[May 2011 Update: two months after this post the BIA published a very helpful case outlining the protocol for competency hearings. We wrote a about Matter of M-A-M- and competency hearings here.]

As we previously wrote on competency hearings in Immigration Court, the BIA continues to remand cases for the Immigration Courts to hold competency hearings while the Department of Justice fails to instruct Immigration Judges on how to conduct such hearings.

IJ Mimi Tsankov wrote in April, 2009 that

the Board has yet to hold that a respondent’s due process rights have been violated because of incompetency during removal proceedings. The Board has reached its conclusions in two manners: (1) by finding that a given respondent, who often times has appeared pro se, has failed to demonstrate incompetence through testimonial and documentary evidence; and (2) by finding that despite proffering such evidence, a respondent who was represented was nevertheless able to understand the nature of the proceedings and the charges against him.

For respondents who are adjudged by an Immigration Judge to be incompetent and who are unrepresented by an attorney or other prescribed representative, there are no cases that consider how to conduct proceedings so that the safeguards of 8 C.F.R. § 1240.4 are met.

The EOIR has responded by posting a set of instructions for IJs on its online-benchbook under the heading “Mental Health Issues.”

We note preliminarily one doesn’t need to be mentally ill to be incompetent.  “Incompetent” just means the immigrant is unable to understand the proceedings.  It might also include young children or a person for whom no interpretation is provided.

The instructions of Immigration Judges read like a hodge podge of mixed criminal and civil guidance, both from federal and state law, none of which is binding.

For example “for a list of possible questions to ask in evaluating” competence, the Bench Book points to a California court website.  For “an overview of the five main stages of competency hearings” the page points to a scan of a 2003 book on Forensic assessments and instruments.

For “a list of possible things to look for in identifying mental health issues,” the Bench Book gives a citation for a 2007 book on competency evaluations, but an IJ would have to go to the library or buy the book from a store to read it, as there is not a copy online.

The Bench Book goes on to say that “it is an open question whether ‘competency’ is a finding of fact or a conclusion of law. When conducting proceedings, Immigration Judges should remain cognizant of that, as it may impact the BIA’s standard of review.” This is akin to telling immigration judges to watch out for those pesky competence hearings, because nobody knows what they’re supposed to be like.

The conflict is that it is the Attorney General’s job to ensure due process in removal proceedings – and yet the instructions for Immigration Judges read more like a tool kit for immigration judges to insulate their decisions from review on appeal.

These are not the same thing.

While we appreciate the EOIR’s attempts to inform its judges on how to conduct competency hearings, there is absolutely guidance for immigrants or their families.

Moreover, because the practice manuals for the BIA and the Immigration Courts say nothing about competency hearings, there is no guidance for immigration attorneys on how to practice in this setting.