In the Matter of E-S-I
IRLI, on behalf of its client the Federation for American Immigration Reform (FAIR), submitted a friend-of-the-court brief at the request of the Board of Immigration Appeals (BIA) to address who must be served with a Notice to Appear (NTA) where the alien charged is mentally incompetent, in three circumstances: When the alien is (1) confined in an institution, (2) confined in an institution not operated by or affiliated with the U.S. Department of Homeland Security (DHS), and (3) not confined in an institution. The BIA then asked (4) what information should the DHS consider when making a determination about whether or not a person is mentally incompetent for purposes of serving the NTA, and (5) what is the appropriate action for the Immigration Judge (IJ) to take if the DHS does not properly serve a mentally incompetent person.
In addressing the first issue, IRLI examined the statutory language found in the United States Code which makes no differentiation between competent and incompetent aliens in relation to removal proceedings. However, a government regulation, 8 C.F.R. § 103.8, does outline the service requirements for minors as well as incompetent individuals. IRLI also provided detailed information for proper service upon individuals being confined both by DHS and in institutions.
IRLI noted that DHS is not responsible for making a competency determination at the time of service. Unless being confined by DHS, the agency does not evaluate the competency of the alien. Additionally, Matter of M-A-M, 21 I. & N. Dec. 474 (BIA 2001), provided elements for making relevant competency determinations.
Lastly, IRLI noted that a failure to disclose such relevant material to the Immigration Judge (IJ) may be grounds for a continuance of the proceedings. The continuance would give the IJ an opportunity to determine if a competency evaluation is necessary or, in the case of a BIA appeal, if it is necessary for the case to be reconsidered by the IJ.