E-S-I-: Serving Immigration Notice When Competency Is in Doubt

If a family member has difficulty understanding removal proceedings, receiving the paperwork may be only part of the problem. Someone who can help them respond also needs to know what is happening. In Matter of E-S-I-, 26 I&N Dec. 136 (BIA 2013), the Board of Immigration Appeals explained whom the government should serve with a notice to appear when signs of mental incompetency are apparent.

The case turned on practical gaps in the proof: What authority did the detention official who received notice actually hold, and was another recipient really a relative who had been properly served? The Board required more work on those questions. It vacated the judge’s termination order, reinstated removal proceedings and returned the case for application of its guidance. E-S-I-.

A second notice followed an earlier service problem

The man was a Nigerian citizen admitted to the United States as a lawful permanent resident in October 1980. In January 2009, DHS issued a notice to appear charging him as removable on an aggravated-felony ground. In September 2010, the immigration judge terminated proceedings without prejudice because service had been improper. The Board affirmed that result in March 2011. E-S-I-.

The government knew of mental-health concerns when the first notice was issued because the man had been transferred from a psychiatric hospital into DHS custody. A new notice followed on March 11, 2011. In December 2011, the judge again terminated proceedings, this time with prejudice, finding both a lack of competency to participate and another failure to comply with the service requirements. DHS appealed. E-S-I-.

The parties disagreed about who needed to receive the notice. DHS argued that the detention facility was outside the regulation’s reference to a penal or mental institution, and relied on service on a detention official and a person it described as the man’s cousin. The man argued that the warden should have been served and that the rule requiring service on a person with whom he resided had not been satisfied. E-S-I-. E-S-I-.

The regulation protects people who may need help responding

The current service regulation, 8 C.F.R. section 103.8(c)(2), distinguishes service on confined people from service in cases of mental incompetency. For the latter, whether the person is confined or not, it requires service on the person with whom they reside and, whenever possible, a near relative, guardian, committee or friend. E-S-I- explained how those provisions work together when competency concerns are apparent. E-S-I-. E-S-I-.

The Board connected that requirement to a practical purpose: A responsible recipient can help ensure attendance, communicate with the court and counsel, and supply information relevant to the case. It interpreted the rule to reach a person able to provide that assistance, rather than simply anyone sharing the same location. E-S-I-. E-S-I-.

In detention, actual authority mattered more than the official’s title

For someone confined in a penal or mental institution, the Board read “in charge” to mean the head official or, at minimum, a person with authority over the individual’s detention. An authorized delegate could accept service. That allowed the inquiry to focus on the official’s actual role rather than requiring one particular job title. E-S-I-. E-S-I-.

The Board applied the requirement for an institutional authority or delegate across custodial settings. Under the provision for a person with whom the individual resides, a detained person’s residence is the setting in which they are held. A responsible official at that institution can satisfy that role; another resident of the institution does not qualify merely by living there. E-S-I-. E-S-I-.

DHS proposed the Field Office Director as the appropriate recipient because of that official’s legal authority over detainees. The Board explained that the director generally was not located at the detention facility and therefore could not fairly be treated as a person with whom the detained individual resided. A copy could still be sent to that official. The required service inquiry remained directed to a responsible person at the place of detention. E-S-I-. E-S-I-.

For a person living outside detention, the Board similarly required a responsible household recipient, if available. It explained that the recipient could not be a minor or another person lacking competency. The purpose was meaningful assistance with the proceedings. E-S-I-.

Relatives, guardians and counsel had distinct roles

The Board also required service, whenever possible, on a near relative, guardian, committee or friend. It directed DHS to inquire about a court-appointed guardian, especially when someone had come from a mental institution, and to serve a guardian once identified. Existing background records could help locate family or other people close to the individual. E-S-I-. E-S-I-.

The relationship needed evidentiary support. The Board said DHS should demonstrate the connection between the individual and the person served. Describing a recipient as a cousin was therefore a factual claim to establish, rather than a substitute for evidence of the relationship. E-S-I-.

The Board separately addressed people already represented by counsel when the notice was issued. It explained that notice to counsel did not replace the additional service required on a responsible person with whom the individual resided. The lawyer’s role and the responsible recipient’s role had to be considered separately under the service framework. E-S-I-.

When competency concerns appeared changed the next step

If DHS was aware of signs of incompetency when it served the notice, the Board directed it to use the protective service requirements then. A transfer from a psychiatric hospital, as in this case, was a concrete example. The immigration judge would ultimately determine competency; service safeguards did not have to await that final determination when the signs were already apparent. E-S-I-.

The Board distinguished concerns identified at a master calendar hearing soon after service from concerns arising later. At the early hearing, if the judge found incompetency or sufficient signs to invoke the protective rules, DHS should receive a continuance to accomplish proper service. E-S-I-.

If concerns arose later and the person needed safeguards, the judge was to evaluate whether serving the notice again would help the case proceed fairly. If so, a continuance could provide time for that step. That required attention to the timing and circumstances of the difficulty, rather than assuming the same procedural response for every case. E-S-I-. E-S-I-.

The record left two service questions unanswered

DHS said it had served the March 2011 notice on the man, who refused to sign, a detention officer, and the person it called his cousin. It identified the officer as an Assistant Officer in Charge or Supervisory Detention and Deportation official. But the recipient’s identity was not apparent from the notice itself. E-S-I-. E-S-I-.

The record lacked proof of the officer’s place in the detention center’s chain of authority, functions and responsibility for detainees. The question was whether the official actually held the authority required by the Board’s interpretation. The title alone left that connection unproved. E-S-I-.

The purported relative presented a separate gap. The Board found insufficient evidence that the recipient was a cousin or near relative, and insufficient evidence that he had been properly served. The parties could supply additional evidence on remand to address those questions. E-S-I-.

Proceedings were reinstated for further work on service

The Board concluded that DHS had not shown compliance under its newly explained interpretation. It vacated the immigration judge’s decision, reinstated removal proceedings and remanded for further proceedings and a new decision. The parties were to have an opportunity to add evidence about service; if necessary, the judge should allow DHS time to serve the notice properly. E-S-I-.

The judge had also relied on the man’s inability to represent himself and insufficient assistance. The Board left that specific representation issue for later consideration while its new service guidance was applied. Its service remand was the immediate procedural result. E-S-I-.

Match the service record to the person’s circumstances

For a legal review, put each notice beside its service record. Identify who received it, where they were, what their role was and what proves that role. For a detention official, the useful question concerns authority at the facility or a delegation to receive service. For a claimed relative, it concerns the relationship and the evidence of delivery.

Then build the timeline of competency concerns. Bring existing hospital-transfer records, evaluations, hearing exchanges and observations showing when the difficulties became apparent. Identify any responsible household member, guardian, close relative or counsel already involved. These are practical ways to address the gaps the Board identified, rather than assumptions that one label or one signature resolves service.

Our M-A-M- analysis covers competency assessment and safeguards more broadly. J-R-R-A- addresses the reliability of testimony. M-R-A- concerns proof that a regular-mail hearing notice never arrived. E-S-I- adds the distinct question of who must receive the initiating notice when competency concerns call for protective service.