Second Circuit Addresses Due Process Rights of Mentally Incompetent Applicant

The Second Circuit has addressed the required findings that an Immigration Judge must make when adjudicating an application filed by a mentally incompetent individual.

“[W]e hold that to protect the rights and privileges of noncitizens who may be incompetent, an IJ must: (1) make a finding as to whether the noncitizen is incompetent; and, if so, (2) generate a record of sufficient findings regarding the character, scope, and severity of the noncitizen’s incompetency; (3) implement safeguards that address the character, scope, and severity of the noncitizen’s incompetency; and (4) articulate how and why the safeguards adequately and appropriately protect the noncitizen’s rights and privileges under the INA and the Due Process Clause. These findings are interdependent and obligatory, and a reviewing court cannot affirm the ultimate adequacy and appropriateness of safeguards to protect the noncitizen’s rights and privileges in the absence of sufficient findings at each step of the Matter of M-A-M- framework. We note that in cases of plausibly remediable incompetency, the range of safeguards IJs may consider includes halting the proceedings via administrative closure or termination without prejudice as to the government’s right to reopen.”

“It is troubling and hard to understand why other measures that could have helped ameliorate the ways Reid’s limitations disadvantaged him during the hearing were not discussed or implemented. For example, it appears that if Reid is indeed incompetent, his psychologist Dr. Cort and his social worker Alexis Donovan both alluded to the possibility of his continued treatment allowing him to recover some measure of competency and participate more fully in his deportation hearing. If that is true, a continuance or administrative closure to await his possible restoration to or improvement of competence might be a desirable safeguard. It is also possible that other safeguards would enable Reid’s counsel to more definitively establish the number of days he was imprisoned. We do not know, however, what would be appropriate without a record of sufficient findings on whether Reid is incompetent and if so, what safeguards would address his limitations.”

The full text of Reid v. Garland can be found here:

https://ww3.ca2.uscourts.gov/decisions/isysquery/3b0b7b8b-3834-4588-857b-8c91bf7750ad/6/doc/20-3324_opn.pdf

Ninth Circuit Limits Applicability of Mental Illness in Particularly Serious Crime Determination

The Ninth Circuit has determined that the agency must only reference a petitioner’s mental illness during a particularly serious crime analysis if the petitioner presents evidence attributing the crime to mental illness. The court also determined that the agency was not required to terminate proceedings for a mentally ill petitioner who physically attacked his qualified representative and who refused to cooperate in any document collection efforts made by his representative.

The full text of Benedicto v. Garland can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/09/09/18-73237.pdf

Ninth Circuit Addresses Competency

The Ninth Circuit has elaborated on the standard for demonstrating mental incompetency.  To demonstrate mental incompetency, a person must show some inability to comprehend or to assist and participate in the proceedings, some inability to consult with or assist their counsel or their representative if pro se, and lack of a reasonable opportunity to present evidence and examine witnesses, including cross-examination of opposing witnesses. The mere inability to recall some events, a common weakness, and other similar mental lapses, are not sufficient to show mental incompetency, if they do not show any inability to understand the nature and object of the proceeding.

The full text of Mora Salgado v. Sessions can be found here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/05/08/14-71890.pdf

Fifth Circuit Addresses the Role of PTSD in Credibility Determinations

The Fifth Circuit has determined that an Immigration Judge need not consider a petitioner's post-traumatic stress disorder when evaluating credibility, unless the petitioner has been deemed incompetent or have a mental illness or serious cognitive disability that affects their ability to provide testimony in a coherent, linear manner. 

The full text of Singh v. Sessions can be found here:

http://www.ca5.uscourts.gov/opinions/pub/16/16-60059-CV0.pdf

Ninth Circuit Reverses Agency's Competency Finding

The Ninth Circuit has reversed the agency's finding that a detained immigrant was competent to participate in his immigration proceedings.  In particular, the Court expressed concern that the Department of Homeland Security did not provide updated or complete medical records to the Court.  

"Importantly, neither the IJ nor the BIA recognized that, as DHS was providing ongoing medical care to Calderon as a detainee, it necessarily possessed additional relevant, but not introduced, medical records. There were, indeed, specific indications that there were later medical records not provided to the IJ or the BIA that could have reflected a deterioration in Calderon’s condition."

"We note that, as Calderon argues, DHS may have violated an order implementing the permanent injunction in Franco-Gonzalez by failing to provide Calderon’s updated mental health information to the IJ and BIA.  However, because Calderon’s complete mental health information was not introduced into the record, we are unable to determine if Calderon was a member of the Franco-Gonzalez class, and thus cannot determine if the order was violated."

The full text of Calderon v. Sessions can be found here: 

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/01/03/16-70225.pdf

Ninth Circuit Remands Case where Petitioner Displayed Indicia of Mental Incompetency

The Ninth Circuit remanded a case where the petitioner displayed signs of mental indicia, but the Immigration Judge did not apply the standards of Matter of N-A-M- to determine if the petitioner was competent to participate in his removal proceedings.

The full text of Campos Mejia v. Sessions can be found here: 

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/08/29/15-70155.pdf

Board of Immigration Appeals Reviews Safeguards for Mentally Incompetent Individual

The Board of Immigration Appeals (Board) has determined that an Immigration Judge's determination as to what safeguards are necessary to protect the rights of a mentally incompetent individual in removal proceedings is a discretionary determination, and thus, subject to de novo review by the Board.  In the instant case, though the Immigration Judge was in receipt of a psychological evaluation noting that the appointment of counsel would not be a sufficient safeguard, the Board faulted the Judge for terminating proceedings, instead of appointing counsel and allowing counsel time to locate the individual's family and friends and attempt to obtain relevant information about his removability or eligibility for relief from them.

The full text of Matter of M-J-K- can be found here: 

https://www.justice.gov/eoir/file/871786/download

BIA Addresses Burdens of Proof for Analyzing Competency

The Board of Immigration Appeals (Board), in a precedent decision, has continued to expand its case law on the treatment of mentally incompetent non-citizens in removal proceedings. Today, the Board determined  that neither the non-citizen nor the Department of Homeland Security bears a formal burden of proof in immigration proceedings to establish whether or not the non-citizen is mentally competent, but where indicia of incompetency are identified, the Immigration Judge should determine if a preponderance of the evidence establishes that the non-citizen is competent.  Finally, a finding of competency is a finding of fact that the Board will review to determine if it is clearly erroneous. 

The full text of Matter of J-S-S- can be found here: http://www.justice.gov/sites/default/files/pages/attachments/2015/11/02/3851.pdf

BIA Addresses Evaluation of Asylum Claims for Applicants with Cognitive Disabilities

In a published decision, the Board of Immigration Appeals (BIA) expressed concern with an IJ's evaluation of a cognitively disabled individual's credibility.  First, the BIA noted that the presence of clear indicia of mental incompetence, and found that the Immigration Judge should have held a competency hearing, even though the applicant was represented by counsel.  Second, the BIA determined that "where a mental health concern may be affecting the reliability of the applicant’s testimony, the Immigration Judge should, as a safeguard, generally accept that the applicant believes what he has presented, even though his account may not be believable to others or otherwise sufficient to support the claim.  The Immigration Judge should then focus on whether the applicant can meet his burden of proof based on the objective evidence of record and other relevant issues.  This safeguard will enhance the fairness of the proceedings by foreclosing the possibility that a claim is denied solely on testimony that is unreliable on account of the applicant’s competency issues, rather than any deliberate fabrication."

The full text of Matter of J-R-R-A- can be found here: http://www.justice.gov/eoir/file/477361/download