11 May 2011 

BIA CASE ASSISTS MENTALLY CHALLENGED INDIVIDUALS IN COURT

The BIA explains the standard for mentally challenged individuals facing immigration court.

A person in immigration court facing deportation must understand what is happening in order to properly present their case. But what happens if the individual is mentally challenged? A recent BIA decision, Matter of M-A-M-, has provided standards for Immigration Judges as to how to proceed for someone who may not be competent enough to understand what is going on. The decision says that an individual is to be given an opportunity to present documents or evidence showing their mental problems or show whether he has an understanding of the nature of the court proceedings, and if he can consult with an attorney or a representative. The Judge must then look into whether the individual is competent for the court proceedings, and, if not, the Judge will look into what safeguards are appropriate, including possibly an evaluation or administratively closing the case. Judges must then give an articulate basis for their decisions as to whether the individual is competent to go forward with their case or not. Pro-immigration groups have stated that while the decision is helpful, it leaves a lot of discretion in the hands of Judges who are not experts in competency decision making. Having an attorney to assist one who may be mentally challenged is essential to help present their case.

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