Immigration Competency Evaluations for California

Matter of M-A-M- (BIA 2011) established a three-part test: the respondent must have a rational and factual understanding of the proceedings, the ability to consult with their attorney, and a reasonable opportunity to examine and present evidence and cross-examine witnesses. If any of these are impaired by mental illness, intellectual disability, or cognitive impairment, the court must consider safeguards, and under M-A-M- a judge can use some safeguards while still assessing competency. Matter of J-S-S- (BIA 2015) added that no party bears a formal burden: where indicia are present, the judge decides whether a preponderance of the evidence shows the respondent is competent.

It depends on who asks for it. When an immigration judge requests a forensic competency evaluation for a Franco-Gonzalez class member (a detained respondent in California, Arizona or Washington), the court's 2014 implementing order requires a forensically trained, currently licensed psychiatrist, psychologist or licensed clinical social worker, and that evaluation is normally done in person. An evaluation your attorney arranges outside that court-ordered process is a separate service: the attorney chooses the evaluator and decides whether to file the report. Dr. Mantonya is a licensed clinical psychologist (California PSY28494) who provides that attorney-requested kind, as a written report.

The judge decides competency. If the respondent lacks sufficient competency, the judge chooses safeguards under Matter of M-A-M-, such as a continuance, a family member's or guardian's participation, waiving the respondent's appearance, or reserving appeal rights; for detained respondents in the Franco-Gonzalez class, a qualified representative can be provided. Even if the respondent is not found fully incompetent, graduated protections can still apply.

A competency evaluation assesses whether the respondent can understand immigration proceedings and meaningfully assist their attorney. It includes a clinical interview, cognitive screening (MoCA or MMSE), review of mental health history, and a complete report with specific findings on each element of the Matter of M-A-M- three-part test.

A competency evaluation is not a pass-or-fail test. It is a clinical assessment of your current cognitive and psychological functioning. The evaluator documents your abilities and limitations honestly. If found incompetent, you are entitled to procedural safeguards under Matter of M-A-M- (BIA 2011) and Matter of J-S-S- (BIA 2015). If you are detained in California, Arizona, or Washington, Franco-Gonzalez v. Holder (C.D. Cal.) provides qualifying detainees with a qualified representative; this is separate from the evaluation itself, which is typically arranged through counsel or the court.

Immigration judges can order competency evaluations under Matter of M-A-M- (25 I&N Dec. 474, BIA 2011) when respondent presents indicia of incompetency. The court may order a sua sponte evaluation, and an attorney can also arrange an independent evaluation. We work with the attorney on the scope, timing, and report format. An evaluation the court arranges and one your attorney arranges are separate; ours is the attorney-requested kind, delivered as a written report.

Matter of M-A-M- says proceedings can go forward with safeguards when a respondent lacks competency, and its safeguards include refusing an admission of removability from an unrepresented respondent, involving a family member or close friend, managing the docket so the person can get representation or treatment, a guardian, a continuance, closing the hearing to the public, waiving the respondent's appearance, helping develop the record, and reserving appeal rights. Detained respondents in the Franco-Gonzalez v. Holder (C.D. Cal.) class can get a qualified representative. Whether a case is closed or ends is a legal question for the attorney. The evaluation supplies clinical findings the judge can weigh in deciding competency.

Matter of M-A-M- (BIA 2011) is the nationwide procedural standard, the immigration judge identifies indicia, considers competency, and provides safeguards if respondent is found incompetent. Franco-Gonzalez (C.D. Cal.) added specific protections for detained class members in California, Arizona, and Washington with serious mental disorders: when an immigration judge finds a class member not competent to represent themselves, EOIR provides a Qualified Representative. Outside the class, EOIR's nationwide policy provides qualified representatives to certain unrepresented, detained respondents found incompetent; otherwise the judge chooses the safeguards. Whether either applies is a question for an attorney.

It can help. Franco-Gonzalez v. Holder requires the government to provide a qualified representative for detained noncitizens in California, Arizona, and Washington who have a serious mental disorder or defect that renders them mentally incompetent to represent themselves in immigration proceedings. Class membership is not automatic, the immigration judge or ICE must identify the respondent as potentially eligible, and a clinical evaluation supplies the clinical findings the judge uses. The competency report documents clinical findings, Diagnostic and Statistical Manual of Mental Disorders (DSM-5-TR) diagnoses where the findings support them, and the abilities in the three-part Matter of M-A-M- test, which the judge can weigh; the attorney relates them to the legal criteria and the judge decides competency. It is not the forensic competency evaluation the Franco-Gonzalez order provides for when an immigration judge requests one for a class member. Reports note safeguards the findings point to (such as a continuance or a qualified representative); which to use is the judge’s decision under Matter of M-A-M-.

The clinical assessment overlaps but the legal frameworks are different. Criminal competency follows Dusky v. United States, 362 U.S. 402 (1960), which asks whether the defendant has a rational and factual understanding of the proceedings and a present ability to consult with counsel with a reasonable degree of rational understanding. Immigration competency under Matter of M-A-M-, 25 I&N Dec. 474 (BIA 2011), uses a three-part test that adds a third prong: a reasonable opportunity to examine and present evidence and cross-examine witnesses. Criminal competency findings can stop a prosecution and trigger restoration treatment with a constitutional right to appointed counsel under Gideon v. Wainwright. Immigration proceedings are civil, and an incompetency finding does not automatically end the case: the judge chooses safeguards, which can include a continuance, and certain unrepresented, detained respondents can get a qualified representative, under the Franco-Gonzalez class (California, Arizona, Washington detention) or EOIR's nationwide policy. Both use clinical interviews, cognitive screening such as the MoCA and a mental status exam, but the immigration report frames findings around 8 CFR 1240.10 safeguards rather than criminal competency restoration. The clinical assessment overlaps, but the legal framing and report architecture differ. This practice provides immigration competency evaluations as written reports; criminal competency-to-stand-trial cases typically require in-court testimony and are outside our scope.