from several mental illnesses including a bipolar disorder a trauma disorder major depression with psychotic features an auditory and visual hallucinations faced with deportation he seeks relief from  asylum withholding of removal into the i n a and protections under the convention against torture fearing his return to guatemala based on an abusive police force and  persecution and torture that will result from his mental illnesses here the b s a erred in arriving at all three of his conclusions first they're failing to consider sanction was that i mean one can read this several ways but it seems to me that one thing that one possible reading is we know that the respondent there the petitioner here has serious mental illness but it looks like there was any error in not recognizing that was harmless because he received they have protections that are required hooty counsel and the other the other requirements so do you read it the same way if not why not and if so is that a permissible inclusion well you're on or under first under matter of mam there's there's nothing in the formal safeguards need to be employed and reasoning for that and i think one of the main reasons for that is to ensure fairness in all proceedings that all persons potentially incompetent receive the same protections and also to  create a level of certainty so so that after the fact there's no uncertainty as to whether you know was the petitioner competent was it seems like you know that the immigration judge tried to do its best and it's sometimes difficult to see you know how that how the competency can affect the proceedings and that's in large part due to the fact that competency is defined by the ability  of the litigant to communicate with the attorneys so it's sometimes difficult to see and so the purpose of m a m is to create that uncertainty and so for that reason i don't think that there is a specific prejudice requirement  think i do think though that there was a president here and that the the steps the immigration judge took when he noticed there being some kind of issue doesn't replace the formal safeguards that are required  including and of course the immigration judges in the best position to handle this so there is some discretion there but some of the safeguards that could have been employed here were more active aiding in the development of the record to ensure that all aspects of petitioners application recovered and not merely just fuck kind of follow up questions when he seemed to be skipping around in his testimony  making sure at the beginning of each hearing that he was on his medications he or she wasn't he wasn't on his medications at one of the hearings and he was printed permitted to be  cross examined by the government and there's extensive testimony in the record showing that he requires those medications without those medications he's completely different person personality changes  and completely transforms and even as he described it at one point in the record that he feels pressure in his head and he feels out of equilibrium and so requires his is medications there so that that shouldn't have occurred not for the case not coming back but if he addressed this as a company issue i think formal safeguards want to be fair and that he wasn't asked he certainly was not and and to matter of mam doesn't require doesn't require the issue to be raised by the attorney and it places the duty on the immigration judge because it really goes to i think the fundamental fairness of the proceedings and so you know the b i relied on that in its determination but there that doesn't find any support and matter if a man whole competency issue and therefore the petitioner didn't waive it yes i think that's right i think that the cases in the briefing really show that really show that the doesn't simply dedicate paragraphs to an issue discussed multiple factors involved and then at the end of the day say you know we declined something to the effect we  also talk about ma'am so it seems like there's two options you're talking more today about it making the it here to its own safeguards that it identified and procedural safeguards that identified in ma'am are those two different routes to take in which one are you lobbying for here today so i think that analysis is similar but what you're looking at both really go to the heart of the fundamental fairness of the proceedings i think a due process violation of occurred and i will submit that that in the briefing i think we've identified enough instances of prejudice and to the extent there are more also submit that that's a result of the nature of incompetency is a lot of those instances are going to be burrowed in the attorney client relationship in the way the case is prepared in the way th here to a principle that if we can avoid constitutional questions we will so why wouldn't we first consider the question of whether the agency followed its own required procedures rather than delving right into a constitutional issue well i think this i think on this record this the only the only propre at recourse a it's five years after the fact it's going to be difficult on remand to conclude that one hundred percent whether he's competent i think the only appropriate remedy here is a is a new hearing and under the do i think you may have misunderstood my questions and judge maria asked you whether you preferred a due process route or an agency didn't follow its own rules route and i guess my question is why wouldn't we first consider the non constitutional ground for your claim regardless of what the right relief is because i don't think that the relief would be any different think i think based on based on the record i think you can go that route and going to agency view but i would ask and submit that under that view it's appropriate would be open ended when there's when the courts have found errors under matter of and i am but i don't think that there is any i don't think there's anything preventing you know a more  full and explicit kind of order to order for a new hearing under the under that framework as well so yeah i would submit that yes i think analyzing it under the agency framework is appropriate as well thank you c there might be a competency issue or seems to be a competency issue before the i j a affect the particular serious crime determination that's a fair question your honor  process the competency question is unaffected in this case doesn't affect that particular serious crime analysis because board reasonably determined any possible explanation or comments made by the petitioner end of the petitioner was not competent or if there was questions surrounding his competency how is it that that can not be affected y i'm bored as opposed to consider the facts and circumstances of the i'm dying in fiction that facts and circumstances can be proved by more than just testimony and the board in this case consider the facts and circumstances of the two convictions  especially in considering the two thousand and ten conviction the board found that the fact that no injury had occurred i did not outweigh the inherent dangerousness of the felony dui conviction additionally the board considered other verifiable facts on the record based on the criminal we regularly review things that the b i considers on the merits and they did consider this issue on the merits there's quite a lengthy discussion of the competency question and  am i am does not seem to require a motion or any other formal action on the part of the alien or the aliens coun to trigger the requirements so i don't understand where waiver comes into absolutely on or at as a matter at the immigration court level competency is a very complicated question and no party bears the form of  burden of proof the court considers competency when it needs to but there is a presumption of competent that anyone is competent to participate in his proceedings i think our game might have been muddled by the petitioner in the sense that we've argued that the waiver rule procedural due process claims to know about and we would argue that the fisher house failed on both counts here to prove both that he's soft that his proceedings were not fundamentally fair and that he suffered prejudiced due to that failure of the immigration judge to make an explicit competency fine but what is your response though to the non constitutional argument that the agency failed to follow its own requirements as laid out in a matter of emmy in other words whether or not it's a due process while a charade appears that m e m sets out requirements and procedures for immigration judges to follow that weren't followed here so why wouldn't we start there before we reach due process there the due process considerations of two factors within due process and here and to matter of and i am a very related in this case i would argue that there are two sides of the same coin the competency issues are complicated and almost a moving target because an alien's competence must be addressed you know and confidence can change and  and immigration judges failure to make an explicit competency finding while that may be a due process error may nonetheless be harmless if the alyan was nonetheless provided all of the safeguard safeguards that were provided here by that yes there are many here on our end even though they were not provided after an explicit competency finding they were in place and there the procedural safeguards that are described  many of the boards subsequent presidential decisions about competency are example probably one of the most significant ones that was not addressed here and probably significant to this petitioner was the medication and turning whether or not he was getting the treatment that he needed or if he needed to be sent somewhere or valuated or anything like that there's a lot of indications throughout the transcript in the colloquy said he had with the him questions and i think his family was present was witness and so that's the only things that can be considered but if you look at the february two thousand and thirteen hearing and in particular when the government was cross examining  mr compas may here with the particular focus on his criminal record and history of incarceration you know there's certainly at least one part in that and other parts in the transcript and you'll find it a r two two four well how are you functioning now without medication and kept us from his his i'm not functioning quite well there's an ongoing fight in between my mind the government why don't you describe what you mean by that accomplishment here ok for instance i have my right hand my left hand and they cannot balance each other and because of that i have to my mind my complete equilibrium my memories of all my life are in my head and they're going around in circles and they are in there all the time going around and around right now i feel like a very strong pressure inside my head what the medication does that relieves that pressure do you still have thoughts of hurting myself and it goes on and neither his counsel nor the immigration judge at that point or subsequent said what's going on here and do you need medication talk to ask the  question the competency and enough to say maybe yeah you're not competent especially in light of the fact this individual had a head injury i mean it's not and he had scores of records of medical records indicating that he was suffered from depression and i think it's schizophrenia all kinds of fissures now so i mean i'm not quite sure what more it would have required for there should have been however this immigration judge took pains in multiple instances in their record to make sure that the alien understood the nature of his proceedings and when his lack of medication in this hearing that you cited me and said me excuse me  aggression judge did not make an explicit competency finding or ask the parties to address competency directly but the immigration judge did continue proceedings and in concluding that the allen was ineligible for the relief he sought the immigration judge this conclusions not on his testimony but on that may have been incomplete and that may have been body at times due to his mental illness but based on objective verifiable facts on the record and for that reason your honor as we but here on ars i'll be brief as i say i know i haven't got a time here i know you have limited time but i do want to ask you what do we do with particularized this particular series of crimes finding do we go on the record we have here is it affected in any way by the competency question or do we if for a chance we do find that there's a need for a minute do we not reach that issue at this time for some other limited purpose i think that the particular serious crimes issue should be addressed at that time as well it's a couple let me just follow up on that and you can still have your couple of points i can envision a situation in which competency failure to follow all the requirements of mam would not matter for example if someone had suffered a felony conviction for second degree murder and been in prison and so forth that they'd have an aggravated felony and it sort of wouldn't matter to the outcome how would it matter potentially to the outcome particularly serious crime so it goes to the evidence that would have been that could have been presented here again it goes to that the ability to assess the attorney in preparing for the case  you know having recognized the government was going to rely on these convictions it would have allowed mr cupples me to confer with his an attorney and present more evidence i think on more mitigating factors you know the record is pretty bare the record is pretty bare on circumstances going either way but there is testimony from his mother that he didn't hurt anyone in connection with the d and it's not only the particularly serious crimes determination but also the you know the cat claim as well it both opinions seem to over look not even consider the possibility that he's gotten into a lot of trouble in his past unfortunately because of mental illnesses which have led to alcohol abuse and abnormal behavior has led to a lot of run ins it's pretty well documented the police force in guatemala average citizen in guatemala and you know had he had he been able to better communicate with his attorney safeguards been in place to ensure everything was covered i think we would have had a more wholesome record on that issue as well  process of due process application due process and immigration proceedings often does the agency here gave a reasonable read of its its regulations and due process principles and came up with this framework and the b a is quite frankly bound to follow its own presidential decisions unless it states its departing from from them provides reasons for the thank you for taking on this case pro bono our program is exceedingly helpful to the court and we are grateful to the lawyers who are willing to do