IRLI, on behalf of its client the Federation for American Immigration Reform, submitted a friend-of-the-court brief at the request of the Board of Immigration Appeals (BIA) to address the proper allocation of the burden of proof on issues regarding mental competency in immigration proceedings, and in particular whether an approach adopted by the U.S. Court of Appeals for the Ninth Circuit to mental incompetency in habeas corpus proceedings in the case of In Mason ex. rel. Marson v. Vasquez, 5 F.3d 1220 (9th Cir. 1993), provided the Board with guidance as to the burden of proof question in immigration proceedings.
In November 2015, the BIA issued an opinion in the case. The Board largely adopted our approach, and expressly distanced itself from dicta in Matter of M-A-M-, its prior mental incompetency case, that suggested that removal proceedings are very similar to criminal proceedings. It reemphasized the civil nature of immigration proceedings, including competency proceedings. The Board agreed with our position, which endorsed use of a habeas corpus model in the Ninth Circuit, that is, mental illness is not a static condition, and must be reevaluated if the passage of time indicates possible changes. The Board acknowledged IRLI for its contribution to the case.
At the time of briefing, we had no information as to the actual case history, which turned out to be a withholding of removal and “Convention Against Torture” claim by an aggravated felon from Haiti. The Immigration Judge had conducted extensive inquiries before finding the respondent competent to participate in his removal proceeding.