M-J-K-: The Judge Needed to Try Available Representation and Other Hearing Safeguards

When a family member’s mental-health condition prevents them from taking part in immigration court, finding someone who can help may be difficult. The person may refuse to attend a hearing or struggle to communicate even with a lawyer. The next question is what help can make the hearing fair. In Matter of M-J-K-, 26 I&N Dec. 773 (BIA 2016), the Board of Immigration Appeals required the judge to explore available representation and other safeguards before concluding that the case could not proceed fairly.

The Board left the finding of incompetency intact. Its concern was the next step: A qualified representative was available, and the judge needed to consider what that representative could actually do, alongside other sources of information. The Board returned the case for further proceedings and a new decision.

The judge had tried evaluations, a different docket and more time

The notice to appear alleged that the man was a Jordanian citizen admitted as a lawful permanent resident in 1982 and that a crime-of-violence aggravated-felony conviction made him removable. Proceedings began in Colorado in February 2014. Concerns about his behavior led the judge to allow a psychiatric evaluation and transfer the case to a mental-health docket for detained people in San Diego.

He attended a hearing in Colorado, but later refused to attend several San Diego hearings. The San Diego judge relied on a psychological evaluation and an ICE mental-health review form to find him incompetent. The judge had obtained evaluations, moved the case to the specialized docket and granted several continuances, but found those measures insufficient.

The judge also considered representation and administrative closure, which would have taken the case off the active docket. He believed those options would not work: The psychological evaluation indicated that the man would not cooperate with counsel, and the evidence gave no basis to expect competency to be restored. In August 2014, the judge terminated the proceedings without prejudice. The government appealed; the man, now represented, defended that result and alternatively requested a remand.

Competency and the adequacy of safeguards required different review

The government questioned whether the judge could make a sufficiently clear competency finding when the man had refused to attend. The Board found no clear error. The judge had relevant documentary evidence supporting incompetency despite the man’s absence. That factual finding remained in place.

The selection and adequacy of safeguards presented a different question. The Board held that the judge had discretion to choose appropriate measures, but that it would review that choice de novo—meaning it would exercise its own judgment about whether the measures were adequate. Facts about what help was available could underlie the decision; the ultimate judgment about fairness received fresh review.

That distinction matters on appeal. A challenge to the judge’s understanding of a medical record differs from a challenge to the help selected after incompetency was found. The current Board review regulation, section 1003.1(d)(3), distinguishes clear-error review of factual findings from fresh review of questions of law, discretion and judgment. An appeal needs to identify the actual problem and the evidence supporting it.

The available representative needed a chance to help develop the case

The Board acknowledged the expert’s opinion that counsel would not be an effective safeguard. Still, the judge had ended the case before trying other available steps. By the appeal, the man had a Qualified Representative appointed through EOIR. The Board directed the judge to reassess what that representation could accomplish.

A lawyer’s work could extend beyond obtaining a complete account from the man himself. Counsel might contact family members, caregivers and witnesses; present legal arguments about the removal charge and eligibility for relief; and obtain objective documents or country information supporting an application. Those tasks could supply information even when direct communication remained difficult.

The Board’s approach therefore called for a concrete inquiry: What relevant information could be obtained, who could provide it and how could counsel use it to present the case fairly? The medical prediction deserved attention, while the available representative’s possible work also needed to be explored. The decision’s account of an appointed representative concerned this man’s circumstances.

Attendance also required a judicial decision. The Board treated waiver of this man’s presence as appropriate given his inability to contribute or participate at that time. Current section 1003.25(a) permits waiver when mental incompetency makes presence impracticable and the person is represented at the hearing by one of the specified representatives. Bring an attendance problem to counsel and the court promptly so the need for an order and appropriate assistance can be addressed.

Family information and a specific reason for more time mattered

The government had asked for more time to serve the notice to appear again under the Board’s protective-service guidance. The judge relied on the number of earlier continuances without assessing whether good cause supported this request. The Board explained that proper service might require finding a relative, friend or guardian who knew the man’s background.

There were leads to investigate. Evidence supplied by the government indicated that the man had at one point been married to a United States citizen. A written filing by the man claimed that he had two sons attending college in the United States. The Board identified those sources because a knowledgeable family member might help with communication and information relevant to the charge or an application for relief.

For someone preparing a similar request, the practical task is to explain what additional work is proposed. Identify the person to contact or document to obtain, the efforts already made and the question the information could answer. In this case, further time had a defined purpose: proper service and investigation of information that counsel could use.

The remand required another assessment of available safeguards

The Board returned the case to the immigration court to reassess representation and consider additional safeguards, followed by a new decision. It also recognized that the judge could reassess competency using updated evidence because the person’s condition could change. The formal result was further adjudication with a closer examination of the available help.

A later decision shows how that inquiry can work. In Matter of C-L-R-, 29 I&N Dec. 726 (BIA 2026), the Board reviewed safeguards for an applicant found incompetent in withholding-only proceedings. The representative obtained water, recesses and adjustments to questioning. She also filed motions, helped submit the application, country reports and expert evidence, and prepared an appellate brief. The Board relied on that actual work in upholding the fairness of the proceedings.

C-L-R- applied M-J-K-’s review standard and affirmed the safeguards despite identified communication difficulties and the representative’s stated inability to obtain certain additional help. It dismissed the appeal. The comparison directs attention to the assistance provided and the evidence it enabled the person to present.

The type of proceeding also mattered. C-L-R- rejected termination in withholding-only proceedings under the regulation limiting those proceedings to withholding or deferral of removal. Current section 1208.2(c)(3)(i) sets that limited scope. Counsel should identify the proceeding involved before deciding what remedy to request.

Mental-health evidence can also matter to a separate crime-bar question

A later change is important when reading the older decision. A footnote in M-J-K- cited G-G-S- while discussing serious criminal conduct and possible danger. In Matter of B-Z-R-, 28 I&N Dec. 563 (A.G. 2022), the Attorney General overruled G-G-S- and permitted consideration of mental-health evidence when deciding whether a conviction is a particularly serious crime. Its relevance is assessed case by case.

The Board continued to apply that later rule in Matter of G-L-C-, 29 I&N Dec. 717 (BIA 2026). There, the applicant had diagnoses but did not claim they played a role in the offense. For counsel’s review, identify what the medical evidence actually explains. Evidence about ability to participate in a hearing and evidence about the circumstances of an offense can answer different legal questions.

Show what help was tried and what useful work remains

Bring the evaluations, hearing decisions and an account of the assistance already requested or provided. Identify communication difficulties with concrete examples, then describe the work a representative could undertake: locating someone with firsthand knowledge, obtaining an existing record or presenting an argument supported by documents. Explain any remaining gap and why it matters to the decision.

Our M-A-M- analysis covers the initial competency assessment. J-S-S- addresses the proof standard; J-R-R-A- concerns testimony affected by cognitive or mental-health difficulties; and E-S-I- explains protective service. M-J-K- focuses on the concrete work that available safeguards could make possible after incompetency has been found.