J-S-S-: The Judge Assessed Competency, While Other Protection Issues Required a New Decision

If mental-health problems make an immigration hearing difficult to follow, you and your family may be unsure who is responsible for bringing the problem to the judge’s attention. Medical records, the lawyer’s observations and the hearing itself can all matter. In Matter of J-S-S-, 26 I&N Dec. 679 (BIA 2015), the Board of Immigration Appeals explained how the judge should assess competency once signs of difficulty appear, without placing a formal burden of proof on either side.

The appeal also shows why each part of a decision needs its own review. The Board upheld the judge’s competency finding, while returning other issues concerning the man’s protection claims for a new decision. It directed another competency assessment on remand because a person’s condition can change over time. J-S-S-. J-S-S-.

The record contained evaluations, treatment records and a lawyer’s testimony

The man was a Haitian citizen admitted to the United States as a lawful permanent resident in June 1997. After two controlled-substance convictions in October 2012, the government charged him as removable on an aggravated-felony drug-trafficking ground. Through counsel, he admitted the factual allegations and conceded removability. He sought withholding of removal and protection under the Convention Against Torture, or CAT. J-S-S-.

His lawyer’s prehearing brief described mental illness beginning in childhood, including auditory and visual hallucinations. The evidence included three forensic evaluations obtained during earlier Washington criminal proceedings, records from a health center and a detention center, and testimony from the lawyer who had represented him in the criminal case. These were concrete sources of information about his ability to understand proceedings and assist with his case. J-S-S-.

The immigration judge recognized signs that warranted a competency inquiry. She considered the documents, his hearing testimony, his ability to communicate with counsel and his participation in developing the case. In September 2013, she found him competent, found him removable and denied the requested protection. His appeal challenged both the competency analysis and the protection rulings. J-S-S-. J-S-S-. J-S-S-.

The dispute was about who carried the burden once concerns appeared

The man proposed a two-step allocation. He would initially raise the competency issue, with the judge and government also responsible for developing the record when they became aware of concerns. Once signs of possible incompetency appeared, he argued, the government should prove by a preponderance of the evidence that he was competent or that safeguards could protect his rights. J-S-S-.

The government proposed a different approach: Neither party would carry a formal burden to establish competency or incompetency. The judge would conduct an inquiry and decide whether the evidence established competency by a preponderance. The Board adopted that approach. J-S-S-. J-S-S-. J-S-S-.

Its reasoning centered on a developed record and the judge’s responsibility to make the finding. Signs of difficulty could come from evidence submitted by either party or from the judge’s own observations. The government was obligated to provide relevant competency materials in its possession. That approach made the inquiry a shared effort to supply information for a decision, rather than a contest in which one side alone had to prove the person’s condition. J-S-S-.

The Board connected that approach to the immigration statute’s safeguards and participation rights. The current 8 U.S.C. section 1229a(b)(3)–(4) directs safeguards when mental incompetency makes the person’s presence impracticable and identifies rights concerning representation, examination and presentation of evidence, cross-examination and a complete record. The Board used those protections to explain the judge’s role in assessing competency and arranging appropriate help. J-S-S-. J-S-S-. J-S-S-.

The judge had to decide whether competency was more likely than not

The preponderance standard asks whether the evidence shows that the person is more likely than not competent to participate. The relevant abilities, as the Board explained through its M-A-M- framework, include understanding the nature and purpose of the proceedings, consulting with a representative if there is one, and having a reasonable opportunity to examine and present evidence and question witnesses. J-S-S-. J-S-S-. J-S-S-.

The parties agreed on the preponderance standard. Their disagreement concerned who should bear the formal burden. The Board considered the man’s argument for using a criminal-trial model, then explained why it adopted the collaborative approach used in federal habeas proceedings. Its reasoning distinguished the civil immigration process, in which safeguards can enable a case to proceed, from the criminal framework he proposed. J-S-S-. J-S-S-.

For a family preparing information for counsel, the useful question is how the condition affects actual participation. Can the person understand a question, explain relevant events, communicate with the lawyer and follow what the hearing is deciding? Evaluations and treatment records can help answer those questions. The judge must then assess the evidence and explain the finding under the governing test.

The Board upheld the competency finding on this record

The Board treated competency as a factual finding reviewed for clear error. It found that the judge had made a detailed assessment consistent with M-A-M-, addressed evidence from both sides, considered the man’s responses and observed his participation. Although updated psychological evaluations after April 2013 were missing, the relevant evidence that was available was substantial. The Board upheld the finding at the time of the last hearing. J-S-S-.

The current Board review regulation, section 1003.1(d)(3), distinguishes clear-error review of factual findings from fresh review of legal questions. It also directs further factfinding back to the immigration judge when needed. An appeal should therefore identify the actual problem: the rule the judge used, a material record fact the judge misunderstood, or evidence requiring further development.

The missing updates remain an important detail in understanding this decision. The Board evaluated the full record before that judge and at that hearing. On remand, it required a renewed competency assessment because mental functioning can change. For a new hearing, bring counsel information about later treatment, medication changes, evaluations and observed changes in the person’s ability to participate. J-S-S-. J-S-S-.

Separate errors required another look at the protection claims

The judge had found a particularly serious crime barred withholding of removal. The man had two controlled-substance convictions arising from arrests in April and July 2011. In analyzing whether the first offense was particularly serious, the judge relied on facts underlying the second offense. The Board agreed that this analysis needed to be revisited. Keeping each conviction and its supporting facts distinct was essential to that part of the review. J-S-S-. J-S-S-.

The Board also examined the judge’s alternative reasons for denying withholding. It upheld findings that the man’s unreliable testimony failed to establish political opinion as a motive, and that his explanation of the harm was contradicted by his mother and brother. But it found the analysis of his particular-social-group claim incomplete because the judge had omitted past harm when assessing past persecution and future danger. The judge had also failed to consider that past harm’s relevance to CAT protection. J-S-S-.

Those were distinct grounds for the remand. The judge was to reconsider the particularly-serious-crime issue, the social-group claim and CAT, allow additional evidence concerning competency and the applications, and enter a new decision. The formal order sustained the appeal in part, dismissed it in part and returned the record for further proceedings. J-S-S-.

Prepare the participation evidence and the protection evidence together

For a legal review, organize two connected parts of the record. The participation materials include evaluations, treatment information, the hearing transcript or recording, and firsthand observations about communication and understanding. Date those materials so counsel can see what the judge had at each hearing and what has changed since.

The protection materials address different questions: what happened before, why the person was harmed, what witnesses actually said and what supports the claimed risk of return. If convictions are involved, keep the records of each case separately identified. In J-S-S-, the problem of using one offense’s facts to assess another and the omission of past harm were separate from the competency determination. J-S-S-. J-S-S-.

Our M-A-M- analysis covers the broader assessment framework and safeguards. J-R-R-A- addresses testimony affected by cognitive or mental-health concerns, and E-S-I- addresses whom to serve with notice when competency concerns are apparent. J-S-S- adds the proof standard, the judge’s responsibility for the inquiry and the need to review each protection ruling on its own grounds.