On June 29, 2016, the Board of Immigration Appeals (BIA or Board) ruled on the DHS appeal of an Immigration Judge’s (IJ’s) termination of removal proceedings without prejudice, where the IJ found the respondent not competent and held that adequate procedural safeguards were unavailable.
Charged with removal due to an aggravated felony conviction, respondent engaged in obstructive behavior, which caused the case to be continued for a psychiatric evaluation; venue was then changed to a mental health docket. After attending one hearing, respondent refused to attend any further hearings and, in his absence, the IJ concluded he was not competent based on record evidence, including a psychological evaluation and an ICE Form IHSC-883 Mental Health Review.
Finding the safeguards thus far implemented (evaluations, venue changes, continuances) insufficient to ensure fair proceedings, the IJ concluded that even added safeguards (attorney representation and administrative closure) would be ineffective and terminated proceedings without prejudice. DHS appealed, requesting a remand so the IJ could clarify his competency determination and consider other safeguards, including re-service of the Notice To Appear (NTA).
The BIA initially noted that IJs have discretion to determine appropriate safeguards “under the circumstances of a particular case.” Because the IJ’s determination in this regard is discretionary, the Board held it reviews such decisions de novo. Here, the BIA concluded that the question had become “whether sufficient relevant information can otherwise [i.e., in respondent’s absence] be obtained to allow challenges to removability and claims for relief to be presented”. Because in such situations, the parties can explore various alternatives with the IJ, the Board found it was improper for the court to have determined that no adequate safeguards were available without first attempting to take other steps, like pursuing the safeguard of legal representation, that would allow the case to continue.
Holding that counsel could interact with respondent, communicate with his family and caregivers, and speak to witnesses, the BIA remanded the record to the IJ to reassess the safeguard afforded by counsel and consider additional options in an effort to advance the case. Matter of M-J-K, 26 I&N Dec. 773 (BIA 2016).
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