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Interim Decision #3711

Matter of M-A-M-, Respondent

Decided May 4, 2011

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

(1) Aliens in immigration proceedings are presumed to be competent and, if there are

no indicia of incompetency in a case, no further inquiry regarding competency is required.

(2) 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.

(3) If there are indicia of incompetency, the Immigration Judge must make further inquiry

to determine whether the alien is competent for purposes of immigration proceedings.

(4) If the alien lacks sufficient competency to proceed, the Immigration Judge will evaluate

appropriate safeguards.

(5) Immigration Judges must articulate the rationale for their decisions regarding

competency issues.

FOR RESPONDENT: Janet B. Beck, Esquire, Houston, Texas

FOR THE DEPARTMENT OF HOMELAND SECURITY: Elliot Selle, Assistant Chief

Counsel

BEFORE: Board Panel: NEAL, Acting Chairman; GREER, Board Member; and

KENDALL CLARK, Temporary Board Member.

GREER, Board Member:

In a decision dated June 16, 2010, an Immigration Judge found the

respondent removable under sections 237(a)(2)(A)(ii) and (B)(i) of the

Immigration and Nationality Act, 8 U.S.C. §§ 1227(a)(2)(A)(ii) and (B)(i)

(2006), and concluded that he is ineligible for relief from removal. The

respondent has appealed from that decision and has submitted a motion

to remand, arguing, in part, that the Immigration Judge did not assess his

mental competency. In this decision, we set forth a framework for

Immigration Judges to determine whether a respondent is sufficiently

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competent to proceed and whether the application of safeguards is warranted.

The record will be remanded to the Immigration Judge.

I. FACTUAL AND PROCEDURAL HISTORY

The respondent is a native and citizen of Jamaica who was admitted

to the United States as a lawful permanent resident on February 19, 1971,

when he was 10 years old. On July 31, 2008, the Department of Homeland

Security (“DHS”) served the respondent with a Notice to Appear (Form I-862),

charging that he is removable under section 237(a)(2)(A)(ii) of the Act on the

basis of his conviction for two or more crimes involving moral turpitude. The

DHS subsequently amended the allegations and lodged additional charges,

charging the respondent with removability under section 237(a)(2)(B)(i) of the

Act, as an alien convicted of a controlled substance violation, and under

section 237(a)(2)(A)(iii), as an alien convicted of a drug-trafficking aggravated

felony pursuant to section 101(a)(43)(B) of the Act, 8 U.S.C. § 1101(a)(43)(B)

(2006).

When the respondent first appeared before an Immigration Judge for

a master calendar hearing on September 14, 2009, he had difficulty answering

basic questions, such as his name and date of birth, and he told the

Immigration Judge that he had been diagnosed with schizophrenia. He also

indicated that he needed medication. At the second hearing, on October 21,

2009, the respondent indicated that he had a history of mental illness that was

not being treated in detention. The respondent requested a change of venue

to be closer to his attorney and family, but the request was denied. Additional

hearings were held on November 4, 2009, December 7, 2009, January 25,

2010, and April 1, 2010. During those hearings, further reference was made

to the respondent’s mental illness and he asked to see a psychiatrist.

On June 16, 2010, a different Immigration Judge convened the final merits

hearing. At that time, psychiatric evaluations and reports about the respondent

from New York State’s Office of Mental Health were included in the record.

The Immigration Judge asked the respondent about his mental health and

treatment. Specifically, the Immigration Judge asked the respondent whether

he was able to proceed with the hearing, and the respondent answered that

he would do the best he could.

Initially, the respondent indicated that he could not represent himself but,

upon further questioning by the Immigration Judge, said he “believed” that he

could answer the questions put to him by the Immigration Judge and the DHS

attorney. The Immigration Judge proceeded with the merits hearing, asking

the respondent questions about his entry into the United States, his criminal

convictions, and his fear of returning to Jamaica. Throughout the proceedings,

the respondent appeared pro se.

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In her decision, the Immigration Judge summarized the respondent’s mental

health history but did not make an explicit finding regarding his mental

competency. The Immigration Judge found the respondent removable on the

charges relating to his convictions for crimes involving moral turpitude and

controlled substance violations, but not on the aggravated felony charge. The

Immigration Judge denied the respondent’s application for cancellation

of removal under section 240A(a) of the Act, 8 U.S.C. § 1229b(a) (2006),

in the exercise of discretion. She also denied his applications for asylum and

withholding of removal because the respondent did not establish a nexus

or harm that was sufficiently severe to constitute persecution. The

Immigration Judge also found the respondent ineligible 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).

The respondent, now represented, has appealed from the Immigration

Judge’s decision and challenges the decision on the merits. The respondent

has also submitted a motion to remand arguing, in part, that the Immigration

Judge failed to properly assess his mental competency.

II. ISSUES

This case presents three questions related to mental competency

determinations: (1) When should Immigration Judges make competency

determinations? (2) What factors should Immigration Judges consider and

what procedures should they employ to make those determinations? (3) What

safeguards should Immigration Judges prescribe to ensure that proceedings are

sufficiently fair when competency is not established?

III. ANALYSIS

We recognize that this is a difficult area of the law and that our decision

today addresses a limited set of questions regarding aliens with competency

issues in immigration proceedings. Nevertheless, our goal is to ensure that

proceedings are as fair as possible in an unavoidably imperfect situation.

To that end, this decision will provide a framework for analyzing cases

in which issues of mental competency are raised.1

1

Our analysis is largely consistent with agency practice as reflected

in the Immigration Judge Benchbook. Immigration Judge Benchbook, Introductory Guides,

Mental Health Issues, http://www.justice.gov/eoir/vll/benchbook/tools/MHI/.

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A. Presumption of Competency

As a threshold matter, we find that an alien is presumed to be competent

to participate in removal proceedings. See, e.g., Munoz-Monsalve v. Mukasey,

551 F.3d 1, 6 (1st Cir. 2008) (finding that it is the alien’s burden to first

raise the issue of competency); cf. United States v. Shan Wei Yu, 484 F.3d 979,

985 (8th Cir. 2007) (stating that in a criminal proceeding, competency

is “presumed ‘absent some contrary indication’ arising from irrational

behavior, the defendant’s demeanor, and any prior medical opinions

addressing the defendant’s competency” (quoting United States v. Long Crow,

37 F.3d 1319, 1325 (8th Cir. 1994))). See generally Valenzuela-Solari

v. Mukasey, 551 F.3d 53, 57 (1st Cir. 2008) (finding that if there is a claim

of language disability, the alien must ordinarily raise it first in the agency

proceedings).

Absent indicia of mental incompetency, an Immigration Judge is under

no obligation to analyze an alien’s competency. Munoz-Monsalve v. Mukasey,

551 F.3d at 6 (finding that an Immigration Judge’s failure to sua sponte order

a competency evaluation did not violate the alien’s due process rights where

he was represented, his attorney did not request an evaluation, and the record

did not contain evidence of a lack of competency); Nelson v. INS, 232 F.3d

258, 261-62 (1st Cir. 2000) (finding that health-related complaints such

as headache and poor memory do not rise to the level of mental

incompetency).

The Act and the regulations contemplate circumstances in which

competency concerns trigger the application of appropriate safeguards.

We will examine the governing statutory and regulatory authority,

as interpreted by case law, to address the issues presented.

B. Legal Authority

1. Statutory and Regulatory Provisions

The Act acknowledges that aliens in proceedings may be mentally

incompetent. Specifically, the Act provides as follows:

If it is impracticable by reason of an alien’s mental incompetency for the alien

to be present at the proceeding, the Attorney General shall prescribe safeguards

to protect the rights and privileges of the alien.

Section 240(b)(3) of the Act, 8 U.S.C. § 1229a(b)(3) (2006). The Act’s

invocation of safeguards presumes that proceedings can go forward, even

where the alien is incompetent, provided the proceeding is conducted fairly.

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The regulations provide guidance regarding the treatment of aliens who

lack mental competency. An incompetent alien must be served with the

Notice to Appear in person. 8 C.F.R. § 103.5a(c)(2) (2010). If the alien is

confined in a penal or mental institution or hospital, service generally must be

made on the alien, as well as the person in charge of the institution, although

if the alien is incompetent, service can only be made on the person in charge

of the institution where the alien is confined. 8 C.F.R. § 103.5a(c)(2)(i). If the

alien is not confined, service must be made on the person with whom the alien

resides. 8 C.F.R. § 103.5a(c)(2)(ii). Further, “whenever possible, service shall

also be made on the near relative, guardian, committee, or friend.” Id.

Additional requirements are prescribed in the regulations to ensure that

an incompetent alien is afforded an adequate opportunity to present his or her

case during a hearing. Immigration Judges may not accept an admission

of removability from an unrepresented respondent who is incompetent and

unaccompanied. 8 C.F.R. § 1240.10(c) (2010). When it is impracticable for

the respondent to be present at the hearing because of mental incompetency,

the attorney, legal representative or guardian, near relative, or friend who was

served with a copy of the Notice to Appear is permitted to appear on behalf

of the respondent. 8 C.F.R. §§ 1240.4, 1240.43 (2010). If such a person

cannot be found or fails or refuses to appear, the regulations provide that the

“custodian of the respondent shall be requested to appear on behalf of the

respondent.” Id.

If an Immigration Judge determines that a respondent lacks sufficient

competency to proceed with the hearing, the Immigration Judge will evaluate

which available measures would result in a fair hearing. Immigration Judges

“shall prescribe safeguards to protect the rights and privileges of the alien.”

Section 240(b)(3) of the Act; see also 8 C.F.R. § 1003.10(b) (2010).

Although the Act and the regulations provide direction for handling cases

in which competency is an issue, they do not set forth the process that

an Immigration Judge should use to assess the competency of an alien

appearing in Immigration Court. This decision sets out a framework for that

purpose.

2. Competency for Purposes of Immigration Proceedings

Although immigration proceedings are civil in nature, the law regarding

mental competency issues in criminal proceedings is well developed, and

we consider it instructive. The United States Supreme Court has held in the

criminal context that a person is not competent to stand trial if “he lacks the

capacity to understand the nature and object of the proceedings against him,

to consult with counsel, and to assist in preparing his defense.” Drope

v. Missouri, 420 U.S. 162, 171 (1975).

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Unlike in criminal proceedings, a lack of competency in civil immigration

proceedings does not mean that the hearing cannot go forward; rather,

procedural fairness is required. In immigration proceedings, the Fifth

Amendment entitles aliens to due process of law. Reno v. Flores, 507 U.S.

292, 306 (1993). Included in the rights that the Due Process Clause requires

in removal proceedings is the right to a full and fair hearing. Matter of M-D-,

23 I&N Dec. 540, 542 (BIA 2002) (citing Landon v. Plasencia, 459 U.S. 21,

32-33 (1982)). “A removal hearing must be conducted in a manner that

satisfies principles of fundamental fairness.” Matter of Beckford, 22 I&N Dec.

1216, 1225 (BIA 2000); see also Shaughnessey v. United States ex rel. Mezei,

345 U.S. 206, 212 (1953) (stating that immigration proceedings must conform

to traditional standards of fairness encompassed in due process).

To meet traditional standards of fundamental fairness in determining

whether an alien is competent to participate in immigration proceedings,

Immigration Judges must accord aliens the specific “rights and privileges”

prescribed in the Act. Section 240(b)(3) of the Act. For example, aliens “shall

have the privilege of being represented” at no expense to the Government.

Sections 240(b)(4)(A), 292 of the Act, 8 U.S.C. §§ 1229a(b)(4)(A), 1362

(2006). In addition, the Act requires that an alien have a “reasonable

opportunity” to examine and present evidence and to cross-examine witnesses.

Section 240(b)(4)(B) of the Act; see also 8 C.F.R. § 1240.10(a)(4). Therefore,

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.

C. Framework for Cases Presenting Competency Issues

1. Indicia of Incompetency

In cases involving aliens with issues of mental competency, Immigration

Judges will need to consider whether there is good cause to believe that the

alien lacks sufficient competency to proceed without safeguards. Indicia

of incompetency include a wide variety of observations and evidence. For

example, the Immigration Judge or the parties may observe certain behaviors

by the respondent, such as the inability to understand and respond to questions,

the inability to stay on topic, or a high level of distraction. Second, the record

may contain evidence of mental illness or incompetency. This could include

direct assessments of the respondent’s mental health, such as medical reports

or assessments from past medical treatment or from criminal proceedings,

as well as testimony from medical health professionals. It may also include

evidence from other relevant sources, such as school records regarding special

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education classes or individualized education plans; reports or letters from

teachers, counselors, or social workers; evidence of participation in programs

for persons with mental illness; evidence of applications for disability benefits;

and affidavits or testimony from friends or family members.

The DHS will often be in possession of relevant evidence, particularly

where the alien is detained. The DHS has an obligation to provide the court

with relevant materials in its possession that would inform the court about the

respondent’s mental competency. 8 C.F.R. § 1240.2(a) (2010) (“[DHS]

counsel shall present on behalf of the government evidence material to the

issues of deportability or inadmissibility and any other issues that may require

disposition by the immigration judge.”); see also Matter of S-M-J-, 21 I&N

Dec. 722, 726-27 (BIA 1997) (discussing generally the DHS’s role

in introducing evidence), disapproved of on other grounds, Ladha v. INS,

215 F.3d 889 (9th Cir. 2000).

Mental competency is not a static condition. “It varies in degree. It can

vary over time. It interferes with an individual’s functioning at different

times in different ways.” Indiana v. Edwards, 554 U.S. 164, 175 (2008).

As a result, Immigration Judges need to consider indicia of incompetency

throughout the course of proceedings to determine whether an alien’s

condition has deteriorated or, on the other hand, whether competency has been

restored.

Even if an alien has been deemed to be medically competent, there may

be cases in which an Immigration Judge has good cause for concern about the

ability to proceed, such as where the respondent has a long history of mental

illness, has an acute illness, or was restored to competency, but there is reason

to believe that the condition has changed. In such cases, Immigration Judges

should apply appropriate safeguards.

On the other hand, we also recognize that there are many types of mental

illness that, even though serious, would not prevent a respondent from

meaningfully participating in immigration proceedings. In other words,

a diagnosis of mental illness does not automatically equate to a lack

of competency.

2. Measures To Assess Competency

When there are indicia of incompetency, an Immigration Judge must take

measures to determine whether a respondent is competent to participate

in proceedings. The approach taken in any particular case will vary based

on the circumstances of the case.

For instance, an Immigration Judge may modify the questions posed to the

respondent to make them very simple and direct. The inquiries made should

include questions about where the hearing is taking place, the nature

of the proceedings, and the respondent’s state of mind. In addition, an

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Immigration Judge might ask the respondent whether he or she currently takes

or has taken medication to treat a mental illness and what the purpose and

effects of that medication are. Proceedings may also be continued to allow the

parties to gather and submit evidence relevant to these matters, such as medical

treatment reports, documentation from criminal proceedings, or letters and

testimony from other third party sources that bear on the respondent’s mental

health.

Another measure available to Immigration Judges is a mental competency

evaluation. See, e.g., Matter of J-F-F-, 23 I&N Dec. 912, 915 (A.G. 2006)

(noting that at the Immigration Judge’s request, the DHS arranged for

a psychiatric evaluation of a detained alien, which led the psychiatrist

to conclude that the alien understood the proceedings and wanted to proceed

with the hearing). Immigration Judges can also permit a family member

or close friend to assist the respondent in providing information. In addition,

Immigration Judges can docket or manage the case to facilitate the

respondent’s ability to obtain medical treatment and/or legal representation.

For example, a continuance or motion to change venue may be granted

to enable a respondent to be closer to family or available treatment programs.

Immigration Judges can continue proceedings to allow for further evaluation

of competency or an assessment of changes in the respondent’s condition.

The Immigration Judge must weigh the results from the measures taken and

determine, under the test for competency set out above, whether the respondent

is sufficiently competent to proceed with the hearing without safeguards. Cf.

Matter of Sinclitico, 15 I&N Dec. 320 (BIA 1975) (finding that the respondent

was not sufficiently competent to voluntarily relinquish his citizenship where

he did not seem to understand the questions asked of him, his answers

to questions were not responsive, there was medical evidence of mental illness,

and the respondent’s brother testified regarding his mental illness). The

Immigration Judge must also articulate that determination and his or her

reasoning.

3. Safeguards

If an Immigration Judge determines that a respondent lacks sufficient

competency to proceed with the hearing, the statute provides that the

Immigration Judge “shall prescribe safeguards to protect the rights and

privileges of the alien.” Section 240(b)(3) of the Act. Based on the statutory

and regulatory parameters, we conclude that Immigration Judges have

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discretion to determine which safeguards are appropriate, given the particular

circumstances in a case before them.2

As noted above, the regulations provide guidance regarding safeguards

to protect aliens who otherwise lack sufficient competency to meaningfully

participate in proceedings. For example, the regulations prohibit Immigration

Judges from accepting an admission of removability from an unrepresented

alien who is incompetent and provide that when an alien is mentally

incompetent, the attorney, near relative, or friend who was served with a copy

of the Notice to Appear is permitted to appear on the respondent’s behalf.

8 C.F.R. §§ 1240.4, 1240.10(c), 1240.43. If such a person cannot be found

or fails or refuses to appear, the regulations provide that the respondent’s

custodian “shall be requested to appear on behalf of the respondent.” 8 C.F.R.

§§ 1240.4, 1240.43.

Case law also provides guidance to Immigration Judges for determining

how they may fairly proceed when an alien lacks competency. We have held

that an alien’s due process rights were not violated in a deportation hearing

where he was represented by an attorney who was able to introduce evidence

and cross-examine witnesses, a doctor testified regarding his medical

condition, and the respondent appeared to testify intelligently and rationally.

Matter of H-, 6 I&N Dec. 358 (BIA 1954). In addition, the Attorney General

has stated that “[i]t is appropriate for Immigration Judges to aid in the

development of the record, and directly question witnesses.” Matter of J-F-F-,

23 I&N Dec. at 922; see also section 240(b)(1) of the Act (providing that

Immigration Judges shall “interrogate, examine, and cross-examine the alien

and any witnesses”); 8 C.F.R. § 1240.11(a)(2) (2010) (“The immigration judge

shall inform the alien of his or her apparent eligibility to apply for any of the

benefits enumerated in this chapter and shall afford the alien an opportunity

to make application during the hearing.”).

Several Federal circuit courts have also considered the fairness

of proceedings involving aliens with indicia of mental incompetency. For

example, the United States Court of Appeals for the Ninth Circuit held that

the due process rights of an alien with a mental illness were not violated

where he was represented by counsel and was accompanied by a State

court-appointed conservator who testified fully on his behalf. Nee Hao Wong

v. INS, 550 F.2d 521, 523 (9th Cir. 1977). Similarly, the Tenth Circuit

concluded that procedural safeguards were in place and the alien had

2

Immigration Judges already alter or tailor the conduct of hearings in response

to a respondent’s limited capacity, such as in proceedings involving unaccompanied

minors. See Operating Policies and Procedures Memorandum 07-01: Guidelines for

Immigration Court Cases Involving Unaccompanied Alien Children (May 22, 2007),

http://www.justice.gov/eoir/efoia/ocij/oppm07/07-01.pdf.

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an opportunity to be heard at a meaningful time and in a meaningful manner

where the alien was represented and was able to answer the questions posed

to him and provide his version of the facts. Brue v. Gonzales, 464 F.3d 1227,

1232-34 (10th Cir. 2006). The Eighth Circuit also held that an Immigration

Judge was not required to determine competency where the respondent

answered the charges against him, testified in support of his claim for

withholding of removal, arranged for two witnesses to appear on his behalf,

was aware of the nature and object of the proceedings, and vigorously resisted

removal. Mohamed v. Gonzales, 477 F.3d 522, 526-27 (8th Cir. 2007).

In addition, the First Circuit concluded that an alien’s due process rights were

not violated where he was represented, his attorney does not request

an evaluation, and the record did not contain evidence of a lack of competency.

Munoz-Monsalve v. Mukasey, 551 F.3d at 6-8.

Drawing guidance from the regulations and legal precedent, we note that

there are a number of safeguards available to Immigration Judges, some

of which they may have already taken when initially assessing the

respondent’s competency. 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 Immigration

Judge will consider the facts and circumstances of an alien’s case to decide

which of these or other relevant safeguards to utilize. The Immigration Judge

must articulate his or her reasoning for the decision.

In some cases, even where the court and the parties undertake their best

efforts to ensure appropriate safeguards, concerns may remain. In these cases,

the Immigration Judge may pursue alternatives with the parties, such

as administrative closure, while other options are explored, such as seeking

treatment for the respondent.3

3

We recognize that the Act provides that certain aliens with mental illness are

inadmissible under section 212(a)(1)(A)(iii) of the Act, 8 U.S.C. § 1182(a)(1)(A)(iii) (2006),

or removable under section 237(a)(1)(A) for having been inadmissible at the time of entry

or at the time of adjustment of status. Proceedings involving inadmissibility under those

sections present a different legal scenario, which is not addressed in this decision.

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D. Summary of Legal Framework

To summarize, if there are no indicia of incompetency in an alien’s case,

no further inquiry regarding competency is required. 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 Immigration Judge 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 Immigration Judge will evaluate and

apply appropriate safeguards. The Immigration Judge must articulate the

rationale for his or her decision.

IV. CONCLUSION

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 Immigration Judge, the respondent had

difficulty answering questions, discussed his illness and need for medication,

and asked to see a psychiatrist.

Given these circumstances, we will remand the record to the Immigration

Judge to apply the framework articulated here. On remand, the Immigration

Judge should take steps to assess the respondent’s competency, make a finding

regarding his competency, apply safeguards as warranted, and articulate her

reasoning. The parties will have an opportunity on remand to present evidence

relevant to an evaluation of the respondent’s competency and any other

appropriate issues.

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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