Matter of M-A-M (PUB)
Competency
This decision sets forth a framework for IJs to determine whether a respondent is sufficiently competent to proceed and whether the application of safeguards is warranted. As a threshold matter, an alien is presumed to be competent to participate in removal proceedings, and absent indicia of mental incompetency, an IJ is under no obligation to analyze an alien’s competency. 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. If there are indicia of incompetency, the IJ must make further inquiry to determine whether the alien is competent for purposes of immigration proceedings. If the alien lacks sufficient competency to proceed, the IJ will evaluate appropriate safeguards.
Examples of appropriate safeguards include, but are not limited to: refusal to accept an admission of removability from an unrepresented respondent; identification and appearance of a family member or close friend who can assist the respondent and provide the court with information; docketing or managing the case to facilitate the respondent’s ability to obtain legal representation and/or medical treatment in an effort to restore competency; participation of a guardian in the proceedings; continuance of the case for good cause shown; closing the hearing to the public; waiving the respondent’s appearance; actively aiding in the development of the record, including the examination and cross-examination of witnesses; and reserving appeal rights for the respondent. The IJ will consider the facts and circumstances of an alien’s case to decide which of these or other relevant safeguards to utilize. IJs must articulate the rationale for their decisions regarding competency issues.
In this case, there is good cause to believe that the respondent lacked sufficient competency to proceed with the hearing. The record includes several psychiatric reports that diagnose him with mental illness, and during criminal proceedings, the respondent was found to be unfit to proceed with a trial. Additionally, before the IJ, the respondent had difficulty answering questions, discussed his illness and need for medication, and asked to see a psychiatrist.
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