26 I. & N. Dec. 773
BIA2016Background
- Respondent, a lawful permanent resident from Jordan, faced removal proceedings based on an aggravated felony conviction. Proceedings began February 19, 2014.
- Immigration Judge (IJ) moved the case to a mental-health docket after concerns about the respondent’s behavior and ordered a psychiatric evaluation.
- Respondent refused to attend multiple hearings; the IJ found him incompetent based on documentary evidence (psychological evaluation, ICE mental-health review) and waived his presence.
- The IJ concluded existing safeguards (evaluations, venue change, continuances) were insufficient, rejected administrative closure and counsel as effective safeguards, and terminated proceedings without prejudice.
- DHS appealed, arguing the IJ failed to clarify competency findings and should have considered additional safeguards (e.g., re-service under Matter of E‑S‑I‑ and legal representation). Respondent obtained counsel on appeal.
Issues
| Issue | Plaintiff's Argument (DHS) | Defendant's Argument (Respondent) | Held |
|---|---|---|---|
| Whether the IJ’s competency determination was clear | IJ failed to make a clear finding because respondent refused to appear | IJ properly found respondent incompetent based on documentary evidence | Board found no clear error in the IJ’s incompetency finding but allowed reassessment on remand |
| Standard of review for adequacy of safeguards | Board should defer to IJ discretion | IJ discretion should be reviewed de novo by Board | Board holds adequacy of safeguards is reviewed de novo under 8 C.F.R. §1003.1(d)(3)(ii) |
| Whether IJ properly concluded no adequate safeguards existed | DHS: IJ should have considered additional safeguards (re-service, counsel, continuances) before terminating | Respondent: termination was appropriate given evaluation that counsel would be ineffective and repeated nonattendance | Board reversed termination and remanded for IJ to consider additional safeguards (notably legal representation) and other measures before terminating |
| Use of re-service/continuance and administrative closure | DHS: IJ should evaluate re-service (Matter of E‑S‑I‑) and continuance requests to gather evidence from others; consider administrative closure while exploring options | Respondent: termination appropriate now | Board directs IJ to assess good cause for continuances/re-service and to consider administrative closure where appropriate; remand ordered |
Key Cases Cited
- Davis v. Walker, 745 F.3d 1303 (9th Cir. 2014) (district court discretion to craft remedies to protect incompetent litigants)
- Ridore v. Holder, 696 F.3d 907 (9th Cir. 2012) (Board may weigh facts underlying an IJ’s discretionary determination de novo)