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Mental competency and immigrants

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Aliens in immigration proceedings are presumed competent.  The Board of Immigration Appeals recently made clear that an Immigration Judge must make a competency determination when there are indicia of incompetency.  Matter of J-S-S-, 26 I&N Dec. 679 (BIA 2015)

An alien is competent if he/she: has a rational and factual understanding of the nature and object of the 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.  Even though a respondent may lack competency, the removal proceedings may continue if his rights and privileges under the Act are protected.

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Allocation of the burden of proof

Whether the respondent or DHS bears the burden of proof of establishing mental competency.

Neither party bears a formal burden of proof to establish the mental competency of a respondent.  When signs of incompetency are identified, the Immigration Judge should determine if a preponderance of the evidence established that the respondent is competent.

Here, neither the respondent nor DHS had the burden to establish that a competency issue.  The respondent was presumed competent.  However, the Immigration Judge was aware of the indicia of the respondent’s incompetency.  Her determination was based on the documentary evidence about the respondent’s mental health, his testimony at his hearings, his communication skills with his attorney, and his ability to assist in the development of his case. Based on these indicia of incompetency, the respondent was found to be competent.

Standard of Proof

The preponderance of the evidence standard applies for determining a respondent’s mental competency.  Here, the Immigration Judge based her determination on the preponderance of the evidence presented by the parties.

Review of Competency Determinations

A competency finding is a finding of fact and the Board will review it to determine whether it is clearly erroneous.  

In this case, the Board found that the Immigration Judge’s competency finding was not clearly erroneous because she identified the indicia of incompetency, addressed all the evidence of record, and noted her own observations of the respondent’s participation in the hearing and his responses to her questions. Therefore, the Immigration Judge’s finding was not clearly erroneous.


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