Wednesday, June 6th, 2018

BIA on Incompetent Respondents: Matter of E-S-I-, 26 I&N Dec. 136 (BIA 2013)

(1) Where the indicia of a respondent’s incompetency are manifest, the Department of Homeland Security (“DHS”) should serve the notice to appear on three individuals: (1) a person with whom the respondent resides, who, when the respondent is detained in a penal or mental institution, will be someone in a position of demonstrated authority in the institution or his or her delegate and, when the respondent is not detained, will be a responsible party in the household, if available; (2) whenever applicable or possible, a relative, guardian, or person similarly close to the respondent; and (3) in most cases, the respondent.

(2) If the DHS did not properly serve the respondent where indicia of incompetency were either manifest or arose at a master calendar hearing that was held shortly after service of the notice to appear, the Immigration Judge should grant a continuance to give the DHS time to effect proper service.

(3) If indicia of incompetency become