Thursday, May 5, 2011
Geoffrey A. Hoffman, Director of the University of Houston Law Center Immigration Clinic Comments on Matter of M-A-M
Geoffrey A. Hoffman, Director of the University of Houston Law Center Immigration Clinic, comments on Matter of M-A-M-, 25 I&N Dec. 474 (BIA 2011):
The Board of Immigration Appeals (BIA) for the first time in this published decision has articulated procedures which must be followed by all immigration judges in determining competency issues. This decision will have a nation-wide and immediate effect. There have been no mandatory procedures in place before now. As the Board mentions in its decision, there exist guidelines for how to handle such cases discussed in the EOIR's Benchbook. However, those guidelines were not mandatory but were merely hortatory or aspirational. Now, the immigration judges are obligated to following binding Board precedent which sets forth the test for determining competency as follows: whether he or she has a rational and factual understanding of the nature and object of the proceedings, can consult with the attorney or representative if there is one, and has a reasonable opportunity to examine and present evidence and cross-examine witnesses. The decision further spells out that if there any "indicia of incompetency," the Immigration Judge is further obligated to make "further inquiry" to determine whether the alien is competent for purposes of immigration proceedings. In the event the respondent lacks "sufficient competency" to proceed, the Immigration Judge is further obligated evaluate "appropriate safeguards." Finally, the immigration judges must articulate the rationale for their decisions regarding competency issues. As practitioners will tell you, this has almost never been the practice among immigration judges in the past and people with competency issues were often just deported without any safeguards in place whatsoever.
I want specifically to thank and congratulate my colleague Prof. Janet Beck at the UH Immigration Clinic, who supervised our excellent student, Andrea Penedo (2L), who worked on our brief and pursued this case before the Board.
Geoffrey A. Hoffman
Director-UH Immigration Clinic
University of Houston Law Center