BIA on Respondent Competency in Removal Proceedings in Matter of M-A-M-, 25 I & N Dec. 474 (BIA 2011)

On May 4, 2011, the Board of Immigration Appeals (BIA) set forth a framework for the Immigration Judge to assess the competency of respondents in removal proceedings and remanded the case, finding good cause to believe the respondent was not sufficiently competent to proceed with the hearing.

Respondent in this case came from Jamaica and was removable on the basis of his conviction for two or more crimes involving moral turpitude.  Respondent had been diagnosed with schizophrenia, and indicated that he needed medication. At the individual hearing, the Immigration Judge denied Respondent’s asylum relief and summarized the respondent’s mental health history.  However, Immigration Judge did not make an explicit finding regarding respondent’s mental competency.

The BIA remanded the case to the Immigration Judge for further proceedings because the Board concluded that the respondent lacked sufficient competency to proceed with the hearing. According to the BIA, the record includes several psychiatric reports that diagnose him with mental illness, and during criminal proceedings, the respondent was found to be unfit to proceed with a trial.  More importantly, the BIA set forth a framework for the IJ to assess the competency of respondents in removal proceedings as below:

• Aliens in immigration proceedings are presumed to be competent and, if there are no indicia of incompetency in a case, no further inquiry regarding competency is required.
• 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 the attorney or representative if there is one, and has a reasonable opportunity to examine and present evidence and cross-examine witnesses.
• If there are indicia of incompetency, the Immigration Judge must make further inquiry to determine whether the alien is competent for purposes of immigration proceedings.
• If the alien lacks sufficient competency to proceed, the Immigration Judge will evaluate appropriate safeguards.
• Immigration Judges must articulate the rationale for their decisions regarding competency issues.

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