Immigration Law Associates, PC

BIA Issues New Evidentiary Rule on Competency Determination

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The Board of Immigration Appeals (BIA) decided Matter of J-S-S- on November 2, 2015, where it adopted a new evidentiary rule regarding competency determinations in removal proceedings. 26 I&N Dec. 679.

In this case, respondent was a native and citizen of Haiti in removal proceedings.  He had filed an application for withholding of removal and had a long history of mental illness, which was well documented.  The issue was whether the respondent must bear the burden of proof to raise a competency issue or if, rather, it is up to the Immigration Judge to inquire and establish incompetency, with neither party bearing a formal burden of proof.

Although statutory safeguards are in place to protect the rights of aliens with mental health issues, Immigration Judges are challenged to provide fairness to incompetent aliens within a limited regulatory framework and sparse case law precedent.  The overarching rules for competency in immigration proceedings emanate from Matter of M-A-M-, under which aliens are presumed to be competent, and when indicia of incompetence is present, an Immigration Judge must make a competency determination.  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 are protected.

In Matter of J-S-S-, the BIA reasoned that to safeguard a respondent’s rights and privileges in determining competency issues it is appropriate to apply the allocation of the burden of proof employed in Federal habeas proceedings.  The Court ruled that “[n]either party bears a formal burden of proof […] 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.”


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