What does the judge have to decide?
The test has three parts. Does the person have a rational and factual understanding of what the case is and what it is for? Can the person consult a lawyer, if there is one? Does the person have a reasonable opportunity to examine and present evidence and question witnesses? The Board of Immigration Appeals set this test in 2011, in the case of a lawful permanent resident with schizophrenia who represented himself. Competency is presumed, so with no signs of a problem the judge need not ask. In Matter of J-S-S- (2015) the Board added that neither side carries a formal burden; once signs appear, the judge decides whether a preponderance of the evidence shows competency. Your next step: raise the concern on the record yourself. Do it at the master calendar hearing if you can.
What counts as a sign of incompetency, and what should the family collect?
The Board's examples include being unable to understand or answer questions, unable to stay on topic, or highly distracted. Paper evidence counts too: medical reports, records from a criminal case, special-education records, teachers' or social workers' letters, disability-benefit applications, and sworn statements from relatives. DHS must give the court relevant material it holds, which matters most for people in detention. Competency can change over time, so the question stays open throughout the case. Do not rely on a diagnosis alone; the Board says serious illness does not automatically mean incompetency, so ask the treating doctor to describe what the person can and cannot do in a hearing. Raise it early. M-A-M- cites a First Circuit case finding no violation where a represented person's lawyer never asked for an evaluation and the record showed no sign of incompetency.
What can the judge do while the case continues?
Usually the case continues with safeguards. Unlike a criminal trial, an immigration hearing can go forward with a person who lacks competency if it is fair. To assess competency, a judge can simplify questions, ask about medication, order an evaluation, or postpone the case for records. Safeguards can include letting a relative or friend help, helping develop the record, or changing venue to be nearer family or treatment. Under 8 C.F.R. § 1240.4 a lawyer, guardian, relative or friend served with the Notice to Appear may appear if the person cannot. A judge cannot accept an admission of removability from an unrepresented incompetent person who has no attorney, relative, guardian or friend present. Next step: ask for specific safeguards in writing, name who can help the person, and say why each one is needed.
Can the case be ended if the person is incompetent?
Yes, in removal proceedings, though it is not the usual result. Under 8 C.F.R. § 1003.18(d)(1)(i)(B), a judge must terminate the case when fundamentally fair proceedings are not possible because the person is mentally incompetent and adequate safeguards are unavailable. The record has to show that. In Matter of M-J-K- (2016), decided before this provision, the Board sent back a case a judge had ended, saying untried safeguards might allow it to continue. In Matter of C-L-R- (2026), the Board held that a judge cannot end withholding-only proceedings as a safeguard, but that limit concerns those proceedings, not ordinary removal cases. DHS can also appeal a termination. Next step: ask for safeguards first, then ask in writing for termination in the alternative, explaining which safeguards were tried and why the hearing still cannot be fair.
Will the court give the person a lawyer?
Not as a general rule. The statute gives a privilege of representation at no expense to the government, and M-A-M- did not change that. Under the Franco-Gonzalez class action, EOIR provides qualified representatives and forensic evaluations to unrepresented, detained people in Arizona, California and Washington who are found mentally incompetent to represent themselves. For Florida the answer is uncertain. EOIR calls this a nationwide program but says services go to people who qualify under Franco-Gonzalez. Matter of C-L-R- (2026) describes a judge appointing a qualified representative through a national program, in a case with Colorado counsel, and it found that plus other measures adequate. So a person detained in Florida should still ask the judge directly, without counting on it. EOIR's page was last updated June 18, 2025, so confirm the program is operating in your court. If the person is not detained, look for a lawyer now.
What if the hearing went ahead and nobody addressed competency?
A Form EOIR-26 appeal must be received by the Board within 30 calendar days, so mailing on day 30 is too late. The published 8 C.F.R. § 1003.38 still shows 10 days for many appeals, but a court vacated that change in March 2026 and EOIR's PM 26-02 confirms 30. It could be reissued, so check your order and file early. The Board reviews a competency finding for clear error but chooses safeguards afresh. In July 2026, in Rana v. Blanche, the First Circuit set aside a removal order because the judge had a mental-health report and never ruled on competency. That court does not bind California or Florida. If illness caused a missed hearing, read our in absentia order guide; for later evidence see motions to reopen. Ace Immigration handles these cases through its removal defense practice. Never let someone sign a sworn paper they cannot understand.