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Madiagne Diop v. Loretta Lynch, 4th Cir. (2015)
Madiagne Diop v. Loretta Lynch, 4th Cir. (2015)
No. 14-2115
MADIAGNE DIOP,
Petitioner,
v.
LORETTA E. LYNCH, Attorney General,
Respondent.
Argued:
Decided:
December 2, 2015
continuance
proceedings
Because
so
the
or
he
administrative
could
receive
immigration
judge
closure
mental
did
not
of
his
health
err
removal
evaluation.
procedurally
or
and
granted
overstayed
his
entry
six-month
only
visa
until
and
April
has
14,
resided
1998.
in
the
Diop
United
On
psychotic
January
episode
14,
at
2012,
his
Diop
workplace,
was
a
arrested
Bed
Bath
following
&
Beyond
a
in
sexual
assault,
and
resisting
arrest.
Based
on
his
Diop
eventually
pled
guilty
to
three
counts
of
second-
degree assault. He was sentenced to 120 days for each count. The
court suspended all of his sentences and placed him on probation
for three years. The Department of Homeland Security served Diop
with a Notice to Appear on October 10, 2012. The Notice deemed
Diop removable under 8 U.S.C. 1227(a)(1)(B) as a nonimmigrant
who
remained
in
the
United
States
longer
than
permitted
in
his
removal
proceedings,
Diop
appeared
before
an
mental
competency
when
it
reconvened
on
December
13,
Do
you
have
any
Diop: No.
history
of
mental
health
IJ: No? Okay. And do you understand why you are in these
proceedings?
Diop: Not really.
IJ: Okay. Okay, what do you understand the purpose of these
hearings that youve been brought to be?
Diop: Excuse me?
IJ: What do you understand the purpose of these hearings?
Diop: Its about immigration, right?
IJ: Yes, Okay, this is about immigration. And if you have
anything that you . . . need to tell your attorney about
your Immigration history or Immigration status, do you
think you will be able to communicate with her and tell her
what you need to tell her?
Diop: Sure.
IJ: Okay.
Diop: Sometimes its hard. Where Im at, I have to pay to
use the phone and it costs like $20.
IJ: Okay. Okay, but other than that, once you can get her
on the phone do you feel like you can communicate with her
about your situation?
Diop: Yes.
J.A.
143-45.
Based
on
this
exchange,
his
counsels
on
allegations
February
against
7,
him
2013,
and
Diop
conceded
admitted
that
he
all
was
factual
removable.
prosecutorial
discretion.
J.A.
155.
The
IJ
granted
the
continuance.
On April 23, 2013, Diop moved to either administratively
close or continue proceedings in order to await passage of an
immigration reform bill in Congress. Diop argued that the law
would grant him legal status despite his prior convictions. The
IJ refused to continue the case pending legislation that has
not been enacted and likely would not be enacted in its current
form. J.A. 124. She granted Diop voluntary departure, or in the
alternative, ordered his removal.
Diop filed an appeal to the Board of Immigration Appeals
(BIA)
on
June
6,
2013,
arguing
that
the
IJ
should
have
after
his
arrest
on
January
14,
2012.
Diop
also
posited that a mental health assessment would have given him the
opportunity
to
advance,
for
the
first
time,
claim
for
was
competent
to
proceed.
The
Board
noted
that
Diop
episode
as
merely
reflection
of
his
mental
state
at
that
due
process.
Reno
v.
Flores,
507
U.S.
292,
306
unfair
and
that
the
defect
prejudiced
the
outcome of the case. Anim v. Mukasey, 535 F.3d 243, 256 (4th
Cir. 2008).
The IJ denied Diop an independent psychological evaluation
because she deemed him competent to proceed. Competency has long
been considered an issue of fact. See Thompson v. Keohane, 516
U.S. 99, 111 (1995). The IJs factual finding of competency is
reviewed under the substantial evidence standard and treated as
conclusive
unless
the
evidence
6
presented
was
such
that
any
BIA
established
in
Matter
of
M-A-M
the
process
for
to
the
case
at
hand.
First,
the
IJ
starts
with
factual
understanding
proceedings,
(2)
representative
if
can
there
of
the
nature
consult
with
is
one,
and
(3)
and
object
of
the
the
attorney
or
has
reasonable
there
are
indicia
of
incompetency,
the
IJ
should
the
circumstances.
Id.
The
Board
offers
some
examples
of
IJ
should
determine
by
preponderance
of
the
evidence
any
safeguard.
particular
It
opts
evaluation,
instead
for
or
an
adopt
any
adaptable
particular
case-by-case
words,
competency
is
institutional
constraints
on
an
issue
appellate
8
that
courts:
highlights
Face
to
the
face
removal
proceedings
specifically,
competency
turns
on
little
details
that
dry
transcript
cannot
hope
to
capture.
Ultimately, assessing the competency of individuals subject
to removal comes down to a balance between competing interests.
On
the
system
one
hand,
while
for
facing
someone
the
navigating
daunting
an
prospect
unfamiliar
of
legal
deportation,
initial
stage
of
the
M-A-M
analysis:
there
were
no
at
480.
suggesting
The
only
incompetency
evidence
is
the
that
even
comes
above-noted
close
to
psychological
assessment of Diop taken mere days after his arrest. While past
mental history can certainly bear on competency, it is by no
means dispositive. See id. at 479. In this case, Diop denied any
history of mental health troubles, while his counsel had no
reason to believe that he suffered from an ongoing medical
problem. J.A. 137. In that context, a single snapshot of mental
health concerns taken ten months earlier can hardly represent
Diops state of mind when he arrived in immigration court.
Diop tried to prove this very point. In arguing before the
IJ for yet another continuance, he sought to portray his violent
behavior as an aberrant and isolated psychotic outburst brought
on by lack of sleep. J.A. 179. The strategy at that time
apparently was to demonstrate that his stable and non-violent
nature warranted a continued stay in the United States. Diop
submitted to the IJ mental health assessments conducted closer
in time to the removal proceedings, all of which indicated he
had
been
cooperative
with
treatment,
found
no
psychiatric
the
BIA
to
secure
reversal
11
of
his
removal
order.
We
on
the
side
of
caution,
the
IJ
nonetheless
took
hearing
and
inquiring
specifically
about
his
mental
Diop
provided
ample
basis
for
finding
of
competency.
Supreme
Court
has
cautioned
against
flyspecking
the
180
(1975).
The
IJ
did
what
she
deemed
necessary
to
not
case
where
the
IJ
sacrificed
due
process
for