J-S-S, 26 I. & N. Dec. 679

Respondent: Haitian lawful permanent resident convicted in 2012 of two controlled-substance offenses; charged as removable for an aggravated-felony drug-trafficking conviction.
Respondent presented extensive mental-health history (childhood hallucinations, prior forensic evaluations in state criminal cases, treatment records) and counsel argued indicia of incompetency.
DHS informed the court of respondent’s mental-health diagnosis and potential class membership in Franco-Gonzalez; IJ conducted an individualized competency inquiry.
Immigration Judge found indicia of incompetency but ultimately concluded the respondent was competent to proceed and denied withholding of removal as the respondent was convicted of a particularly serious crime; IJ ruled against other forms of relief.
Board of Immigration Appeals (BIA) reviewed: (1) proper allocation/standard of proof for competency determinations, (2) whether IJ’s competency finding was clearly erroneous, and (3) whether IJ erred on the withholding/particular-social-group/CAT analyses; remanded for further proceedings on several issues.

Issue	Respondent's Argument	DHS's Argument	Held
Allocation of burden when indicia of incompetency exist	Respondent: he must bear initial burden to raise competency; once raised, DHS must prove competence by preponderance	DHS: no party bears a formal burden; IJ must inquire and determine competence by preponderance	Neither party bears a formal burden; when indicia appear, IJ must decide competency by preponderance of the evidence
Applicable standard of proof for competency	Respondent: preponderance after indicia shown	DHS: preponderance (agreed)	Preponderance of the evidence applies
Standard of review for IJ competency findings	Respondent: implied challenge to IJ finding	DHS: IJ findings factual	IJ’s competency finding is a factual determination reviewed for clear error; here, not clearly erroneous at last hearing but must be reassessed on remand as competency can change
Withholding/CAT and particularly serious crime / particular social group analysis	Respondent: IJ erred in (1) conflating two convictions when finding particularly serious crime and (2) failing to consider past harm in PSG and CAT analyses	DHS: IJ denied relief based on crime seriousness and credibility; opposed relief	BIA agreed IJ relied on wrong offense facts for the particularly-serious-crime analysis (error) and found PSG/CAT analysis incomplete; remanded for reevaluation and further evidence including mental-competency reassessment

Mason ex rel. Marson v. Vasquez, 5 F.3d 1220 (9th Cir. 1993) (federal habeas approach: once evidence triggers inquiry, court determines competence by preponderance)
Cooper v. Oklahoma, 517 U.S. 348 (U.S. 1996) (endorsing preponderance standard over higher standards for competency to stand trial)
Brue v. Gonzales, 464 F.3d 1227 (10th Cir. 2006) (removal may proceed despite incompetency if appropriate safeguards applied)
Thompson v. Keohane, 516 U.S. 99 (U.S. 1995) (competency determinations are factual conclusions)
Maggio v. Fulford, 462 U.S. 111 (U.S. 1983) (describing competence findings as factual)