DIOP v. LYNCH, NO. 14-2115

Decided: December 2, 2015

In a case about continuing or closing an immigration removal proceeding for petitioner Madiagne Diop to receive a mental health evaluation, the Fourth Circuit found no error in the Immigration Judge’s (IJ) assessment of Diop’s mental health.  On this basis, the Fourth Circuit denied Diop’s petition for review.

Diop, a native of Senegal, was admitted to the United States in October of 1997 on a B-2 visitor visa which expired in April, 1998.  Diop overstayed his visa, living in the United States without legal immigration status from April, 1998.  In January, 2012, Diop was arrested following a psychotic episode at the store where he worked.  Following his arrest, he was given a hospital psychological evaluation before being placed in police custody.  The psychological evaluation diagnosed psychosis, and prescribed antipsychotic medication.  Diop ultimately pled guilty to three counts of second-degree assault, and was sentenced to 3 years probation.  In November, 2012, the Department of Homeland Security served Notice to Appear on Diop, indicating that he was removable for overstaying his visa.  

Diop’s removal proceedings included five appearances before an IJ between November, 2012 and May, 2013.  At the November, 2012 hearing, the IJ indicated that she would evaluate Diop’s mental competency at the next hearing.  At a December, 2012 hearing, the IJ asked Diop a series of questions.  In response to the questions, Diop indicated that he was able to communicate with an attorney, except that he had to pay to use the phone where he was staying, that he had no history of mental health problems, and that he understood the hearings to be about immigration.  Based on this exchange, Diop’s attorney’s evaluation, and the full record, the IJ found Diop mentally competent.  In a February, 2013 hearing, Diop admitted the allegations against him, and agreed that he was removable.  The IJ granted a continuance, so that Diop’s attorney could seek prosecutorial discretion.  In April of 2013, Diop sought a continuance or closing of his proceeding to await passage of an immigration reform law he felt would affect his case.  The IJ denied his request, and granted him voluntary departure, or alternatively, ordered his removal.  In June, 2013, Diop appealed to the Board of Immigration Appeals (BIA).  Based upon mental health records from his January, 2012 arrest, Diop argued that the IJ should have closed or continued his case to allow him to undergo a mental health evaluation, which he also claimed would have allowed him to argue for withholding of removal on the grounds of mental incompetency.  The BIA, finding that the mental health records from January, 2012, reflected only Diop’s mental state at the time, and were contradicted by a currently clean mental health record, and that Diop had not argued his withholding claim before the IJ, affirmed the IJ.  Diop then petitioned the Fourth Circuit for review, arguing that the IJ’s refusal to continue or close the removal proceeding to allow for a mental health evaluation was a violation of due process.

The Fourth Circuit found that the IJ did not err in not closing or continuing the removal proceedings to allow Diop to seek a mental health evaluation.  The Fourth Circuit noted that the BIA standard for competency includes whether the petitioner has an understanding of the proceedings, whether the petitioner can consult with his attorney or representative, and whether the petitioner has an opportunity to present evidence, and cross-examine.  If there is an indication of incompetency, the IJ is required to take measures, which will vary depending on the circumstances, to evaluate competency.  Here, the Fourth Circuit found that there were no indications of Diop’s incompetency.  Despite the psychological evaluation from his January, 2012 arrest, Diop denied a history of mental health problems at his removal hearings, and his attorney further indicated that she thought Diop had no mental health problems.  In fact, the Court noted, in seeking a continuance, Diop himself argued that he was mentally healthy, and that the January, 2012 incident was an aberration.  Diop supported this claim of mental health with current mental health records.  Nonetheless, the Fourth Circuit noted, the IJ evaluated Diop’s competency, holding a hearing to evaluate his mental health and his ability to interact with his attorney.  Based on these findings, the Fourth Circuit denied Diop’s petition for review.  The Fourth Circuit also upheld the BIA’s denial of Diop’s withholding of removal claim, finding it had not been raised before the IJ.

Full Opinion

Katherine H. Flynn

 

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