Madiagne Diop v. Loretta Lynch

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 14-2115

MADIAGNE DIOP,

Petitioner,

v.

LORETTA E. LYNCH, Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration

Appeals.

Argued: October 28, 2015 Decided: December 2, 2015

Before WILKINSON, KEENAN, and THACKER, Circuit Judges.

Petition for review denied by published opinion. Judge

Wilkinson wrote the opinion, in which Judge Keenan and Judge

Thacker joined.

ARGUED: Luis Carlos Diaz, LAW OFFICES OF JAY S. MARKS, LLC,

Silver Spring, Maryland, for Petitioner. Aaron David Nelson,

UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for

Respondent. ON BRIEF: Benjamin C. Mizer, Principal Deputy

Assistant Attorney General, Civil Division, Greg D. Mack, Senior

Litigation Counsel, Office of Immigration Litigation, UNITED

STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.

WILKINSON, Circuit Judge:

Petitioner Madiagne Diop challenges here the decision by

the immigration judge and Board of Immigration Appeals to deny

him a continuance or administrative closure of his removal

proceedings so he could receive a mental health evaluation.

Because the immigration judge did not err procedurally or

substantively in assessing Diop’s mental competency, we deny the

petition for review.

I.

A.

Diop is a native of Senegal. He was admitted to the United

States as a temporary visitor under a B-2 visa on October 15,

1997 and granted entry only until April 14, 1998. Diop

overstayed his six-month visa and has resided in the United

States without legal immigration status for the past seventeen

years. On January 14, 2012, Diop was arrested following a

psychotic episode at his workplace, a Bed Bath & Beyond in

Rockville, Maryland. He was indicted on eleven counts, including

assault, sexual assault, and resisting arrest. Based on his

behavior at the time of arrest, Diop was transferred from police

custody to a hospital for a psychological evaluation. He was

diagnosed with psychosis and prescribed antipsychotic medication

before returning to police custody.

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Diop eventually pled guilty to three counts of second-

degree assault. He was sentenced to 120 days for each count. The

court suspended all of his sentences and placed him on probation

for three years. The Department of Homeland Security served Diop

with a Notice to Appear on October 10, 2012. The Notice deemed

Diop removable under 8 U.S.C. § 1227(a)(1)(B) as a nonimmigrant

who remained in the United States longer than permitted in

violation of the Immigration and Nationality Act.

B.

During his removal proceedings, Diop appeared before an

immigration judge (IJ) in Baltimore, Maryland a total of five

times between November 2012 and May 2013. At the November 28,

2012 hearing, the IJ indicated that the court would evaluate

Diop’s mental competency when it reconvened on December 13,

2012. The IJ questioned Diop at that hearing, leading to the

following dialogue:

IJ: And, Mr. Diop, I would like to just ask you a few

questions. Your attorney said that she was about to

communicate with you. Did you feel like you were able to

have a meaningful conversation with her?

Diop: I spoke to her on the phone.

IJ: You did talk to her on the phone? Okay. All right, and

are you having any trouble understanding me today?

Diop: [Indiscernible]

IJ: Okay. Do you have any history of mental health

problems?

Diop: No.

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IJ: No? Okay. And do you understand why you are in these

proceedings?

Diop: Not really.

IJ: Okay. Okay, what do you understand the purpose of these

hearings that you’ve been brought to be?

Diop: Excuse me?

IJ: What do you understand the purpose of these hearings?

Diop: It’s about immigration, right?

IJ: Yes, Okay, this is about immigration. And if you have

anything that you . . . need to tell your attorney about

your Immigration history or Immigration status, do you

think you will be able to communicate with her and tell her

what you need to tell her?

Diop: Sure.

IJ: Okay.

Diop: Sometimes it’s hard. Where I’m at, I have to pay to

use the phone and it costs like $20.

IJ: Okay. Okay, but other than that, once you can get her

on the phone do you feel like you can communicate with her

about your situation?

Diop: Yes.

J.A. 143-45. Based on this exchange, his counsel’s

representations, and the record as a whole, the IJ found Diop

competent to participate in removal proceedings. At the next

hearing on February 7, 2013, Diop admitted all factual

allegations against him and conceded that he was removable.

Diop’s counsel requested another continuance so that she could

ask for prosecutorial discretion. When asked whether Diop would

seek other forms of relief, counsel responded, “at this time . .

. all I’m seeing immediately is that he might be eligible for a

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prosecutorial discretion.” J.A. 155. The IJ granted the

continuance.

On April 23, 2013, Diop moved to either administratively

close or continue proceedings in order to await passage of an

immigration reform bill in Congress. Diop argued that the law

would grant him legal status despite his prior convictions. The

IJ refused to continue the case pending legislation that “has

not been enacted and likely would not be enacted in its current

form.” J.A. 124. She granted Diop voluntary departure, or in the

alternative, ordered his removal.

Diop filed an appeal to the Board of Immigration Appeals

(BIA) on June 6, 2013, arguing that the IJ should have

administratively closed or continued the case in order to allow

Diop to receive a psychological evaluation. To contest the IJ’s

finding of competency, Diop put forth mental health records from

immediately after his arrest on January 14, 2012. Diop also

posited that a mental health assessment would have given him the

opportunity to advance, for the first time, a claim for

withholding of removal on account of his mental incompetency.

The BIA found no clear error in the IJ’s determination that

Diop was competent to proceed. The Board noted that Diop

testified to no prior history of mental health problems and had

demonstrated his ability to communicate with counsel. The BIA

discounted the assessment taken directly after Diop’s psychotic

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episode as merely a reflection of his mental state at that

moment and relied instead on his more recent favorable mental

health records. Diop’s withholding claim was rejected because he

had failed to raise it before the IJ. The BIA affirmed the order

of removal, and this petition for review followed.

II.

A.

Petitioner challenges his removal order on a single basis:

that the IJ should have continued or administratively closed the

removal proceedings to allow Diop to receive a mental health

evaluation. He claims that the IJ’s refusal to do so violated

due process. Respondents in removal proceedings are entitled to

procedural due process. Reno v. Flores, 507 U.S. 292, 306

(1993). To establish a due process violation, the respondent

must prove both “that the defect in the proceeding rendered it

fundamentally unfair” and “that the defect prejudiced the

outcome of the case.” Anim v. Mukasey, 535 F.3d 243, 256 (4th

Cir. 2008).

The IJ denied Diop an independent psychological evaluation

because she deemed him competent to proceed. Competency has long

been considered an issue of fact. See Thompson v. Keohane, 516

U.S. 99, 111 (1995). The IJ’s factual finding of competency is

reviewed under the substantial evidence standard and treated as

conclusive unless the evidence presented “was such that any

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reasonable adjudicator would have been compelled to conclude to

the contrary.” Haoua v. Gonzalez, 472 F.3d 227, 231 (4th Cir.

2007).

The BIA established in Matter of M-A-M the process for

addressing mental competency in removal proceedings. 25 I&N Dec.

474 (BIA 2011). Inherent in this process is a high degree of

flexibility and discretion for the fact-finder to tailor his

approach to the case at hand. First, the IJ starts with a

presumption of competence. Id. at 477 (citations omitted). If he

finds no indicia of incompetency, the inquiry is at an end. Id.

(citations omitted). The test for competency utilized by the BIA

has three components: whether the respondent (1) “has a rational

and factual understanding of the nature and object of the

proceedings,” (2) “can consult with the attorney or

representative if there is one,” and (3) “has a reasonable

opportunity to examine and present evidence and cross-examine

witnesses.” Id. at 479. In applying this test, the IJ may draw

on a “wide variety of observations and evidence,” including his

perception of the respondent’s behavior and medical records or

psychological assessments. Id.

Where there are indicia of incompetency, the IJ should

“take measures to determine whether a respondent is competent to

participate in proceedings.” Id. at 480. Here, the Board notes,

“the approach taken in any particular case will vary based on

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the circumstances.” Id. The Board offers some examples of

measures the IJ could take, such as questioning the respondent

about his state of mind and medical history or, if the matter

remains in doubt, requesting a mental health evaluation. Id. at

480-81. In a recent decision, the BIA further clarified that

neither party bears the burden of proof at this stage; rather,

the IJ should determine by a preponderance of the evidence

whether the respondent is competent. Matter of J-S-S, 26 I&N

Dec. 679, 683 (BIA 2015); M-A-M, 25 I&N Dec. at 481.

B.

The upshot of the foregoing discussion should be clear. The

BIA does not tie the fact-finder to a list where one unchecked

item could invalidate an otherwise fair removal proceeding. The

Board has avoided requiring IJ’s to ask any particular question,

request any particular evaluation, or adopt any particular

safeguard. It opts instead for an adaptable case-by-case

approach. By contrast, petitioner here is bent on contorting

every “may” into “must,” every issue of fact into a question of

law, every illustrative guide into a binding directive.

Petitioner’s position ignores the Supreme Court’s language:

competency “depends heavily on the trial court’s appraisal of

witness credibility and demeanor.” Thompson, 516 U.S. at 111. In

other words, competency is an issue that highlights the

institutional constraints on appellate courts: “Face to face

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with living witnesses the original trier of the facts holds a

position of advantage from which appellate judges are excluded.”

Maggio v. Fulfold, 462 U.S. 111, 118 (1983) (citation omitted).

In removal proceedings specifically, competency turns on a

credibility determination: the IJ must decide whether someone is

honestly failing to understand the proceedings or is instead

putting on an act. E.g., Munoz-Monsalve v. Mukasey, 551 F.3d 1,

7 (1st Cir. 2008) (noting that “stumbl[es]” and “glitches” in

respondent’s exchange with the IJ “are more consistent with a

prevaricating petitioner than with a mentally incompetent one”).

Drawing that distinction requires the IJ to scrutinize facial

expressions, eye contact, tone of voice, body language -- all

those little details that a dry transcript cannot hope to

capture.

Ultimately, assessing the competency of individuals subject

to removal comes down to a balance between competing interests.

On the one hand, for someone navigating an unfamiliar legal

system while facing the daunting prospect of deportation,

procedural due process is a much-needed protection. See Rusu v.

United States Immigration & Naturalization Serv., 296 F.3d 316,

320-22 (4th Cir. 2002). To order the removal of someone unable

to participate meaningfully in his or her removal proceedings

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would make the whole process a charade. 1 On the other hand,

requests for continuances and medical evaluations can quickly

become a strategy of delay, delay, and more delay. Diop, for

instance, appeared in front of the IJ five separate times and

seized upon every conceivable basis to postpone his case. To

string out the proceedings on flimsy grounds risks prolonging

the stay of those who have no lawful basis for remaining in this

country.

C.

There is no question that the IJ in this case struck the

right balance by refusing Diop’s request for a separate mental

health evaluation. Petitioner’s due process argument falters at

the initial stage of the M-A-M analysis: there were no

sufficient indicia of Diop’s incompetency. “Mental competency is

not a static condition”; what matters is respondent’s mental

state at the time of the removal proceedings. M-A-M, 25 I&N Dec.

474 at 480. The only evidence that even comes close to

suggesting incompetency is the above-noted psychological

1In the removal context, for example, courts have required

safeguards to ensure meaningful participation if such

participation is in doubt. M-A-M, 25 I&N Dec. 474 at 481-83

(summarizing cases); accord 8 U.S.C. § 1229a(b)(3). Appropriate

safeguards include having the IJ actively aid in developing the

record or allowing a family member or guardian to assist the

respondent. Id. at 483. Because Diop was properly deemed

competent, however, the question of appropriate safeguards is

not one we need address.

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assessment of Diop taken mere days after his arrest. While past

mental history can certainly bear on competency, it is by no

means dispositive. See id. at 479. In this case, Diop denied any

history of mental health troubles, while his counsel had “no

reason to believe” that he suffered from “an ongoing medical

problem.” J.A. 137. In that context, a single snapshot of mental

health concerns taken ten months earlier can hardly represent

Diop’s state of mind when he arrived in immigration court.

Diop tried to prove this very point. In arguing before the

IJ for yet another continuance, he sought to portray his violent

behavior as an aberrant and isolated psychotic outburst brought

on by “lack of sleep.” J.A. 179. The strategy at that time

apparently was to demonstrate that his stable and non-violent

nature warranted a continued stay in the United States. Diop

submitted to the IJ mental health assessments conducted closer

in time to the removal proceedings, all of which indicated he

had been “cooperative with treatment,” found “no psychiatric

concerns” whatsoever, and recommended no further treatment or

medication. J.A. 171-72. By Diop’s own evidence then, he was

competent by the time he appeared before the IJ. Petitioner is

thus caught in a trap of his own design: he claimed a stable

condition before the IJ to stall for more time and incompetency

before the BIA to secure reversal of his removal order. We

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cannot credit a strategy that uses competency as a delay tactic

rather than a genuine defense.

Erring on the side of caution, the IJ nonetheless took

appropriate measures to assess Diop’s competency by holding a

separate hearing and inquiring specifically about his mental

health and ability to communicate with counsel. Her exchange

with Diop provided ample basis for a finding of competency.

Petitioner voiced no psychological concerns, understood that the

proceedings related to his immigration status, and raised only

one objection, which focused on the cost of making phone calls

to his attorney.

The Supreme Court has cautioned against flyspecking the

IJ’s questions or quibbling with the quality of respondent’s

answers. In determining competency, fact-finders cannot look to

“fixed or immutable signs which invariably indicate the need for

further inquiry”; instead they have to rely on a “wide range of

manifestations and subtle nuances.” Drope v. Missouri, 420 U.S.

162, 180 (1975). The IJ did what she deemed necessary to

ascertain Diop’s competency in full compliance with M-A-M. This

was not a case where the IJ sacrificed due process for

expediency. Far from it. Diop received one continuance after

another -- to prepare his case, to consult with counsel, to

request prosecutorial discretion, to receive a hearing on his

mental competency. There being no defect in these proceedings,

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we need not reach the question of prejudice. 2 The petition for

review is hereby denied.

PETITION FOR REVIEW DENIED

2 We also decline to consider petitioner’s argument

regarding withholding of removal. The BIA found that Diop failed

to raise his withholding claim before the IJ and failed to

submit the relevant application for relief or show prima facie

eligibility for relief in his appeal to the BIA. The Board did

not err in refusing to remand the case to permit him to apply

for withholding.

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