We have been complaining about remands for competency hearings without any guidance on how competency is supposed to be determined. Apparently, the BIA heard our complaints, because the precedent opinion issued today finally addresses this question. Sadly, Matter of M-A-M-, 25 I&N Dec. 474 (BIA 2011) leads to more questions than answers, and we still lack solid guidance on this area of the law. But at least the Board was up front with these limitations, saying
We recognize that this is a difficult area of the law and that our decision today addresses a limited set of questions regarding aliens with competency issues in immigration proceedings. Nevertheless, our goal is to ensure that proceedings are as fair as possible in an unavoidably imperfect situation. To that end, this decision will provide a framework for analyzing cases
in which issues of mental competency are raised.
The Board starts out by setting forth the test for mental competency and defining who exactly is incompetent.
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.
Proof of incompetency can include the following:
- Noticeable behaviors “such as the inability to understand and respond to questions, the inability to stay on topic, or a high level of distraction.”
- “evidence of mental illness or incompetency”; and
- evidence of applications for disability benefits and affidavits or testimony from friends or family members
Not shockingly, the BIA has concluded that the DHS is obligated to provide “the court with relevant materials in its possession that would inform the court about the respondent’s mental competency.” Multiple recent unpublished cases have chastised the DHS for not complying with this obligation.
Beyond these very general guidelines, most of what the Board has to say is not helpful. For example, the Board indicated that the IJ can sometimes proceed against an incompetent respondent by modifying “the questions posed to the respondent to make them very simple and direct.” If a person is incompetent, that is to say “does not understand the nature of the proceedings,” talking slowly isn’t a solution. The Board outlines several examples of safeguards that an IJ can use to protect the rights of an incompetent respondent, but most of these avoid the actual issue. If a respondent is incompetent, the only safeguards that are fair are either those that restore his competency or that halt the proceedings.