Competency To Participate in Immigration Proceedings

COMPETENCY TO PARTICIPATE IN IMMIGRATION PROCEEDINGS

Respondents are presumed to be competent, and no further inquiry into competency is required if there is no indicia of incompetency. If there is indication of incompetence, the Immigration Judge orders a psychological evaluation.

The competency standard explores whether the respondent has the ability to meaningfully participate and represent oneself. The standard includes three prongs:

  1. Understand the nature and object of the proceeding
  2. Capacity to understand, exercise, and waive rights
  3. Capacity to perform functions necessary for self-representation
    • Respond to allegations and charges
    • Present information and evidence on relief eligibility
    • Follow instructions

A respondent is competent to represent himself in an immigration proceeding if he has:

  1. Rational and factual understanding of:
    • The nature and object of the proceedings
    • The privilege of representation by counsel
    • The right to present, examine, and object to evidence
    • The right to cross-examine witnesses
    • The right to appeal
  2. Sufficient present ability to:
    • ¬†Exercise the rights listed above
    • Make informed decisions about whether to waive the rights listed above
    • Respond to the allegations and rights in the proceedings
    • Present information and evidence relevant to eligibility for relief
    • Act upon instructions and information presented by the immigration judge and government counsel