The Board of Immigration Appeals (Board), in a precedent decision, has continued to expand its case law on the treatment of mentally incompetent non-citizens in removal proceedings. Today, the Board determined  that neither the non-citizen nor the Department of Homeland Security bears a formal burden of proof in immigration proceedings to establish whether or not the non-citizen is mentally competent, but where indicia of incompetency are identified, the Immigration Judge should determine if a preponderance of the evidence establishes that the non-citizen is competent.  Finally, a finding of competency is a finding of fact that the Board will review to determine if it is clearly erroneous. 

The full text of Matter of J-S-S- can be found here: