[Update May 2011: two months after this post the BIA published helpful guidance on what is required for a competency hearing in Matter of M-A-M-]
The BIA has been remanding cases to the Immigration Courts recently for the Immigration Judge to conduct a competency hearing where the immigrant appears to have a mental disability or other fact (such as very young age) that might make her unable to understand the proceedings or testify competently.
In many of these cases, the Department of Homeland Security knows the immigrant is mentally ill, because they’re detaining him and consequently issuing him his medication.
That was the case in this recent BIA remand we won.  It is a travesty that the DHS does not raise this issue in the first instance with the Immigration Judge, especially when a mentally ill immigrant is detained and not represented by an attorney.
The BIA recently admonished the DHS trial attorneys to provide any evidence it is possesses “through evaluation while in detention.”  The Immigration Court’s bench book says DHS is supposed to “alert the Immigration Judge to any mental health issues discovered upon intake or based on information contained in the Department’s file.”
Of course, they often do not do so.
There is a deeper problem in these cases, though.  Once the Board remands back to the Immigration Court for a hearing on an individual’s competence, there is little or no guidance on how an Immigration Judge is supposed to conduct such a hearing.
The BIA’s practice manual says nothing about a respondent’s competence.  The only reference to competence in the Immigration Court’s practice manual is the requirement of a competent translation and the competence of one’s attorney or representative.
When asked how these hearings are supposed to be conducted, the Department of Justice has provided few if any details.
The Immigration Judge bench book does provide a basic outline of how competency should be evaluated.  For example, in this template decision, which is published on the Department’s website to guide Immigration Judges, the following is described as the procedure taken in that case:

“On August 25, 2009, the Court entered an Order directing that the respondent be evaluated by the U.S. Public Health Service or any contract agency or individual charged with mental health services for immigration detainees; that said agency shall prepare a study and report on the respondent’s mental condition and an evaluation of the respondent’s competency to represent himself in removal
proceedings; and that the report shall be confidential and made available only to the respondent, EOIR, Office of the Chief Counsel (DHS/ICE), and the respondent’s appointed representative. (Exh. 14.) On November 4, 2009, the
Court ordered that the Department of Homeland Security shall produce the report referenced in the Order of August 25, 2009, no later than November 18, 2009, or shall provide a full explanation as to why there has been a delay in compliance with the Court’s prior Order. (Exh. 16.)”

Although there is no formal requirement that such a report be produced, this is a reasonable step that an IJ can take to get a clear view of the immigrant’s competence before proceeding.
It is concerning, though, that pushing this duty off on the DHS may bring us full circle.  If the DHS is regularly not providing the court with the evidence it possesses to show that an immigrant might be mentally incompetent, it is a frustrating compromise to put in the DHS’s hands the duty to actually determine the immigrant’s competence at all.
The EOIR must publish a specific procedure for adjudicating immigrants’ competence in removal proceedings so that any such adjudication remains neutral.  The DHS has proven that it is not up to the task.