On November 2, 2015 the Board of Immigration Appeals (BIA or Board) “set forth a framework for allocation of the burden of proof for mental competency issues raised in immigration proceedings.” Relying on its precedent decision in Matter of M-A-M-, 25 I.&N. Dec. 474 (BIA 2011), the BIA distinguishing removal proceedings from criminal proceedings, inasmuch as the former can continue despite a respondent’s lack of competency, so long as the necessary safeguards found in the INA are in place. Accordingly, where indicia of incompetency are identified, the Government determines the appropriate person or entity to serve with the Notice To Appear (NTA), while the Immigration Judge (IJ) must prescribe the appropriate safeguards, rather than requiring either party to demonstrate a need. Additionally, the DHS must provide the IJ with materials relevant to the respondent’s mental capacity that it possesses. The Board thus held that neither party bears a formal burden of proof in immigration proceedings to establish mental competency, but where indicia of incompetence are identified, the IJ must determine if competency is established by a preponderance of the evidence. As such, a finding of competency is a finding of fact that the Board reviews to determine if it is clearly erroneous. Matter of J-S-S-, 267 I.&N. Dec. 679 (BIA 2015).
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