J-S-S

Cite as 26 I&N Dec. 679 (BIA 2015) Interim Decision #3851

Matter of J-S-S-, Respondent

Decided November 2, 2015

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

(1) Neither party bears a formal burden of proof in immigration proceedings to

establish whether or not the respondent is mentally competent, but where indicia

of incompetency are identified, the Immigration Judge should determine if

a preponderance of the evidence establishes that the respondent is competent.

(2) An Immigration Judge’s finding of competency is a finding of fact that the Board of

Immigration Appeals reviews to determine if it is clearly erroneous.

FOR RESPONDENT: Christopher Strawn, Esquire, Seattle, Washington

FOR THE DEPARTMENT OF HOMELAND SECURITY: James T. Dehn, Associate

Legal Advisor

BEFORE: Board Panel: NEAL, Chairman; GREER, Board Member; and O’HERRON,

Temporary Board Member.

GREER, Board Member:

In a decision dated September 20, 2013, the Immigration Judge found

the respondent removable on his own admissions and determined that he is

ineligible for the relief from removal that he requested. The respondent has

appealed from that decision. The appeal will be sustained in part and

dismissed in part, and the record will be remanded to the Immigration

Judge for further proceedings.

On appeal, the respondent argues that the Immigration Judge improperly

evaluated his mental competency by misallocating the burden of proof and

that she erred in denying his applications for relief. Both the respondent

and the Department of Homeland Security (“DHS”) have stated their

positions on the proper allocation of the burden of proof and the applicable

standard of proof when an alien’s competency is at issue.1 In this decision,

we will set forth a framework for allocation of the burden of proof for

mental competency issues raised in immigration proceedings.

1

We also acknowledge the brief submitted by amicus curiae.

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I. FACTUAL AND PROCEDURAL HISTORY

The respondent is a native and citizen of Haiti who was admitted to the

United States as a lawful permanent resident on June 12, 1997. On

October 25, 2012, he was convicted of two controlled substance offenses.

The DHS served the respondent with a notice to appear on March 1, 2013,

charging that he is removable under section 237(a)(2)(A)(iii) of the

Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(A)(iii) (2012), as

an alien who was convicted of an aggravated felony drug trafficking crime

under section 101(a)(43)(B) of the Act, 8 U.S.C. § 1101(a)(43)(B) (2012).

In removal proceedings, the respondent admitted the factual allegations

and conceded the charge of removability through counsel. He also filed an

application for withholding of removal under section 241(b)(3)(A) of the

Act, 8 U.S.C. § 1231(b)(3)(A) (2012), and for protection under the

Convention Against Torture and Other Cruel, Inhuman or Degrading

Treatment or Punishment, adopted and opened for signature Dec. 10,

1984, G.A. Res. 39/46, 39 U.N. GAOR Supp. No. 51, at 197, U.N. Doc.

A/RES/39/708 (1984) (entered into force June 26, 1987; for the

United States Apr. 18, 1988) (“Convention Against Torture”).

The respondent filed a prehearing brief explaining his mental illness and

treatment. He has a long history of mental illness, starting in childhood,

when he began experiencing auditory and visual hallucinations. Prior to his

removal proceedings, the respondent was in criminal proceedings in the

State of Washington, during which the judge referred the respondent for

three separate forensic evaluations to determine his capacity to understand

the criminal charges and his ability to assist in his defense. The respondent

also provided his mental health records from a health center where he

sought mental health treatment and from a detention center where he was

detained for a period of time during his removal proceedings. In addition,

the respondent presented the testimony of the attorney who had represented

him in the State criminal proceedings.

The DHS filed a notice advising the Immigration Court that the

respondent’s mental health diagnosis rendered him a possible member of

the class certified in Franco-Gonzalez v. Holder, No. CV 10-02211-DMG

(DTBx), 2013 WL 8115423 (C.D. Cal. Apr. 23, 2013).2 In light of the

indicia of incompetency, the Immigration Judge made an individualized

assessment and determined that the respondent was competent to proceed.

In her September 20, 2013, decision, the Immigration Judge considered the

documentary evidence regarding the respondent’s mental health and noted

that he had not provided updated mental health records after April 4, 2013.

2

The DHS subsequently clarified at an August 5, 2013, hearing that the respondent is

not a member of the certified class because he is represented.

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The Immigration Judge also evaluated the respondent’s testimony at his

hearings and his ability to communicate with his attorney and assist in the

development of his case.

II. ISSUES

The issues before us involve the proper allocation of the burden of proof

and the applicable standard of proof in cases where Immigration Judges

make mental competency determinations.

III. ANALYSIS

A. Mental Competency in Immigration Proceedings

Although aliens in immigration proceedings are presumed to be

competent, when indicia of incompetency are present, an Immigration

Judge must make a competency determination. Matter of M-A-M-, 25 I&N

Dec. 474, 477, 480−81 (BIA 2011). An alien is competent for purposes of

immigration proceedings if he or she has a rational and factual

understanding of the nature and object of the removal proceedings, can

consult with an attorney or representative if there is one, and has

a reasonable opportunity to examine and present evidence and

cross-examine witnesses. Id. at 479. Unlike criminal proceedings, removal

proceedings can continue despite a respondent’s lack of competency, so

long as safeguards are in place to ensure that the respondent’s rights and

privileges under the Act are protected. See sections 240(b)(3), (4) of the

Act, 8 U.S.C. §§ 1229a(b)(3), (4) (2012); Matter of M-A-M-, 25 I&N Dec.

at 479; see also Brue v. Gonzales, 464 F.3d 1227, 1233 (10th Cir. 2006).

The respondent contends that he should bear the initial burden to raise

a competency issue, with the qualification that both the Immigration Judge

and the DHS have a duty to develop the record if either becomes aware of

indicia of incompetency. He further asserts that once indicia of an alien’s

incompetency are identified, the burden shifts to the DHS to show, by

a preponderance of the evidence, that the alien is competent to proceed or

that safeguards can be put in place to protect his or her due process rights.

In contrast, the DHS proposes we adopt a rule that when an Immigration

Judge identifies indicia of incompetency, neither party bears a formal

burden of proof to establish the respondent’s mental competency or

incompetency. Rather, at that point, the Immigration Judge should conduct

an inquiry to determine if a preponderance of the evidence establishes that

the respondent is mentally competent.

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B. Burden of Proof

Considering first the appropriate allocation of the burden of proof, we

find the DHS’s proposed rule to be more compatible with the structure of

the Act and the framework we established for assessing competency in

Matter of M-A-M-. The statutory structure and the governing regulations

do not place a burden to raise the issue of competency on the respondent

in removal proceedings. For example, according to the competency

regulations, where indicia of incompetency are apparent, the Government

determines the appropriate person or entity to be served with the notice to

appear. See 8 C.F.R. § 103.8(c)(2) (2015); see also Matter of E-S-I-,

26 I&N Dec. 136 (BIA 2013). In addition, under section 240(b)(3) of the

Act, the Immigration Judge is charged with prescribing safeguards when

they are found to be appropriate, rather than requiring either party to

demonstrate a need.

Consistent with the Act and the regulations, we have made clear that

indicia of incompetency may derive from evidence submitted during the

proceedings or through observations of the Immigration Judge. Matter of

M-A-M-, 25 I&N Dec. at 479−80. We have also clarified that the DHS is

obligated to provide the Immigration Judge with materials relevant to the

respondent’s mental competency that are in its possession. Id. at 480. This

collaborative approach enables both parties to work with the Immigration

Judge to fully develop the record regarding a respondent’s competency.

We find additional support for this approach in mental competency

jurisprudence of the United States Court of Appeals for Ninth Circuit, in

whose jurisdiction this case arises. In the context of Federal habeas corpus

proceedings, the court addressed the proper allocation of the burden of

proof when the mental competency of a petitioner is questioned. Mason

ex rel. Marson v. Vasquez, 5 F.3d 1220 (9th Cir. 1993). As the court stated,

Initially sufficient evidence must be presented to cause the court to conduct an

inquiry. After that point it is no one’s burden to sustain, rather it is for the court to

determine by a preponderance of the evidence whether the petitioner is mentally

competent . . . .

Id. at 1225 (following the procedure employed in Rees v. Peyton, 384 U.S.

312, 313−14 (1966)). The court specifically declined to follow the

allocation of the burden of proof in criminal cases. Id. at 1225−26; see also

Blair v. Martel, 645 F.3d 1151, 1154−56 (9th Cir. 2011).

The respondent contends that immigration proceedings are more akin to

Federal criminal trials, and he cites a Ninth Circuit case to support his

contention that once initial indicia of incompetency are presented, the DHS

should bear the burden of proving that the respondent is competent.

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United States v. Hoskie, 950 F.2d 1388, 1392 (9th Cir. 1991). We disagree.

Immigration proceedings are civil in nature, and substantive due process

concerns do not preclude removal of an alien who lacks competency when

appropriate safeguards have been applied. Brue v. Gonzales, 464 F.3d at

1233; see also Nee Hao Wong v. INS, 550 F.2d 521, 523 (9th Cir. 1977)

(“Deportation . . . is not a criminal proceeding, and the full trappings of

procedural protections that are accorded criminal defendants are not

necessarily constitutionally required for deportation proceedings.”).

Moreover, while most jurisdictions require a defendant to either prove

incompetency to stand trial or require the State to prove a defendant’s

competency, there are exceptions where the burden of proof is not

specifically allocated. See, e.g., Hensley v. State, 575 N.E.2d 1053,

1055−56 (Ind. Ct. App. 1991) (holding that the Indiana competency statute

did not violate due process by failing to specifically allocate the burden of

proving competency).

To safeguard a respondent’s rights and privileges in determining

competency issues in immigration proceedings, we find it appropriate to

apply the allocation of the burden of proof employed in Federal habeas

proceedings, which are also civil in nature. Sections 240(b)(3), (4) of the

Act; Matter of M-A-M-, 25 I&N Dec. at 478−79. Consequently, we

conclude that neither party bears a formal burden of proof in immigration

proceedings to establish whether or not the respondent is mentally

competent, but where indicia of incompetency are identified, the

Immigration Judge should determine if a preponderance of the evidence

establishes that the respondent is competent. Mason ex rel. Marson

v. Vasquez, 5 F.3d at 1225.

C. Standard of Proof

The parties agree that the preponderance of the evidence standard

applies in this context. This standard had been widely accepted nationally

and was specifically endorsed by the Supreme Court for competency issues

in criminal proceedings because of the significant interests at stake.

See Cooper v. Oklahoma, 517 U.S. 348, 355−62 (1996) (rejecting a clear

and convincing standard of proof in favor of a preponderance of the

evidence standard for competency to stand trial); see also 18 U.S.C.

§ 4241(d) (2012) (specifying that a preponderance of the evidence is the

standard for determining a defendant’s mental competency to stand trial in

Federal court). In our view, allowing the Immigration Judge to make an

independent competency determination based on the preponderance of the

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evidence assists in bringing competency issues to the fore and identifying

appropriate safeguards to allow the case to proceed.3

D. Review of Competency Determinations

A finding of competency is a finding of fact that the Board reviews to

determine if it is clearly erroneous. See Thompson v. Keohane, 516 U.S.

99, 111 (1995); Maggio v. Fulford, 462 U.S. 111, 117 (1983) (describing

a finding of competence as a “factual conclusion”); see also Massie ex rel.

Kroll v. Woodford, 244 F.3d 1192, 1194 (9th Cir. 2001) (stating that

a district court’s finding that a habeas petitioner is competent is

a factual determination, which is subject to clear error review); 8 C.F.R.

§ 1003.1(d)(3)(i) (2015) (providing that the Board reviews findings of fact

to determine if they are clearly erroneous).

We find that the Immigration Judge’s competency determination is not

clearly erroneous. In particular, upon identifying indicia of incompetence,

the Immigration Judge made a detailed competency determination that

comports with our decision in Matter of M-A-M-. She addressed all the

evidence of record, including that put forth by the respondent and the DHS.

In addition, she noted the respondent’s responses to her inquiries and her

own observations of his participation at the hearing. While recognizing that

the record did not contain updated psychological evaluations after April

2013, the Immigration Judge considered the relevant evidence that was

available, which was substantial. In effect, the Immigration Judge followed

the framework that we have set forth here.

E. Respondent’s Claim

The Immigration Judge denied the respondent’s application for

withholding of removal under section 241(b)(3)(B)(ii) of the Act and

8 C.F.R. § 1208.16(d)(2) (2013), finding that he was convicted of

a particularly serious crime. The respondent argues on appeal that the

Immigration Judge erred in making her determination.4 We agree. The

respondent was convicted of two separate controlled substance offenses

based on arrests in April and July of 2011. The Immigration Judge

3

In addition to determining competency, the Immigration Judge determines the

appropriate safeguards to allow a case to proceed. The parties may propose alternative

safeguards for the Immigration Judge’s consideration and advocate for or against

particular safeguards.

4

The respondent does not dispute that he is ineligible for asylum because he has been

convicted of an aggravated felony. See Section 208(b)(2)(B)(i) of the Act, 8 U.S.C.

§ 1158(b)(2)(B)(i) (2012) .

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considered only whether the first offense constituted a particularly serious

crime. However, she relied on the facts underlying the second offense in

conducting her analysis.

The Immigration Judge alternatively concluded that the respondent did

not otherwise establish statutory eligibility for withholding of removal. In

particular, the Immigration Judge rejected the respondent’s claims of

imputed political opinion and membership in a particular social group. We

find no clear error in the Immigration Judge’s findings that the respondent’s

unreliable testimony did not establish political opinion as a motive and that

his explanation for why he was harmed was contradicted by the testimony

of his mother and brother.

However, the respondent asserts that the Immigration Judge’s analysis

of his particular social group claim was incomplete because she did not

include his past harm in assessing whether he experienced harm rising to

the level of persecution in the past or whether his life or freedom would be

threatened in the future. She also did not consider the relevance of the past

harm to his claim under the Convention Against Torture. We agree and

will remand the record for further consideration of these issues.

IV. CONCLUSION

The Immigration Judge appropriately questioned the respondent’s

competency after he presented indicia of incompetency, namely medical

records reflecting his prior evaluation and treatment for mental health

issues, and the DHS notified the court of the respondent’s mental health

issues. We find no clear error in the Immigration Judge’s competency

determination at the time of the last hearing. However, mental competency

is not a static condition. Matter of M-A-M-, 25 I&N Dec. at 480.

Therefore, consistent with the framework articulated here, the Immigration

Judge should reevaluate the respondent’s competency on remand.

In addition, the Immigration Judge should revisit her analyses regarding

the particularly serious nature of the respondent’s crime, his particular

social group claim, and his claims under the Convention Against Torture.

She should then enter a new decision. On remand, the parties will have an

opportunity to submit additional evidence regarding the respondent’s

mental competency and his applications for relief. Given our disposition,

we decline to reach the other arguments presented, but the Immigration

Judge may address any issue she finds appropriate on remand.

ORDER: The appeal is sustained in part and dismissed in part.

FURTHER ORDER: The record is remanded to the Immigration

Judge for further proceedings consistent with the foregoing opinion and for

the entry of a new decision.

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