M-A-M-: Mental-Health Evidence Required a Competency Assessment Before a New Decision

If a mental-health condition makes it hard for you or a family member to follow an immigration hearing, the problem deserves to be understood before important decisions are made. The relevant questions concern what the person understands, whether they can work with a representative and whether they can meaningfully take part in presenting the case.

In Matter of M-A-M-, 25 I&N Dec. 474 (BIA 2011), the Board of Immigration Appeals required a closer assessment after a man with a documented mental-health history went through his hearings without a lawyer. The Board set out a competency framework and returned his case for an assessment, appropriate safeguards, an explained finding and a new decision.

The record showed difficulty participating before the final hearing

M-A-M- was a Jamaican citizen who had entered the United States as a lawful permanent resident in 1971, when he was 10. His removal proceedings began decades later, with charges based on criminal convictions.

The hearing history in M-A-M- showed problems from the first appearance in September 2009. He had difficulty answering basic questions, including his name and date of birth. He told the judge he had been diagnosed with schizophrenia and needed medication. At another hearing, he said his mental illness was not being treated in detention. At later hearings, he asked to see a psychiatrist.

Psychiatric evaluations and state mental-health reports were in the file by the June 2010 merits hearing, which a different judge conducted. When asked whether he could proceed, M-A-M- said he would do the best he could. He first said he could not represent himself, then said he believed he could answer the judge’s and government lawyer’s questions. He appeared without counsel throughout the proceedings.

The judge summarized his mental-health history but made no explicit competency finding. She found him removable on specified conviction grounds and denied his applications for cancellation of removal, asylum, withholding of removal and Convention Against Torture protection. With counsel on appeal, he challenged the decision and sought a remand addressing competency.

The competency test focused on understanding and participation

The functional test in M-A-M- asks whether the person has a rational and factual understanding of the nature and purpose of the proceedings, can consult with an attorney or representative if there is one, and has a reasonable opportunity to examine and present evidence and cross-examine witnesses.

That focuses the inquiry on participation in this case. Can the person understand what the hearing is for? Can they communicate useful information to a representative? Can they understand and respond to evidence? A medical diagnosis helps inform those questions, while the decision requires attention to how the condition affects the person’s abilities.

The Board began with a presumption of competency. It required further inquiry when the case showed signs of possible incompetency. It also explained that competency can change during the proceedings: A person’s condition may deteriorate, improve with treatment or affect functioning differently at different times.

The Board later clarified the proof standard in Matter of J-S-S-, 26 I&N Dec. 679, 683 (BIA 2015). Neither party bears a formal burden to prove competency or incompetency. Once signs of possible incompetency are identified, the judge determines whether the evidence shows that the person is more likely than not competent to participate. The inquiry requires a developed record and the judge’s own finding.

The statutory foundation is 8 U.S.C. section 1229a(b)(3), which directs safeguards protecting a person’s rights and privileges when mental incompetency makes presence at the proceeding impracticable. The Board used the immigration statute’s participation rights to explain the assessment and the need for a fair hearing. Its framework allows proceedings to continue with safeguards that protect those rights when a person lacks sufficient competency.

Behavior and reliable records could trigger closer inquiry

The evidence discussion in M-A-M- identified observable difficulties, such as being unable to understand or respond to questions, stay on topic or maintain attention. It also identified medical assessments, treatment records and evaluations from criminal proceedings as potentially important evidence.

The discussion continued with school and special-education records, reports from teachers or social workers, participation in mental-health programs and observations from family members or friends. These sources can explain how the person functions and how that has changed. Their usefulness depends on the actual information they provide.

The Board also addressed records held by the government. In its discussion of evidence in M-A-M-, it required the Department of Homeland Security to provide relevant materials in its possession that would inform the court about competency. This mattered particularly for detained people, whose relevant records could be in government custody.

In M-A-M-’s own case, the Board’s application of the test drew together several facts: psychiatric reports diagnosing mental illness, a finding during criminal proceedings that he was unfit to proceed with trial, difficulties answering questions, his discussion of illness and medication, and his requests for a psychiatrist. Together, those circumstances gave good cause for concern about his ability to proceed.

The judge had to investigate and explain the finding

The assessment measures in M-A-M- included simple, direct questions about the hearing, the nature of the proceedings and the person’s state of mind. Questions about medication could address what it was for and how it affected the person.

The Board also identified ways to obtain better information: a continuance to gather treatment records or other evidence, a mental-competency evaluation, and assistance from a family member or close friend who could supply relevant information. Case management could help the person obtain treatment or legal representation. The approach was to fit the assessment to the circumstances.

After taking appropriate measures, the judge had to weigh the results under the functional test, determine whether the person could proceed without safeguards and explain the reasoning. In this case, a brief exchange about doing one’s best had to be considered alongside the documented history and observed difficulty participating.

Safeguards had to address the participation problem

The safeguard examples in M-A-M- included a family member or close friend assisting with information, participation by a guardian, time to pursue treatment or representation, a continuance for good cause, a closed hearing, and active help developing the evidence and questioning witnesses. The Board also identified protection of appeal rights.

The purpose was a fair hearing suited to the person’s capacities. The judge needed to decide which available safeguards addressed the actual circumstances and explain that choice. The possible measures were tools for meaningful participation rather than a single checklist to impose in every case.

Current 8 C.F.R. section 1240.4 addresses representation when mental incompetency makes the respondent’s presence impracticable. An attorney, legal representative, legal guardian, near relative or friend who was served with a copy of the notice to appear must be permitted to appear on the person’s behalf. If such a person cannot reasonably be found or fails or refuses to appear, the rule directs that the respondent’s custodian be requested to appear. That provision concerns a particular presence and representation problem; a family member’s factual assistance can serve a different purpose during an assessment.

A concrete safeguard concerns admissions. Current 8 C.F.R. section 1240.10(c) bars accepting an admission of removability from an incompetent, unrepresented respondent who is not accompanied by an attorney or legal representative, near relative, legal guardian or friend. When the judge does not accept an admission under that provision, the rule directs a hearing on the issues.

The remand required an assessment and a new decision

The order in M-A-M- returned the case to the immigration judge. The judge was to assess competency, make a finding, apply safeguards as warranted and explain the reasoning. The parties could present relevant evidence on remand, and the judge was to enter a new decision.

That was the concrete next step for M-A-M-. The Board’s competency framework addressed whether and how he could fairly participate in the proceedings in which his removal and requests for relief were being decided.

Prepare evidence of the actual difficulty participating

Bring the hearing notices and decisions, relevant hearing transcripts or recordings, treatment records and medication history to a legal review. Identify the exchanges that show a problem: a misunderstood question, inability to stay on the subject, unexplained confusion about the hearing or a change in functioning between appearances.

Ask treating professionals and people with firsthand knowledge to describe the person’s actual abilities and limitations. A dated account of what someone observed can be more helpful than an unexplained label. Keep track of treatment interruptions and changes in medication or symptoms that could affect the ability to participate.

Then identify the help needed for the particular problem. The evidence may support further assessment, additional time to obtain records, assistance communicating information or another safeguard discussed in the decision. An explained request connects the proposed help to the person’s ability to understand and take part.

Our Mbueno-Vita analysis examines a different hearing problem: interpretation difficulties treated as evidence of dishonesty. M-A-M- concerns the competency inquiry and safeguards needed to protect meaningful participation.