evidence of
record to find that the respondent was incompetent. We find no clear error
in this determination. Matter of J-S-S-, 26 I&N Dec. 679, 683 (BIA 2015).3

III. ISSUE

This case addresses the applicable standard of review for the adequacy
of safeguards applied by an Immigration Judge in cases involving mental
competency issues. We hold that the Immigration Judge has discretion to
select and implement appropriate safeguards, which we review de novo.

IV. ANALYSIS

We have held 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 nature and object of the proceedings, can
consult with his or her representative, and has a reasonable opportunity to
examine and present evidence and cross-examine witnesses. Matter of
M-A-M-, 25 I&N Dec. 474 (BIA 2011). When an Immigration Judge finds
that a respondent is incompetent, he or she “shall prescribe safeguards to
protect the rights and privileges of the alien.” Section 240(b)(3) of the Act,
8 U.S.C. § 1229a(b)(3) (2012).
Although the Act does not provide further guidance on the
implementation of safeguards, the regulations do address discrete
situations, including the proper service of the charging document; the
appearance of a guardian, near relative, or friend on behalf of the alien; and
the prohibition on the Immigration Judge’s acceptance of an admission of
removability from certain unrepresented aliens. 8 C.F.R. §§ 103.8(c)(2),
1240.43, 1240.48(b) (2016). The regulations do not otherwise identify
specific safeguards to be applied. Nor do they limit the alternatives
available to ensure the procedural fairness of the hearing.
While the application of safeguards in cases of mental incompetency is
mandatory under the Act, we have recognized that Immigration Judges
have discretion to determine which safeguards are appropriate under the

3 Because we find it necessary to remand the record for other reasons, the Immigration
Judge will have the opportunity to reassess the respondent’s competency in light of any
updated evidence. Matter of M-A-M-, 25 I&N Dec. 474, 480 (BIA 2011) (observing that
“[m]ental competency is not a static condition”).
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circumstances of a particular case. See Matter of M-A-M-, 25 I&N Dec. at
481−82; see also Matter of J-S-S-, 26 I&N Dec. at 682 (observing that “the
Immigration Judge is charged with prescribing safeguards when they are
found to be appropriate”); cf. Davis v. Walker, 745 F.3d 1303, 1310 (9th
Cir. 2014) (stating that Rule 17(c) of the Federal Rules of Civil Procedure
“protect[s] an incompetent person’s interests in prosecuting or defending a
lawsuit” and observing that “the district court has discretion to craft an
appropriate remedy to protect the incompetent person”). For example, in
Matter of E-S-I-, 26 I&N Dec. at 145, we explained that re-serving the
notice to appear is a potential safeguard in a case involving a competency
issue that surfaced after proceedings were underway. We concluded that
the Immigration Judge has discretion to evaluate whether this safeguard
would be of benefit under the circumstances of a given case.
The regulations governing the scope of our review provide that the
“Board may review questions of law, discretion, and judgment and all other
issues in appeals from decisions of immigration judges de novo.” 8 C.F.R.
§ 1003.1(d)(3)(ii) (2016). An Immigration Judge’s identification of the
relevant or available safeguards in a given case may involve fact-finding
based on evidence in the record or the Immigration Judge’s observations.
However, the ultimate determination of which safeguards to implement and
whether they are adequate to ensure the fairness of proceedings is
discretionary. Cf. Ridore v. Holder, 696 F.3d 907, 921−22 (9th Cir. 2012)
(stating that the Board may weigh the facts underlying an Immigration
Judge’s discretionary determination de novo). Given that an Immigration
Judge’s consideration of appropriate safeguards involves making a
judgment about the alternative options that may be applied, we review that
discretionary determination de novo under our regulations.
As we have previously emphasized, the “Act’s invocation of safeguards
presumes that proceedings can go forward, even where the alien is
incompetent, provided the proceeding is conducted fairly.” Matter of
M-A-M-, 25 I&N Dec. at 477. In other words, even though a respondent
lacks competency, the inquiry does not end there. Rather, when the
respondent cannot participate in the proceedings because of a lack of
competency, the question becomes whether sufficient relevant information
can otherwise be obtained to allow challenges to removability and claims
for relief to be presented in the absence of reliable testimony from the
respondent. See Matter of J-R-R-A-, 26 I&N Dec. 609, 612 (BIA 2015)
(explaining that where an asylum applicant with mental health concerns
cannot provide reliable testimony, the Immigration Judge should focus on
whether the applicant can meet his burden of proof based on objective
evidence of record and other relevant issues).
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Accordingly, we have held that the parties can explore various
alternatives with the Immigration Judge, short of obtaining testimony from
the respondent. See Matter of J-S-S-, 26 I&N Dec. at 682 (explaining our
collaborative approach of requiring neither party to bear a formal burden of
proof for determining mental competency, which enables both parties to
work with the Immigration Judge to fully develop the record). We
recognize that the Immigration Judge in this case had a medical expert’s
opinion that counsel would not be an effective safeguard. However, we
conclude that under the circumstances presented, it was improper for the
Immigration Judge to determine that no adequate safeguards were available
without first attempting to take other steps that could allow the proceedings
to continue. See 8 C.F.R. § 1003.25(a) (2016) (stating that a mentally
incompetent alien’s “presence may be waived provided that the alien is
represented at the hearing by an attorney or legal representative, a near
relative, legal guardian, or friend”).
As counsel was available in the form of a Qualified Representative, the
proper course would have been to apply the safeguard of legal
representation. The participation of counsel increases the likelihood of
finding a means to proceed fairly, despite the respondent’s refusal to appear
in court. For example, counsel might interact with the respondent,
communicate with family, caregivers, and witnesses, or take other actions
to advance the case. Such actions should include presenting legal
arguments regarding removability and eligibility for relief from removal
that are not dependent on the ability to communicate with the respondent.
Additionally, even without assistance from the respondent, counsel could
provide relevant objective documentation, such as background or country
conditions evidence, to assist in adjudicating an application for relief.4 For
these reasons, we find it appropriate to remand the record for the
Immigration Judge to consider the implementation of additional safeguards.
Further, although the DHS requested a continuance in order to re-serve
the notice to appear in accordance with Matter of E-S-I-, the Immigration
Judge did not assess whether good cause supported the continuance request,
other than to note that the DHS had already been granted numerous
continuances. See 8 C.F.R. §§ 1003.29, 1240.6 (2016); cf. Matter of
Hashmi, 24 I&N Dec. 785, 794 (BIA 2009) (stating that the “number and
length of prior continuances are not alone determinative”). In a case such

4 Immigration Judges should be particularly reluctant to terminate proceedings where,
as here, the alien has a history of serious criminal conduct and may pose a danger to
himself or others upon his release into the community. Cf. Matter of G-G-S-, 26 I&N
Dec. 339, 346 (BIA 2014) (observing that the claim that one’s “violent act was a result of
his mental illness does not lessen the danger that his actions posed to others”) .
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as this, where evidence may need to be gathered from sources other than
the respondent, continuances for service of the notice to appear under
Matter of E-S-I- could involve seeking an individual with knowledge of the
respondent’s background, such as a relative, friend, or legal guardian. See
Matter of E-S-I-, 26 I&N Dec. at 142.
Similarly, continuances for the respondent’s counsel to investigate
sources of biographical information may be warranted. Here, evidence
provided by the DHS indicates that the respondent was, at some point,
married to a United States citizen and that he has submitted a written filing
claiming to have two sons who attend college in the United States. See id.
at 143 (“[W]here a respondent lacks competency, [a] family member . . .
may be able to help the respondent communicate with the Immigration
Court and counsel and may be able to provide relevant information
regarding alienage, date of entry, removability, and eligibility for relief.”).
In addition, although the Immigration Judge did not find administrative
closure to be warranted, he should evaluate whether that option could serve
a purpose in this unique context while other avenues are explored by the
parties. See generally Matter of M-A-M-, 25 I&N Dec. at 483.
Accordingly, since the respondent is now represented by an attorney, we
will remand the record for the Immigration Judge to reassess the safeguard
afforded by counsel and to consider additional safeguards as well.
ORDER: The record is remanded to the Immigration Court for further
proceedings consistent with the foregoing opinion and for the entry of a
new decision.

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Full Case here: Matter of M-J-K-, 26 I&N Dec. 773 (BIA 2016)

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