Protecting Unaccompanied Children who are Not Competent to Participate in Removal Proceedings

Competency is a legal construct tied to due process in a proceeding, as competency refers to an assessment or legal determination of one’s capacity to understand the nature of the proceedings against them.

This blog post primarily focuses on competency, but because capacity and competency are often referred to interchangeably, it is important to understand how the terms are different—especially since competency is based on understanding one’s capacity. Unlike competency, capacity is not a legal construct; rather, it can be viewed as a spectrum that refers to an individual’s ability to make a decision or perform a task in a given context.​ A child is presumed to have capacity and to be capable of expressing their point of view and wishes.

Practitioners working with youth should recognize that capacity can be fluid—meaning that it changes and is dependent on various factors. A youth’s ability to make decisions will change and be subject to change due to a variety of variables in the child’s environment and also potentially due to intellectual and cognitive disabilities, childhood brain injuries, birth defects, mental health disorders, and child development​.

Likewise, competency is not a static concept. In a child’s immigration case, the immigration judge (IJ) can make a determination regarding the child respondent’s competency but consider the indicia of incompetency throughout the course of the legal proceedings.

Understanding competency is important for practitioners working with children, as competency is presumed even for child clients—so unless competency concerns are raised, the case will progress like any other case would. If a respondent is found not competent, then procedural fairness is required—as the Fifth Amendment entitles noncitizens in immigration proceedings to due process. If a respondent is found to be incompetent, then the proceedings will continue but with safeguards in place. In immigration, the established legal precedent for looking at a client’s competency and assessing the need for safeguards is the Board of Immigration Appeals (BIA) case, Matter of M-A-M-, 25 I&N Dec. 474 (BIA 2011). Continue reading this post to learn how Matter of M-A-M- sets out the procedure to determine if a respondent is competent enough to proceed in their case or if safeguards are warranted in that case.

It is important for an attorney representing a migrant youth to constantly screen for competency issues. These may arise if an attorney begins to question their client’s ability to meaningfully participate in building their legal case. For example, the attorney may have concerns about the youth’s ability to comprehend the charge of removability against them.

Attorneys working with unaccompanied youth must also understand the unique challenges they face. Think of the reasons surrounding an unaccompanied youth’s decision to make the journey to the United States. In many cases, the circumstances behind a youth’s decision to come to the United States are rooted in extraordinary hardship—including poverty, familial or community violence, persecution, parental maltreatment, neglect, abandonment, and/or discrimination. Then, many of these youth experience further harm on their way to the United States—only to arrive and then experience detainment and, if released, potential issues upon reunification with their sponsor. Along with the context of unaccompanied children’s journeys, remember that unaccompanied youth are still children. They are young—varying in age below age 21—and they also vary in maturity, emotional intelligence, psychological development, and cultural understanding—all of which affect a youth’s ability to make decisions. Even further, to compound these issues, a migrant youth may also have an underlying physical, cognitive, or mental impairment, or they may develop mental or physical disabilities on their way to or during their time in the United States. Trauma can also impact a youth’s mental and emotional state and lead to the onset of a mental health disorder, which may have lasting effects on their ability to make crucial decisions. Consider how competency issues may emerge when clients are or have been diagnosed with conditions, such as post-traumatic stress disorder (PTSD), attention deficit disorder (ADHD), depression, anxiety, bipolar disorder, or autism.

Yet, despite all that these youth have faced and experienced—along with the age, maturity, and emotional and intellectual capacity associated with their age of minority—unaccompanied migrant youth are expected to comprehend removal proceedings and make informed decisions in their cases. Further, their attorneys must pursue relief in accordance with a child client’s expressed interest—even if the attorney believes that the youth’s expressed interest is not in the youth’s best interest.

With this background in mind, the following are some specific issues to look at when assessing capacity and competency in children’s immigration cases:

• What factors in the client’s life are affecting their capacity?
  • For example, is the youth experiencing stressors in their living situation, with their family or sponsor, or at school? Is the youth experiencing or exhibiting stress, apathy, disinterest, disassociation, anxiety, nervousness, or any other emotion that may affect their capacity?
• Is the client experiencing issues in memory? Are they having difficulties in recalling facts relevant to their legal claim?
• Does the client understand the purpose of the legal relief being sought, or does the client understand the goal or ultimate benefit of the legal relief being sought?
  • For example, does an asylum-eligible child client understand what asylum is or what seeking asylum would do for the client?
• Does the client comprehend the information presented to make an informed decision? Does the client understand what evidence is relevant?
• Can the client meaningfully participate or collaborate with the attorney in the case strategy? What will participation or collaboration look like?
  • For example, can the client provide testimony? Can they work with the attorney to collect evidence or provide examples of evidence to bolster their claim?
• Does the client understand the alternatives that are presented, if any? Do they understand the consequences of certain decisions relating to the case? Do they understand what happens if they are unable to meet the goals of the case or the consequences of not meeting these goals?

Safeguards based on an individual’s mental incompetency are available under 8 USC 1229a(b)(3), or INA 240(b)(3). The statute states in relevant part:

If it is impracticable by reason of an alien's mental incompetency for the alien to be present at the proceeding, the Attorney General shall prescribe safeguards to protect the rights and privileges of the alien.

Thus, this statute establishes the right of an individual in INA § 240 removal proceedings to access safeguards in their hearings if they are determined to be mentally incompetent. However, the statute does not detail what specific safeguards are available to "protect the [individual's] rights and privileges."

The regulations provide further guidance on how the statutory provision above would be implemented. Under 8 CFR 1240.4:

When it is impracticable for the respondent to be present at the hearing because of mental incompetency, the attorney, legal representative, legal guardian, near relative, or friend who was served with a copy of the notice to appear shall be permitted to appear on behalf of the respondent. If such a person cannot reasonably be found or fails or refuses to appear, the custodian of the respondent shall be requested to appear on behalf of the respondent.

Additionally, 8 CFR 1003.25 speaks to an IJ’s waiver of the presence of the parties:

The Immigration Judge may, for good cause, and consistent with section 240(b) of the Act, waive the presence of the alien at a hearing when the alien is represented or when the alien is a minor child at least one of whose parents or whose legal guardian is present. When it is impracticable by reason of an alien's mental incompetency for the alien to be present, the presence of the alien may be waived provided that the alien is represented at the hearing by an attorney or legal representative, a near relative, legal guardian, or friend.

These regulations, therefore, allow for one specific safeguard: a waiver of the individual's presence. This does not mean, however, that a presence waiver is the only safeguard available. It just means that the broadness of this language leaves it open-ended as to what safeguards are available to a mentally incompetent individual.

What is Matter of M-A-M-?

The BIA decided Matter of M-A-M- on May 4, 2011. Because the statutory language about safeguards under INA 240(b)(3) is so broad, the BIA interpreted its application in Matter of M-A-M- where the pro se respondent disclosed his diagnosis of schizophrenia, indicated he needed medication, requested medical treatment, and filed psychiatric evaluations at his merits hearing. The respondent, a Jamaican noncitizen who spent the majority of his life in the United States, was in removal proceedings and applied for asylum. The respondent experienced schizophrenia and discussed this diagnosis throughout the course of his proceedings—explaining to the IJ that he needed medication and that he needed to be closer to his family. The IJ denied the respondent’s asylum claim, and the case went before the BIA. Although the IJ summarized the respondent’s mental health history in her decision, she did not make an explicit finding regarding his mental competency, which was at the crux of the BIA decision. While Matter of M-A-M- does not speak specifically to the issue of competency as it arises in unaccompanied children’s cases, it provides a general framework for assessing the competency of a respondent of any age.

Per Matter of M-A-M-, a respondent in removal proceedings is presumed to be mentally competent and that, “[a]bsent indicia of mental incompetency, an Immigration Judge is under no obligation to analyze a [respondent’s] competency.” Indicia of incompetency may include the inability to understand and respond to questions, the inability to stay on topic, or a high level of distraction. There may also be evidence of mental illness or incompetency in the record, such as medical reports, testimony from medical health professionals, school records, assessments from social workers, among others.

If an individual demonstrates indicia of incompetency, the IJ must make a determination on whether the individual is competent for the purpose of their removal proceedings. If the individual is determined to lack sufficient competency to proceed, the IJ will evaluate appropriate safeguards. Finally, the IJ must articulate the rationale for their decisions regarding competency issues.

Matter of M-A-M- was significant for practitioners, as it set precedent for judges to assess an individual’s competence in the context of the immigration context. The BIA’s framework under Matter of M-A-M- establishes when an IJ should make a competency determination, what factors and procedures an IJ should rely on when making a competency determination, and, if a respondent is determined to be incompetent, what safeguards are appropriate to ensure that proceedings are sufficiently fair.

A Matter of M-A-M- hearing, or a competency hearing, is the type of hearing an attorney requests to raise the issue of a respondent's mental competency. The hearing will decide if the client has indicia of incompetency and, if so, whether safeguards are warranted. Matter of M-A-M- sets out a three-part test to determine if a person meets the following definition of mental competency, based on whether the person:

[1] has a rational and factual understanding of the nature and object of the proceedings,

[2] can consult with the attorney or representative if there is one, and

[3] has a reasonable opportunity to examine and present evidence and cross-examine witnesses.

A separate BIA case, Matter of J-S-S-, 26 I&N Dec. 679 (BIA 2015), provides additional guidance on the burden of proof and other requirements in a competency hearing. This case also establishes that an IJ’s finding of competency is a finding of fact that the BIA may review to determine whether it was clearly erroneous.

As laid out in Matter of J-S-S-, in determining whether a respondent is mentally competent, neither party bears a formal burden of proof. Rather, each party has a duty to develop the record, including the government attorneys. The IJ then determines if a preponderance of the evidence establishes that the respondent is competent. Evidence considered by the IJ may also include witnesses such as a mental health professional, social worker, child advocate, family member, or caretaker.

In a competency hearing, the role of the IJ is to ask additional questions, review the evidence, and make a determination as to whether the individual is mentally competent. The IJ can also request that a competency evaluation be performed by a medical professional. If the IJ determines the child is incompetent, the IJ will issue appropriate safeguards. Matter of M-A-M- establishes that IJs “have discretion to determine which safeguards are appropriate, given the particular circumstances in a case before them.”

The law and precedent cases are quite broad in terms of what safeguards are available for a respondent who has been determined to be mentally incompetent. The good news is that this leaves a lot of room to be creative in the specific form of safeguards you request. Keep in mind that safeguards do not replace the burden of proof for a given form of relief. For instance, if the child is seeking asylum before the IJ, requesting safeguards does not eliminate the need to meet the legal requirements for asylum.

The following are provided as examples of appropriate safeguards in Matter of M-A-M-:

• Refusal to accept an admission of removability from an unrepresented respondent
• Identification and appearance of a family member or close friend who can assist the respondent and provide the court with information
• Docketing or managing the case to facilitate the respondent’s ability to obtain legal representation and/or medical treatment in an effort to restore competency
• Participation of a guardian in the proceedings
• Continuance of the case for good cause shown
• Closing the hearing to the public
• Waiving the respondent’s appearance
• Actively aiding in the development of the record, including the examination and cross-examination of witnesses
• Reserving appeal rights for the respondent

Below are additional safeguards that are not set out in any case law but may be requested if appropriate based on the individual’s circumstances:

• Not requiring the child respondent to testify in their case
• Allowing counsel to ask leading questions
• Requesting that the IJ consider the child respondent’s testimony in light of their past trauma
• Requesting for in person, non-simultaneous interpretation
• Limiting the scope of direct examination & cross examination

How to request a Matter of M-A-M- hearing: Remember, when a client’s indicia of incompetence is identified, then according to Matter of M-A-M-, the IJ must conduct a competency hearing or use another measure to find out if the client is competent. However, if you are representing a client and have concerns over their capacity, you can request a competency hearing through written or oral motion at a master calendar hearing or at any other appearance before the IJ. The Government may also request a competency hearing, though in practice that may not be as common. You must show a “bona fide doubt” about the client’s competency in requesting the hearing.

Evidence to support a competency hearing request: To support a request for a competency hearing, the motion may include descriptions of the client and their conditions or vulnerabilities that warrant the hearing, along with attached records showing an indicia of incompetence. In the context of a child’s case, evidence supporting the motion may include ORR Special Incident Reports (SIRs), school records (for example, if a child is in a special education program), prescription medications, and reports or letters from faculty at the child’s school (Note: remember that once something is submitted to the immigration court, it will become part of the child’s permanent file, so you must consider any potential consequences for the client in the future).

What is DHS’s role in the context of a respondent’s capacity? As mentioned above, DHS can request a competency hearing and ask for safeguards. Per Matter of M-A-M-, quoting 8 C.F.R. § 1240.2(a) (2010), if DHS is in possession of relevant evidence indicating mental illness or incompetency, then DHS is obligated to provide this evidence with the court—which may trigger an IJ conducting a competency hearing. An IJ may also compel DHS to provide the court with relevant evidence. This is especially relevant if the client is currently detained or if the client underwent a mental health evaluation when they were detained.

Preparing for the hearing: Competency hearings are usually evidentiary hearings, meaning the respondent will need to present testimony and/or documents in support of their request for safeguards. Some examples of evidence to submit include: a psychological evaluation, relevant medical records, school records, ORR SIRs, or affidavits from family or friends (Note the same as above: when preparing evidence, keep in mind that anything you submit to the immigration court will become part of the child’s record, so you want to be mindful of anything that might create an inadmissibility issue for them down the road).

What does a M-A-M- competency hearing look like? A competency hearing typically involves direct examination of the client to demonstrate that they lack competency. The IJ will typically ask simple questions to the respondent, but they may also ask the respondent’s family members or friends to provide additional information about the client’s condition.

Special Procedures for Children’s Cases in Immigration Court: Keep in mind that hearings are subject to the general guidance for children’s cases in immigration court.

Director’s Memorandum (DM) 24-01

Practitioners representing unaccompanied children in immigration court should read Director’s Memorandum (DM) 24-01: Children’s Cases in Immigration Court and understand the guidance issued by EOIR about cases involving juveniles. Check out this CILA blog post EOIR Updates Guidance on Children’s Cases in Immigration Court & Creates Specialized Juvenile Dockets (Jan. 12, 2024) to learn more about DM 24-01 and child-friendly courtroom practices and procedures.

Immigration Court Practice Manual (ICPM) Chapter 4.22 Juveniles

Chapter 4.22 of EOIR’s Immigration Court Practice Manual (ICPM) lists EOIR’s policies and guidance for practices related to juveniles in removal proceedings, including scheduling and representation of juvenile respondents. Chapter 4.22(d) also discusses that IJs should make reasonable courtroom modifications for juveniles—including permitting juvenile respondents to bring pillows and allowing the juvenile respondents to sit with an adult companion.

If you have concerns about your child client's competency, you can consider raising Matter of M-A-M- in their removal proceedings. When working with unaccompanied youth, indicia of incompetency may look different than in adults. The following are some factors to consider when looking for indicia of incompetency in child clients:

• Age & maturity
• Education level
• Past trauma and trauma-related symptoms
• Existence of any physical or mental disabilities
• Interactions with the child during intake and interview process

Common scenarios that may arise when working with children in immigration cases include the child not understanding key concepts even after explanation from the attorney such as a removal order or the consequences of a removal order, why they are in removal proceedings, or the attorney’s role as it relates to the child and to their case. Another common scenario is if the child is unable to understand their options and/or make decisions relating to their legal case.

Attorneys working with immigrant children are “express interest” attorneys, which means that we must honor our client’s expressed wishes. Our clients have agency and authority to make crucial decisions in their cases. Situations involving a client’s capacity may cause the attorney to consider whether their ethical duties and responsibilities to their client are in conflict with a client’s decision. For example, it may be difficult for the attorney to grapple with the ethical duty of acting in the client’s expressed interest rather than their best interest if a client has questionable or diminished capacity.

When an attorney is working with a child who shows indicia of incompetency, it is understandable for the attorney to be tempted to take a more active role in the client’s decision-making process. However, it is important for the attorney to comply with their ethical obligations to their client as they work on the legal case. This section explores specific ethical considerations that are important to keep at the forefront of the legal representation. Note that a state-specific discussion of ethics rules is outside the scope of this resource. When working with a child with competency issues, it is important to be aware of any state-specific ethical obligations that may arise in the course of representation. ABA Model Rule 1.14 states: “When a client's capacity to make adequately considered decisions in connection with a representation is diminished, whether because of minority, mental impairment or for some other reason, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client.” This underscores that the attorney is always obligated to follow the child’s stated interest rather than their best interest. See also ABA Model Rule 1.2. If the child’s stated interest creates a risk to their safety or well-being, the attorney may need to seek a best interest recommendation in order to protect the client’s interests. This can be done by requesting a child advocate through the Young Center.

In working with the client, the attorney must comply with their duty of communication, which requires that the attorney “explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.” See ABA Model Rule 1.4. If you have doubt about your client’s capacity, you still must make efforts to work with your client and try to explain everything to them. Consider creative ways you can employ child-friendly language and different techniques to explain legal concepts and processes to child clients. Note that if an attorney makes reasonable efforts to explain to the child and the child is unable to understand their options, and as a result does not have capacity to state what they want in their case, this may indicate there is an issue of mental competency.

Depending on the child’s competency, it may be difficult for the attorney to obtain the necessary information in order to pursue the child’s stated interest. In the circumstance where a third party might be able to provide relevant information (such as a parent, custodial adult, sibling, teacher, etc.), the attorney must maintain client confidentiality. See ABA Model Rule 1.6. This requires the attorney to obtain the client’s informed consent before disclosing any confidential information to a third party.