Second Circuit Invalidates Old Derivative Citizenship Law on Constitutional Grounds

The Immigration and Nationality Act of 1952 provided different rules for when a U.S.-citizen father could transmit citizenship to his child born out of wedlock than for when a U.S.-citizen mother could transmit citizenship to her child born out of wedlock.  The rules for paternal transmission were far more stringent.  In the context of an equal protection claim being evaluated under intermediate scrutiny, the Government proffered two interests (ensuring a sufficient connection between citizen children and the United States and avoiding statelessness), but the Second Circuit found that the statute was not substantially related to these or any other actual and important government interests.  The court then severed the more onerous provision applied to fathers and deemed that the less stringent requirement for mothers would apply to both parents.

The Second Circuit's decision now creates a split with the Ninth Circuit, who affirmed the constitutionality of statute's differential treatment of parental transmission of citizenship.

The full text of Morales-Santana v. Lynch can be found here: http://www.ca2.uscourts.gov/decisions/isysquery/485dec25-f79a-4061-94c0-6aaecad5562c/1/doc/11-1252_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/485dec25-f79a-4061-94c0-6aaecad5562c/1/hilite/

Tenth Circuit Issues a Decision Addressing Proper Venue for a Petition for Review

Lee was detained by Immigration and Customs Enforcement in Louisiana (part of the Tenth Circuit), but his case was heard via televideo equipment by an Immigration Judge in Dallas, Texas (part of the Fifth Circuit).  Lee was physically transported to Dallas for his final hearing.  When his case was denied by both Immigration Judge and the Board of Immigration Appeals, Lee filed a Petition for Review with the Fifth Circuit.  The Fifth Circuit summarily transferred the Petition for Review to the Tenth Circuit, who in today's decision, transferred it back, finding that the proper venue in a detention case is the jurisdiction in which the Immigration Judge sits, rather than the jurisdiction in which the detention center resides.

The full text of Lee v. Holder can be found here: http://www.ca10.uscourts.gov/opinions/14/14-9573.pdf

Supreme Court Invalidates the ACCA Residual Clause; Disavows the "Ordinary Case" Test

The Supreme Court invalidated the residual clause of the Armed Career Criminal Act, finding it unconstitutional vague.  The Court also disavowed the "ordinary case" test employed by the circuit courts to determine if a conviction qualified as a "violent felony" under the residual clause.  This decision has important implications for immigration decisions finding convictions to be crimes of violence under 18 USC 16(b).  The text of 16(b) and the text of the residual clause are very similar, and circuit courts have often relied on a violent felony determination under the residual clause to determine that a conviction is also a crime of violence under 16(b).  Arguably, those cases must be revisited now.  

In addition, in a published case (Matter of Francisco Alonzo) issued earlier this year, the Board of Immigration Appeals stated that the ordinary case test should be employed to determine if a conviction qualifies as a crime of violence under 16(b).  Given the Supreme Court's skeptical assessment of that test in today's decision, the ordinary case test is probably no longer good law.

The full text of Johnson v. United States can be found here: http://www.supremecourt.gov/opinions/14pdf/13-7120_p86b.pdf

My blog post about Matter of Francisco Alonzo can be found here: http://www.sabrinadamast.com/journal/2015/6/4/board-addresses-proper-standard-for-evaluating-whether-a-conviction-qualifies-as-a-crime-of-violence

BIA Upholds Suspension of Attorney who had his Legal Assistant Impersonate him During Telephonic Hearings

In a published decision, the Board of Immigration Appeals upheld the suspension of an attorney who repeatedly had his legal assistant impersonate him during telephonic hearings.  The Board agreed that the attorney had assisted in the unauthorized practice of law, and upheld a 16 month suspension from practice before the immigration agencies and a 7 year ban on telephonic appearances.

The full text of Matter of P. Singh, Attorney can be found here: http://www.justice.gov/eoir/file/623226/download

Tenth Circuit Unpublished Decision Addresses Oklahoma Conviction for Maintaining a Dwelling where a Controlled Dangerous Substance is Kept

The conviction at issue in this case was unique enough that I thought the unpublished decision warranted a blog post.  Torres-Ledesma was convicted under Oklahoma law of "maintaining a dwelling where a controlled dangerous substance is kept."  The agency determined that his conviction qualified as an aggravated felony and a controlled substance violation.  The Tenth Circuit noted that the statute was divisible because it could be punished as a felony conviction or with a civil fine.  Only a felony conviction would have immigration consequences, and thus, the Tenth Circuit remanded to allow the Board of Immigration Appeals to conduct a modified categorical analysis.

How often do you find a criminal statute that explicitly permits punishment as a civil violation only? Probably more often than you realize, especially with so many states decriminalizing possession of marijuana, so keep it in mind when evaluating the immigration consequences of the "conviction."

The full text of Torres-Ledesma v. Lynch can be found here: http://www.ca10.uscourts.gov/opinions/14/14-9562.pdf

First Circuit Dismisses Appeal of a Denied Motion to Reopen

The First Circuit's decision in Mazariegos v. Lynch is not particularly noteworthy for its fact or the law that it applies.  It is, however, a reminder of how much more difficult it can be to attack a removal order collaterally (i.e. through a motion to reopen) than on direct appeal.  Mazariegos was granted adjustment of status and a waiver under 212(h) of the INA, but the Government appealed, and the Board of Immigration Appeals reversed the Immigration Judge, finding that Mazariegos did not merit an exercise of discretion.  Instead of appealing to a circuit court, he filed a motion to reopen with the Board, which was denied, and appealed to the First Circuit.  The First Circuit stated that "Mazariegos may have fared better had he sought review at this point [after the denial of his waiver by the Board] rather than following a motion to reopen denial, and we are not unsympathetic to the difficult place he finds himself in."

It's a curious statement, given that the court later recognizes that it would not have jurisdiction to review a discretionary denial of a 212(h) waiver.  "The law [the Government] cites indeed provides that courts cannot review the discretionary component of the Attorney General's section 212(h) waiver decision."

And yet, the procedural posture of a collateral attack is so much more difficult for a non-citizen to litigate, given the presumption of finality of orders of removal, that perhaps a circuit court appeal (to the extent that a judicially cognizable question of law or constitutional claim could be raised) would have served Mazariegos better.

The full text of Mazariegos v. Lynch can be found here: http://media.ca1.uscourts.gov/pdf.opinions/14-1431P-01A.pdf  

Ninth Circuit Issues Unpublished Decision Finding that a Utah Conviction for Sexual Abuse of a Minor is not an Aggravated Felony

An unpublished crimmigration/illegal reentry decision - my favorite type of unpublished decision!  In evaluating whether a Utah conviction for sexual abuse of a minor qualified as a sexual abuse of a minor aggravated felony, the Ninth Circuit noted that the statute criminalizes non-sexual conduct—such as kicking a boy’s genitals—and thus, the statute is broader than generic federal definition of sexual abuse of a minor. 

Switching gears, the court also addressed whether the intent requirement of the statute, the court stated that "the Utah Court of Appeals appears to treat the two prongs of the intent element as alternative means of satisfying a single intent element.  Thus, a jury does not need to agree on whether a defendant had an intent to harm or an intent to arouse his sexual desire to render a guilty verdict.  This conclusion is bolstered by the charging information in this case, which listed both prongs of the intent element."  Because the statute is not divisible with respect to the intent element, the modified categorical approach is not appropriate.

The lesson: Utah Code § 76-5-404.1(2) is not a sexual abuse of a minor aggravated felony.

The full text of US v. Morales-Landa can be found here: http://cdn.ca9.uscourts.gov/datastore/memoranda/2015/06/22/14-50460.pdf

Seventh Circuit Remands a Denied I-751

Hernandez requested a waiver of the joint petition to remove the conditions on his residence, on the ground that he entered into a bona fide marriage that had ended in divorce.  Because of the many years that had passed since his divorce, Hernandez had very little supporting documentation to prove that he had entered into a bona fide marriage.  He did, however, testify unequivocally that married his ex-wife because he loved her.

On appeal, the Seventh Circuit disagreed with the Board of Immigration Appeals' finding that Hernandez had not submitted sufficient evidence to demonstrate by a preponderance of the evidence that his marriage was bona fide.  "Hernandez testified unequivocally that he did not marry Winger to obtain residency but because he 'loved her.'  If, as the Board assumed, Hernandez testified truthfully, then this testimony alone is enough to prove that his marriage to Winger was more likely than not bona fide.  Because the Board elected to credit all of Hernandez’s testimony—including his assurance that love, not residency, motivated him to accept Winger’s proposal—the only conclusion it could then logically reach was that Hernandez’s marriage was bona fide. The Board’s failure to reach that conclusion is a legal error. "

In response the Government's contention that Hernandez was required to provide corroborating documentation under the REAL ID Act, the court stated that "this provision of the REAL ID Act is irrelevant here because neither the IJ’s nor the Board’s ruling rests on a determination that Hernandez had failed to provide available corroborating evidence. "

The decision in Hernandez Lara v. Lynch can be found here: http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2015/D06-18/C:14-3305:J:Williams:aut:T:fnOp:N:1571971:S:0 

Ninth Circuit Determines that a California Conviction for Unlawful Laser Activity is not Categorically a CIMT

The Ninth Circuit addressed a conviction under section 217.26 of the California Peal Code for unlawful laser activity.  The court determined that the statute at issue criminalized the use of a laser pointer.  In rejecting the Board of Immigration Appeals' finding that the conviction qualified as a crime involving moral turpitude, the court stated that "such handheld laser demonstration devices are certainly not associated with 'deadly weapons.'”  

"Not only do other Cal. Penal Code provisions show that using a laser pointer is not equivalent to terrorizing someone with a laser targeting device, but § 417.26 does not include any 'appears-to-be-a-deadly-weapon' element.  If California wanted § 417.26 to include such an element, it could have done so, as it did in § 417.4, which prohibits drawing an 'imitation firearm . . . in such a way as to cause a reasonable person apprehension or fear of bodily harm.'”  As such, the court concluded that " § 417.26 has more in common with non-turpitudinous simple assault than with the morally turpitudinous 'threats with intent to terrorize' of § 422," and it is not a categorical match to the definition of a CIMT.  As the Government did not ask the Court to apply the modified categorical approach, the Court did not consider whether the statute was divisible and subject to a modified categorical inquiry.

The full text of Coquico v. Lynch can be found here: http://cdn.ca9.uscourts.gov/datastore/opinions/2015/06/17/09-73867.pdf

Ninth Circuit Invalidates the Departure Bar (Again!)

Two regulations that predate the passage of IIRIRA (collectively referred to as "the departure bar") provide that a noncitizen who is the subject of immigration proceedings may not make a motion to reopen or reconsider “subsequent to his or her departure from the United States.” In Matter of Armendarez-Mendez, the Board of Immigration Appeals (BIA) held that the departure bar survived the passage of IIRIRA.  Previously, the Ninth Circuit had held that the departure bar does not apply to noncitizens who departed the United States either before removal proceedings have commenced, or after removal proceedings were completed.  The court has also held that the departure bar is invalid as applied to a noncitizen who is involuntarily removed from the United States. 

In Toor v. Lynch, the court addressed whether the departure bar may be applied to a noncitizen who voluntarily departs the United States during removal proceedings.  Consistent with the other circuits who have addressed the question, the Ninth Circuit held that the departure bar is inapplicable regardless of how the non-citizen left the United States.  Rejecting the decision in Armendarez-Mendez, the court stated that "Congress has directly spoken to the precise question at issue; the text of IIRIRA makes clear that the statutory right to file a motion to reopen and a motion to  reconsider is not limited by whether the individual has departed the United States."  "IIRIRA limits the right to file a motion to reopen and a motion to reconsider by number, time, and content, but not in any respect by whether the individual has departed the United States."

Notably, the Court stated that because Toor's motion to reopen was filed in a timely manner, it need not decide if the departure bar could be applied to untimely motions to reopen.  

The full text of Toor v. Lynch can be found here: http://cdn.ca9.uscourts.gov/datastore/opinions/2015/06/17/10-73212.pdf

Ninth Circuit Applies the Modified Categorical Approach to Find a Respondent was Convicted of an Aggravated Felony

In 2009, California filed an Information charging Ruiz-Vidal with sale and possession for sale of a controlled substance, which the Information identified as methamphetamine. Ruiz-Vidal pleaded no contest to simple possession—a lesser included offense of the sale charge.  Because the original complaint did not contain a charge for simple possession, Ruiz-Vidal argued that the record of conviction did not establish what substance was involved in his conviction, and thus, under the modified categorical approach, he was not removable for the conviction.  

The Ninth Circuit disagreed, finding that because Ruiz-Vidal specifically pled to a lesser included offense of Count 1 (the sale and possession of methamphetamine charge), the Court could consider the substance identified in Count 1 under the modified categorical approach.  "California defines a lesser included offense as: '[w]here an offense cannot be committed without necessarily committing another offense, the latter is a necessarily included offense.'  California courts determine whether an offense is necessarily included by reviewing whether the facts actually alleged in the accusatory pleading include all the elements of the lesser offense, so that the greater offense cannot be committed without also committing the lesser offense."  Moreover, "because possession of each different drug under California Health and Safety Code § 11377(a) constitutes an entirely separate offense, the indictment charged him with the specific offense of sale of methamphetamine, not sale of a controlled substance.  A conviction for possession of any other drug couldn’t be a lesser included offense to sale of methamphetamine."  Finally, the court noted that "[d]uring the colloquy, the judge specifically asked Ruiz-Vidal whether there was a factual basis for a conviction under the possession offense 'lesser included to count 1.'"  This, the court determined, provided the necessary link between the substance listed in count 1 and Ruiz-Vidal's conviction.

Unclear from the decision is how a simple possession conviction can be properly characterized as an aggravated felony.  Crimmigration nerds across the country (or at least one in Los Angeles) are dying to know.

The full text of Ruiz-Vidal v. Lynch can be found here: http://cdn.ca9.uscourts.gov/datastore/opinions/2015/06/17/11-73433.pdf

BIA Protects the Rights of Returning Lawful Permanent Residents

In a short but excellent decision, the Board of Immigration Appeals addressed a scenario that has plagued immigration practitioners for years.  Who bears the burden of proving removability when a person has been granted lawful permanent residence and returns from a trip abroad, but the Department of Homeland Security (DHS) alleges that they were never entitled to residency in the first place? In that case, may the DHS charge the returning resident with inadmissibility, even if he does not fit into the narrow grounds listed in section 101(a)(13)(C) of the INA? No - it cannot.  A returning resident who does not fall into these narrow grounds can only be charged with deportability, not inadmissibility.  This is important, because the DHS bears the burden of proving deportability, while a noncitizen bears the burden of proving admissibility.

The full text of Matter of Pena can be found here: http://www.justice.gov/eoir/file/478111/download

Supreme Court Addresses the Denial of a Visa by a Consulate

Din is a U.S. citizen, married to an Afghani national.  Din filed an immigrant petition on her husband's behalf, which was approved.  However, when Berashk (Din's husband) went to the U.S. consulate, his request for an immigrant visa was denied on account of the State Department's determination that Berashk had engaged in terrorist activities.  The consular officer did not provide any further details as to how that determination had been reached.  Din sued in federal court, alleging that the consular official's decision (and failure to adequately explain that decision) impinged on her constitutional right to live with her husband in the United States.  The Supreme Court determined, unfortunately for Din, that there is no such constitutional right.

The Court first addressed whether the denial of Berashk’s visa application deprived Din of any life, liberty, or property interests.  "Din, of course, could not conceivably claim that the denial of Berashk’s visa application deprived her—or for that matter even Berashk—of life or property; and under the [] historical understanding [of the Fifth Amendment right to due process], a claim that it deprived her of liberty is equally absurd. The Government has not 'taken or imprisoned Din, nor has it 'confine[d]' her, either by 'keeping [her] against h[er] will in a private house, putting h[er] in the stocks, arresting or forcibly detaining h[er] in the street.' Id.  Indeed, not even Berashk has suffered a deprivation of liberty so understood."  

Din had specifically alleged that her liberty interest in her marriage, her right of association with her spouse, her liberty interest in being reunited with certain blood relatives, and her liberty interest as a U. S. citizen under the Due Process Clause to be free from arbitrary restrictions on her right to live with her spouse had been violated by the consular official's determination.  Turning to the question of whether any of Din's fundamental rights had been violated, the Court acknowledged that "Din does not explicitly argue that the Government has violated this absolute prohibition of the substantive component of the Due Process Clause, likely because it is obvious that a law barring aliens engaged in terrorist activities from entering this country is narrowly tailored to serve a compelling state interest.  She nevertheless insists that, because enforcement of the law affects her enjoyment of an implied fundamental liberty, the Government must first provide her a full battery of procedural due-process protections."

The Court determined that nothing in its jurisprudent "establishes a free-floating and categorical liberty interest in marriage (or any other formulation Din offers) sufficient to trigger constitutional protection whenever a regulation in any way touches upon an aspect of the marital relationship."  Moreover, "a long practice of regulating spousal immigration precludes Din’s claim that the denial of Berashk’s visa application has deprived her of a fundamental liberty interest."

Finally, the Court concluded Because Fauzia Din was not deprived of “life, liberty, or property” when the Government denied Kanishka Berashk admission to the United States, there is no process due to her under the Constitution. To the extent that she received any explanation for the Government’s decision, this was more than the Due Process Clause required. 

Justice Kennedy, concurring with plurality opinion, would not address whether Din has a fundamental right that is implicated in the immigration process of her husband, but would instead decide that any due process rights she has were satisfied by the process provided by the consular official (i.e. the denial notice stating that he had participated in terrorist activities).

The full text of Kerry v. Din can be found here: http://www.supremecourt.gov/opinions/14pdf/13-1402_e29g.pdf

Supreme Court Addresses Federal Court Jurisdiction over Untimely Motions to Reopen

Mata, the petitioner, filed an untimely motion to reopen his removal proceedings.  He argued that his motion was not time barred because his prior attorney had provided him with ineffective assistance of counsel, which should excuse the tardy filing of the motion to reopen.  The Board of Immigration Appeals (Board) denied the motion, finding that it was untimely and that the filing deadline need not be equitably tolled because Mata had not demonstrated any prejudice from his prior counsel's alleged ineffective assistance.  On appeal to the Fifth Circuit, the court construed any request for equitable tolling as a request for the Board's to exercise its sua sponte authority to reopen proceedings.  As the circuit court had no jurisdiction to review the Board's decision not to exercise its sua sponte authority, the Fifth Circuit dismissed the appeal.  The Fifth Circuit is the only circuit that has ruled that it lacks jurisdiction to review equitable tolling requests, and the Supreme Court accepted review of Mata's case in order to resolve the circuit split on the issue.

The Supreme Court reaffirmed that the corcuit courts have jurisdiction when a non-citizen appeals from the Board’s denial of a motion to reopen a removal proceeding.  "Nothing changes when the Board denies a motion to reopen because it is untimely—nor when, in doing so, the Board rejects a request for equitable tolling.   Under the INA, as under our century-old practice, the reason for the [Board]’s denial makes no difference to the jurisdictional issue. Whether the [Board] rejects the alien’s motion to reopen because it comes too late or because it falls short in some other respect, the courts have jurisdiction to review that decision." 

The Supreme Court noted that even if the Board additionally noted that it would not exercise its sua sponte authority to reopen a case, that did not deprive a federal court of its authority to review any other statutory ground invoked by a non-citizen when requesting reopening of his proceedings.  The Supreme Court left open the question of whether a federal court could properly decline review on jurisdictional ground the Board's refusal to exercise its sua sponte authority to reopen proceedings.

The full text of Mata v. Lynch can be found here: http://www.supremecourt.gov/opinions/14pdf/14-185_i4dk.pdf

Sixth Circuit Addresses Motion to Reopen Based on Lack of Notice

In a precedential decision addressing a motion to reopen based on lack of notice, the applicant claimed that the immigration officer inappropriately listed an address on the Notice to Appear that the applicant indicated belonged to an acquaintance, but which the applicant did not indicate was his address.  Though personally served with the Notice to Appear, the applicant did not attempt to correct the address by filing a change of address form with the Immigration Court.  As a result, the notice of hearing was mailed to the address on the Notice to Appear, the applicant did not receive the notice and did not attend his court hearing, and the Immigration Judge ordered the applicant removed in his absence.

Recognizing that the Ninth Circuit had reopened a case under similar circumstances, the Sixth Circuit respectfully disagreed with the Ninth Circuit, and determined that the "fact that the immigration official made the alleged error does not absolve Thompson.  Thompson had both the opportunity to provide his current, correct address at the time he received the Notice to Appear and the obligation to ensure that the INS had an address at which he could be reached throughout the proceedings.  This obligation necessarily included a duty to correct the address listed on the Notice to Appear, particularly since the Notice to Appear informed him that all future mailings would be sent to the address listed on the form."

The full text of Thompson v. Lynch can be found here: http://www.ca6.uscourts.gov/opinions.pdf/15a0122p-06.pdf 

Fourth Circuit Addresses Maryland Conviction for Causing Abuse to a Child

The Fourth Circuit determined that a Maryland conviction for causing abuse to a child is not categorically a sexual abuse of a minor aggravated felony.  The court noted that Board of Immigration Appeals (Board) has yet to issue a published decision providing a generic definition of sexual abuse of a minor; the Board's previous precedential decision merely hinted at what the definition of sexual abuse of a minor might encompass, without providing a concrete generic definition for the federal courts to employ.

The court noted that the least culpable conduct criminalized under the statute includes the failure to act to prevent sexual abuse of a child when one has a duty to do so.  In light of the lack of a clear generic definition articulated by the Board, the court remained unconvinced that a mere failure to prevent harm comes within the ambit of sexual abuse of a minor.

Though this a promising decision, it is subject to being reviewed when the Board issues a precedential decision that the Fourth Circuit believes provides a concrete definition of sexual abuse of a minor.

The full text of Amos v. Lynch can be found here: http://www.ca4.uscourts.gov/Opinions/Published/132005.P.pdf

Fifth Circuit Addresses Good Moral Character Requirements for Cancellation of Removal

In a reissued decision, the Fifth Circuit addressed whether confinement in a penal institution for more than 180 days for a conviction that does not qualify as a crime involving moral turpitude would still pose a statutory bar to establishing the requisite good moral character for cancellation of removal.  The court also addressed whether the 10 years of good moral character required for cancellation of removal dates back from the adjudication of the application for cancellation or from the date of service of the Notice to Appear.

The court concluded that an applicant is precluded from establishing the requisite good moral character if they are incarcerated for more than 180 days, even if the incarceration is not related to a crime involving moral turpitude.  The court further concluded that good moral character must be established in the 10 years preceding adjudication of the cancellation application.

The full text of Rodriguez-Avalos v. Lynch can be found here: http://www.ca5.uscourts.gov/opinions/pub/13/13-60736-CV1.pdf

My blog post about the original decision in Rodriguez-Avalos can be found here: http://www.sabrinadamast.com/journal/2015/3/8/no-good-moral-character-for-immigrant-who-serves-7-months-for-a-federal-conviction-for-falsely-claiming-to-be-a-us-citizen

Sixth Circuit Rules that Courts Need not Provide Asylum Applicants with Advance Notice of Evidence Required

The Sixth Circuit determined that the Immigration and Nationality Act does not require an Immigration Judge to advise an asylum applicant of the corroborating evidence he needs to submit to support his claim.  In so doing, the Sixth Circuit agreed with a similar ruling issued by the Seventh Circuit, but disagreed with the Ninth Circuit's stance on the issue.

The full text of Gaye v. Lynch can be found here: http://www.ca6.uscourts.gov/opinions.pdf/15a0115p-06.pdf

Seventh Circuit Overturns Immigration Judge's Adverse Credibility Determination

In a very succinct and logical opinion, the Seventh Circuit undermined an Immigration Judge's adverse credibility determination, one alleged inconsistency at a time.  For each perceived inconsistency, the court explained why the cited statements did not cast doubt on the applicant's credibility.  In addition, the court tore apart the Immigration Judge's list of corroborating documentation, finding each of the proposed items to be unreasonable.

The decision is a fantastic template for how to draft a straightforward and persuasive appeal of an adverse credibility determination.

The full text of Liu v. Lynch can be found here: http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2015/D06-11/C:14-2354:J:Flaum:aut:T:fnOp:N:1568189:S:0

BIA Addresses Evaluation of Asylum Claims for Applicants with Cognitive Disabilities

In a published decision, the Board of Immigration Appeals (BIA) expressed concern with an IJ's evaluation of a cognitively disabled individual's credibility.  First, the BIA noted that the presence of clear indicia of mental incompetence, and found that the Immigration Judge should have held a competency hearing, even though the applicant was represented by counsel.  Second, the BIA determined that "where a mental health concern may be affecting the reliability of the applicant’s testimony, the Immigration Judge should, as a safeguard, generally accept that the applicant believes what he has presented, even though his account may not be believable to others or otherwise sufficient to support the claim.  The Immigration Judge should then focus on whether the applicant can meet his burden of proof based on the objective evidence of record and other relevant issues.  This safeguard will enhance the fairness of the proceedings by foreclosing the possibility that a claim is denied solely on testimony that is unreliable on account of the applicant’s competency issues, rather than any deliberate fabrication."

The full text of Matter of J-R-R-A- can be found here: http://www.justice.gov/eoir/file/477361/download