[00:00:02] Speaker 02:
Thank you.

[00:00:02] Speaker 02:
We'll now hear argument in 23-9598, Singh versus Garland.

[00:00:16] Speaker 02:
Mr. Spurgeon.

[00:00:17] Speaker 03:
Good morning, Your Honor.

[00:00:19] Speaker 03:
May I please support counsel?

[00:00:21] Speaker 03:
I'm Stephen Spurgeon.

[00:00:23] Speaker 03:
I'm here to represent Jasner Singh as petitioner.

[00:00:26] Speaker 03:
In this case, Your Honor, I'd like to address two points.

[00:00:31] Speaker 03:
this morning.

[00:00:33] Speaker 03:
First of all, I would impress upon the court that the immigration judge in this case abused his discretion under this court's precedent in Jimenez Guzman v. Hoard.

[00:00:48] Speaker 03:
And secondly, I'd like to address the fact that the Board of Immigration Appeals failed to follow its own precedent in the matter of MAM case in this matter.

[00:01:00] Speaker 03:
Addressing, first of all, the Jimenez-Nusman case.

[00:01:08] Speaker 03:
Board precedent and immigration regulation permits an immigration judge to grant a continuance for good cause.

[00:01:18] Speaker 03:
On April the 5th of 2019, Mr. Singh, who just recently attained an attorney in March, will lower your files of motion to continue on the basis

[00:01:30] Speaker 03:
that Mr. Singh was suffering from the effects of prolonged starvation and refeeding syndrome and that he did not have an opportunity to prepare him for the court hearing because the day before April the 4th, the time was taken up by immigration officials that were interrogating Mr. Singh for two and a half hours.

[00:01:55] Speaker 03:
And when the time was up, Mr. Singh was too tired and exhausted from the symptoms that the doctors told the judge about in the motion to continue.

[00:02:09] Speaker 03:
That Mr. Singh was likely to suffer from difficulties with memory and focus, and he was likely to suffer from dizziness and fainting spells.

[00:02:20] Speaker 03:
and continued diarrhea and constant headaches and severe insomnia due to, as the court is aware, a 74-day hunger strike.

[00:02:31] Speaker 03:
The he and a dozen other Indians had begun to protest the conditions at the facility they were in because they weren't allowed to practice their religion.

[00:02:41] Speaker 03:
They were given one close and it was cold in that facility.

[00:02:45] Speaker 03:
The hygiene materials weren't being provided and a host of other issues.

[00:02:49] Speaker 02:
How long before the hearing had the hunger strike ended?

[00:02:52] Speaker 02:
Pardon me?

[00:02:53] Speaker 02:
How long before the hearing had the hunger strike ended?

[00:02:56] Speaker 03:
About the 15th of March, Your Honor, is when the record indicates that that ended around the 15th of March.

[00:03:04] Speaker 03:
What is important about that date, Your Honor?

[00:03:08] Speaker 03:
And the hearing was on what date?

[00:03:09] Speaker 03:
April the 5th.

[00:03:12] Speaker 03:
What's important about that date, Your Honor, is that the hearing was previously scheduled for May the 1st.

[00:03:17] Speaker 03:
The way this really worked is Mr. Singh didn't have a lawyer.

[00:03:20] Speaker 03:
The judge says you've got to file your asylum application by February something.

[00:03:25] Speaker 03:
He filed it on time per se.

[00:03:27] Speaker 03:
In the meantime, in March, he was able to get a pro bono lawyer who took over the case

[00:03:32] Speaker 03:
submitted a new application, filed a motion to continue, and March hearing.

[00:03:37] Speaker 03:
The judge on his own, without even ruling on the motion for schedule purposes, said it for May the 1st.

[00:03:45] Speaker 03:
Then the government, after a bunch of chaos in El Paso, Texas, and southern Mexico, and a lot of publicity about these hunger strikes, and a federal judge who intervened on the forced feeding issues, decided the government filed a motion

[00:04:00] Speaker 03:
expedite the hearing back to April the 1st, April the 5th, in order for the hearing.

[00:04:05] Speaker 03:
So at the time, and the pro bono warrior said, he didn't get noticed until March the 27th.

[00:04:11] Speaker 03:
So when they show up on the day of the hearing, he follows a motion to continue, attaches the doctor's notes, who cited Mr. Singh as suffering from prolonged starvation and the effects of refeeding syndrome.

[00:04:25] Speaker 03:
And, to top it all off, when he does seem to hunger strike, the first meal that the government gives him to eat is a Burger King Whopper and French Fries, which makes him severely ill, and then they put him in the general population and he's conditioned to be instant deteriorant.

[00:04:41] Speaker 03:
It's against those facts that the immigration judge denied the motion for continuance and blew off this court's standard under the Jimenez Guzman case

[00:04:54] Speaker 03:
that a judge has to have, number one, a rational explanation for the decision.

[00:04:59] Speaker 01:
Well, for starters, there's a presumption of competency.

[00:05:03] Speaker 01:
There is, Judge.

[00:05:04] Speaker 01:
And then the next step in looking at MAM as well is that if there is an addition of competence problems, the IJ is to inquire.

[00:05:16] Speaker 01:
Yes.

[00:05:16] Speaker 01:
And the IJ fairly thoroughly inquired and made a determination, you're ready to go.

[00:05:24] Speaker 01:
You're able to consult with your counsel.

[00:05:26] Speaker 01:
You're able to state your case.

[00:05:28] Speaker 01:
And that's entitled to some deference.

[00:05:31] Speaker 03:
Not really.

[00:05:32] Speaker 03:
Let me tell you why.

[00:05:33] Speaker 03:
Because the matter of man doesn't give restrictions on what the judge should ask.

[00:05:38] Speaker 03:
It gives examples of what the judge should ask.

[00:05:41] Speaker 03:
And more importantly, when we're talking about an indicia of competency, shouldn't it include at least the doctor's letters that put it before the immigration judge?

[00:05:51] Speaker 03:
that this man is not capable of going forward on this day.

[00:05:55] Speaker 03:
That would be an addition of incompetency.

[00:05:57] Speaker 03:
The fact, and more important, when you're talking about addition of incompetency, matter of man even addresses that issue in respect to what the department's duty is in terms of providing information to the immigration judge on what they know about his competency.

[00:06:13] Speaker 03:
I mean, Judge, the fact of the matter is the day before, two of the ice ages interviewed for two and a half hours.

[00:06:20] Speaker 03:
Don't you think

[00:06:21] Speaker 03:
that there ought to be something in that interview about his focus, whether he was able to remember, whether he was able to respond to the questions.

[00:06:30] Speaker 03:
The immigration judge did not ask the immigration officials, the Department of Homeland Security lawyers, to provide any of that information, and they didn't volunteer any of that information.

[00:06:40] Speaker 03:
Mr. Singh's attorney knew about that, right?

[00:06:45] Speaker 03:
Who found out that day when he's going to prepare his client

[00:06:51] Speaker 03:
the day before the hearing that they were interviewing him for two and a half hours.

[00:06:55] Speaker 03:
He wasn't in the room.

[00:06:57] Speaker 03:
But he wasn't in the room for the interview.

[00:06:58] Speaker 02:
But he knew about that interview.

[00:07:00] Speaker 03:
He didn't raise anything at the hearing?

[00:07:05] Speaker 03:
He did not.

[00:07:06] Speaker 03:
But the matter of MAM doesn't put the requirement on him.

[00:07:09] Speaker 03:
It puts the requirement on the department and the judge.

[00:07:12] Speaker 02:
Well, if the judge doesn't know about an event that you think is relevant, and counsel that knows about it

[00:07:20] Speaker 02:
And Mr. Singh himself knows about it, and they don't mention that.

[00:07:25] Speaker 02:
How was that an abuse of discretion by the judge not to inquire about something he didn't know about?

[00:07:30] Speaker 03:
Fair question.

[00:07:31] Speaker 03:
Fair question.

[00:07:32] Speaker 03:
Fair question.

[00:07:33] Speaker 03:
But the matter of MAM puts the duty on the department as well to provide that information.

[00:07:38] Speaker 03:
But let's get to the real point.

[00:07:42] Speaker 03:
The judge's explanation, which is not based on, I believe, the court's position, is it has to be a rational explanation.

[00:07:50] Speaker 03:
The judge's rational explanation is, and I quote, it appears to me you're simply malingering and attempting to delay these proceedings.

[00:08:00] Speaker 03:
And the judge doubles down on his written decision and says the same thing.

[00:08:05] Speaker 03:
Now, how is it remotely, how is it remotely rational that Mr. Singh, who's been on a hunger strike for 74 days, protesting all of these conditions,

[00:08:21] Speaker 03:
suddenly wants to stay longer in the facility and because he's malingering.

[00:08:27] Speaker 03:
And more importantly, why didn't the immigration judge address that?

[00:08:32] Speaker 03:
There wasn't a single question asked about Mr. Singer, you having difficulties with your memory and focus today.

[00:08:38] Speaker 03:
Your Honor, did you judge know she mentioned about the thorough examination?

[00:08:42] Speaker 03:
Well, that's where it wasn't thorough.

[00:08:43] Speaker 03:
He asked her that, could you sit, could you talk, could you walk, could you stand up?

[00:08:48] Speaker 03:
Those don't have anything to do with memory and focus.

[00:08:51] Speaker 03:
And the judges told him he's going to have a problem with memory and focus, and he didn't ask her question one.

[00:08:57] Speaker 03:
He didn't ask her question one about, when's the last time you were dizzy?

[00:09:00] Speaker 03:
When's the last time you had a fainting spell?

[00:09:02] Speaker 03:
When's the last time you had diarrhea?

[00:09:04] Speaker 03:
When's the last time you had a constant headache?

[00:09:06] Speaker 03:
When's the last time you had severe insomnia?

[00:09:09] Speaker 03:
None of it.

[00:09:10] Speaker 03:
And that's why, and he didn't tell us other than I think you're malingering, what his explanation was supposed to be rational.

[00:09:18] Speaker 03:
Number two.

[00:09:19] Speaker 01:
Well, before we leave that, and I hear what you're saying, dude, but looking at MAM, judge or the parties may observe, there's a word,

[00:09:29] Speaker 01:
Certain behaviors by the respondents, such as inability to understand and respond to questions, the inability to stay on topic, or a high level of distraction.

[00:09:37] Speaker 01:
So again, it may be that we would rule differently on that, but it's not the novel.

[00:09:47] Speaker 01:
The IJ gets some deference, and the IJ is the one who is in the room.

[00:09:52] Speaker 03:
And then MAM explains some details of what they can do.

[00:09:56] Speaker 03:
It's not restricted.

[00:09:57] Speaker 03:
MAM also says that a judge can grant a continuous together of the information.

[00:10:02] Speaker 03:
And that's explicit in the opinion.

[00:10:06] Speaker 03:
And the judge didn't even look at that part.

[00:10:08] Speaker 03:
Number two, they can get the part from established policies.

[00:10:11] Speaker 03:
It sure did.

[00:10:12] Speaker 03:
Regulation 8 CFR100310B specifically provides that an immigration judge has to make a decision on an asylum application within 180 days if the date is filed.

[00:10:23] Speaker 03:
This was filed in February of 2019.

[00:10:27] Speaker 03:
180 days is what, August or September?

[00:10:30] Speaker 03:
The judge had plenty of time under the regulations without any pressure from anybody in Washington to make a decision within the timeframe.

[00:10:38] Speaker 03:
So there wasn't any rush to judgment on this, and there wasn't any reason why the judge couldn't follow the established policy to provide up to 180 days to make the decision.

[00:10:47] Speaker 03:
Number three.

[00:10:48] Speaker 03:
The court also said that there has to be an impermissible basis

[00:10:53] Speaker 03:
The impermissible basis here, and the judge tells us what the impermissible basis is, he said that in order for Mr. Seen, that Mr. Seen had to prove a specific medical deficiency that would prevent him from going forward.

[00:11:06] Speaker 03:
It may have been saying anything about that.

[00:11:09] Speaker 03:
I'm not even sure where the impermissible judge came up with it.

[00:11:11] Speaker 03:
But that's the impermissible basis.

[00:11:13] Speaker 03:
And when you take all three, the standard is met under the Hernandez-Buzma case, second issue.

[00:11:24] Speaker 03:
The board didn't apply matter of MAM to this judge.

[00:11:32] Speaker ?:
As I mentioned before, matter of MAM expressed these days.

[00:11:37] Speaker 03:
Proceedings also may be continued to allow the parties to gather and submit evidence relevant to these matters.

[00:11:46] Speaker 01:
And by that you mean competency, not the underlying merits.

[00:11:52] Speaker 01:
to determine whether there's an addition of competency.

[00:11:55] Speaker 01:
Okay, but we're talking about competency.

[00:11:57] Speaker 03:
We are under 240A-B, 240B-3, okay?

[00:12:02] Speaker 03:
Yeah, because he never reached that.

[00:12:05] Speaker 03:
Basically, he decided there's no addition of incompetency, therefore I'm denying your motion to continue, go forward, all right?

[00:12:13] Speaker 03:
And when you're determining the addition of incompetency,

[00:12:18] Speaker 03:
You've got to at least ask the right questions.

[00:12:22] Speaker 03:
Again, when did you have the diarrhea?

[00:12:24] Speaker 03:
He didn't ask any of those questions.

[00:12:27] Speaker 03:
And if MAM precisely says the judges are supposed to do that, all right?

[00:12:32] Speaker 03:
I want to address one final thing in a few minutes.

[00:12:35] Speaker 03:
And I do have an issue with MAM.

[00:12:38] Speaker 03:
And I expect we're going to hear about it in a minute.

[00:12:42] Speaker 03:
MAM discussed competency in a very narrow, narrow way.

[00:12:48] Speaker 03:
And they discussed it in terms of, do you have a rational and factual understanding of the proceedings?

[00:12:55] Speaker 03:
Have you been able to consult with your attorney?

[00:12:59] Speaker 03:
And have you been able to prepare for the hearing under Section 240B4, where it says you have a right to present testimony and cross-examine witnesses and these kinds of things?

[00:13:09] Speaker 03:
That is an extraordinarily narrow reading.

[00:13:12] Speaker 03:
It's not defined by Congress in terms of what competency is.

[00:13:16] Speaker 03:
And I think in light of recent occurrences at the Supreme Court, it's not entitled to any deference by this court.

[00:13:23] Speaker 03:
But my point is that competency or not competency involves a lot more than that.

[00:13:29] Speaker 03:
And even if he applied matter of MAM to this case, he wasn't able to consult with his lawyer to prepare for the case because the time was taken up by the two ICE agents that interrogated him for two and a half hours.

[00:13:43] Speaker 03:
And his lawyer told the judge, your honor, he was mentally exhausted, he didn't have any focus, he was physically ill, all because of a hunger strike, and all because the Department of Homeland Security put him in the general population as opposed to him being able to get well to appear.

[00:13:59] Speaker 03:
And there's no downside.

[00:14:01] Speaker 03:
Zero downside for this judge to have said, you know, we'll just put that May 1st date back on the calendar.

[00:14:07] Speaker 03:
Get ready, if you get sick, let us know.

[00:14:09] Speaker 03:
You're still worth the wealth in 180 days.

[00:14:14] Speaker 03:
Your Honors, I'm going to sit down and reserve a minute for a rebuttal if I may.

[00:14:18] Speaker 03:
Thank you.

[00:14:31] Speaker 00:
Good morning, Your Honors.

[00:14:32] Speaker 00:
Jonathan Needle, Department of Justice, on behalf of the respondent.

[00:14:36] Speaker 00:
May it please the court

[00:14:38] Speaker 00:
There is ample support in the record for the immigration judge's decision to deny Mr. Singh's request for a continuance and instead move forward with his merits hearing on April 5th, 2019.

[00:14:49] Speaker 00:
Now this hearing took place months after Mr. Singh's initial appearance before the immigration judge and after he was able to retain counsel and after he was able to meet with counsel and furnish him with a

[00:15:04] Speaker 00:
declaration stating the reasons why he feared returning to his home country.

[00:15:09] Speaker 02:
When was that meeting with his counsel?

[00:15:12] Speaker 02:
I'm sorry?

[00:15:12] Speaker 02:
Was that meeting with his counsel the day before the hearing?

[00:15:16] Speaker 00:
The record suggests that there were a number of meetings between Mr. Singh and his counsel from the time that counsel was retained in early March.

[00:15:29] Speaker 00:
So it was nearly one month between the time he found an attorney and the time that the marriage hearing was scheduled.

[00:15:35] Speaker 00:
And there's no dispute that Mr. Singh provided

[00:15:38] Speaker 00:
a declaration provided statements from family members and other individuals in India, which was presented to the immigration judge by his counsel weeks before the April 5th hearing.

[00:15:52] Speaker 00:
And also, it's noteworthy that an amended I-589 was provided on the day of the hearing on April 5th.

[00:16:02] Speaker 00:
This application was actually executed by Mr. Singh.

[00:16:07] Speaker 00:
outside the courtroom, but his signature is clearly on this, what's essentially a second amended asylum application that was submitted to the immigration judge on the day of the hearing.

[00:16:19] Speaker 02:
What was the purpose of the ICE interview, the ICE interrogation the day before the hearing?

[00:16:25] Speaker 00:
The only information about this interview and the record comes from the declaration of Mr. Singh's counsel that he submitted with the continuance motion.

[00:16:34] Speaker 00:
So he represents that the investigators interviewed Mr. Singh for a period of approximately two and a half hours.

[00:16:41] Speaker 00:
He explicitly says it was in the presence of counsel.

[00:16:45] Speaker 00:
And presumably, if an interview lasts that long, Mr. Singh is engaging with the investigators.

[00:16:54] Speaker 00:
He's responding to their questions.

[00:16:56] Speaker 00:
And even though the interview was conducted in his counsel's presence, there are no representations

[00:17:02] Speaker 00:
in the declaration that Mr. Singh had any trouble understanding what was being asked or providing the information that the investigators were seeking.

[00:17:12] Speaker 00:
Also to the point of Mr. Singh being tired following this interview and not providing a reason for the continuance, if you look at the continuance motion, that was not the reason why the petitioners council was seeking to indefinitely delay

[00:17:32] Speaker 00:
the merits hearing.

[00:17:34] Speaker 00:
Again, it was an indefinite delay, and he says in his declarations or in the motion that it's for the purpose of evaluating the treatment that Mr. Singh has been receiving.

[00:17:45] Speaker 00:
So it was very amorphous what he was asking for.

[00:17:49] Speaker 00:
He didn't specify another date on which to hold the hearing.

[00:17:53] Speaker 00:
It appeared that he wanted the hearing to veer into the conditions of his detention in order to potentially support a challenge to those conditions.

[00:18:02] Speaker 00:
which obviously is well outside the scope of the removal proceeding.

[00:18:07] Speaker 00:
And again, in the continuance motion, Mr. Singh's counsel stated that he was able to meet with his client every day since he was transferred to the general population, which would have been four days prior to the merits hearing.

[00:18:23] Speaker 00:
There is conclusive evidence that Mr. Singh was able to meet with his counsel

[00:18:28] Speaker 00:
during the period in which she was on a hunger strike in the weeks following when he ended the hunger strike.

[00:18:37] Speaker 00:
And so this notion that additional time was needed in order to do the bare minimum of consultation with counsel on the path of the merits hearing is not supported by the record.

[00:18:50] Speaker 00:
And so the IJ properly applied the presumption of competence.

[00:18:56] Speaker 00:
The IJ said that he reviewed the medical documentation that was submitted with the continuance motion.

[00:19:03] Speaker 00:
He correctly noted that the documentation dealt more with potential long-term effects of engaging in the hunger strike and that it was not relevant to the issue of competency or it didn't provide a reason to doubt that Mr. Singh was competent to proceed the April 5th hearing.

[00:19:31] Speaker 00:
So the IJ acted entirely consistent with the framework that the board provided in matter of MAM.

[00:19:38] Speaker 00:
And I believe Mr. Singh's counsel is raising for the first time a challenge to the board's interpretation of matter MAM, which is being raised for the first time at this hearing.

[00:19:54] Speaker 00:
And the court has affirmed that framework in precedential decisions a number of times.

[00:20:00] Speaker 00:
So that issue is not before the court.

[00:20:02] Speaker 00:
It's only the narrow issue.

[00:20:04] Speaker 00:
And of course, competence is a fact-bound determination.

[00:20:07] Speaker 00:
It's entitled to significant deference under the substantial evidence standard of review.

[00:20:14] Speaker 00:
And there is ample support in the record for DIJ's determination based on the medical evidence, as I discussed, and also the DIJ's colloquy with Mr. Singh.

[00:20:30] Speaker 01:
What medical evidence supports that?

[00:20:32] Speaker 01:
The doctors didn't, did they?

[00:20:36] Speaker 00:
I'm sorry.

[00:20:37] Speaker 01:
The doctors who had examined him and reported.

[00:20:40] Speaker 01:
Well, the medical evidence did not provide information that would compel reversal of the competency determination.

[00:20:48] Speaker 01:
I thought you were saying it supported the IJ.

[00:20:50] Speaker 01:
You're saying that it doesn't require reversal.

[00:20:53] Speaker 01:
Correct.

[00:20:55] Speaker 00:
Just to clarify.

[00:20:56] Speaker 00:
And there was a letter from an individual, Dr. Schaefer, who was able to conduct an in-person examination of Mr. Singh on, I believe it's March 27th.

[00:21:08] Speaker 00:
So while Mr. Singh was in the segregated health unit at the detention facility,

[00:21:20] Speaker 00:
physical examination.

[00:21:22] Speaker 00:
He does not mention any specific cognitive impairment that would prevent Mr. Singh from going forward with his hearing on April 5th, which had already been scheduled.

[00:21:36] Speaker 00:
And in fact, Mr. Singh's counsel had indicated, again, in his motion, in the continuance motion, that he was aware that the hearing had been scheduled as of March 1st.

[00:21:48] Speaker 01:
But the doctor mentions emotional health, severe depression, anxiety.

[00:21:53] Speaker 01:
Those are the sorts of things that might hinder a person in being able to communicate with counsel or assert a position, I think.

[00:22:03] Speaker 00:
Correct.

[00:22:03] Speaker 00:
And the question is whether those conditions would interfere with his ability to participate in the proceeding, consult with counsel, and just understand what was going on and present evidence on his own behalf.

[00:22:17] Speaker 00:
And so there's a representation that he suffered from mental health concerns that he presented symptoms of mental health issues.

[00:22:27] Speaker 00:
But he doesn't elaborate on that.

[00:22:30] Speaker 00:
He doesn't mention any sort of medication that Mr. Singh was taking at the time or any side effects that might interfere with his cognition.

[00:22:39] Speaker 01:
How did the IHA deal with those doctor reports?

[00:22:42] Speaker 00:
Well, the IHA

[00:22:44] Speaker 00:
stated on the record that he reviewed the medical evidence.

[00:22:49] Speaker 00:
And again, he said that it spoke mainly to potential long-term effects on Mr. Singh's health as a result of the prolonged period of fasting.

[00:23:01] Speaker 00:
So under the circumstances, the IJ did not have to go into any more detail.

[00:23:08] Speaker 00:
It's not necessary for the IJ to engage with every specific

[00:23:15] Speaker 00:
representation that's made by the doctors.

[00:23:18] Speaker 00:
And there was a lot that was said in Dr. Schaeffer's letter about the results of the physical examination.

[00:23:25] Speaker 00:
And the judge doesn't have to go through that with a fine-tooth comb.

[00:23:29] Speaker 00:
Again, this is subject to the substantial evidence standard of review.

[00:23:33] Speaker 00:
And it's incumbent on Mr. Singh at this stage of the proceedings to point to evidence that would compel reversal of the IJ's finding that there was no indicia of incompetence

[00:23:44] Speaker 02:
You say Mr. Singh has a burden at this stage of the proceedings.

[00:23:49] Speaker 02:
Did Mr. Singh or his attorney have any burden to present evidence at the hearing where competency was raised as an issue?

[00:23:59] Speaker 02:
Did they have any burden to provide additional information about recent problems with Mr. Singh?

[00:24:07] Speaker 00:
Correct.

[00:24:09] Speaker 02:
I asked a question.

[00:24:10] Speaker 02:
I wasn't saying.

[00:24:11] Speaker 02:
I'm asking if they have any burden.

[00:24:13] Speaker 00:
Yes, so MAM recognizes this presumption of competency.

[00:24:19] Speaker 00:
So if a non-citizen would like to challenge that presumption, then they do have to come forward with some evidence, where there has to be some evidence from the individual's demeanor.

[00:24:37] Speaker 00:
And again, this is a fact-bound determination.

[00:24:41] Speaker 00:
and EIJ engaged in a colloquy with Mr. Singh.

[00:24:45] Speaker 00:
Mr. Singh affirmed that he was aware of the contents of his application, that it was true and correct.

[00:24:53] Speaker 00:
Again, an amended application was submitted by his counsel at the outset of the hearing, which substantiates Mr. Singh's awareness of what the application contained.

[00:25:07] Speaker 00:
But after this colloquy, Mr. Singh

[00:25:11] Speaker 00:
chose not to finalize the application.

[00:25:13] Speaker 02:
With respect to the presumption, you said in response to the presumption, the petitioner must come forward with evidence.

[00:25:22] Speaker 02:
Once the petitioner comes forward with enough evidence, does the burden shift to the government to establish incompetency, or is it still with the petitioner to establish incompetency?

[00:25:37] Speaker 00:
Well, just to correct what I was saying, it wouldn't necessarily be the petitioner affirmatively presenting evidence of incompetency.

[00:25:45] Speaker 00:
This could be apparent to E.I.J.

[00:25:48] Speaker 00:
E.I.J.

[00:25:48] Speaker 00:
for himself could recognize.

[00:25:51] Speaker 00:
Who ultimately has the burden?

[00:25:54] Speaker 00:
Again, given that there is a presumption in place, there needs to be something that

[00:26:02] Speaker 00:
is evident from the record, and typically it would be something that's presented either by the petitioner's counsel or... Well, some presumptions.

[00:26:12] Speaker 02:
You've heard of the bursting bubble concept for presumptions.

[00:26:17] Speaker 02:
Once the person who's challenging the presumption has put forward enough evidence, then

[00:26:27] Speaker 02:
The presumption disappears and the burden of persuasion shifts to the other side.

[00:26:32] Speaker 02:
That can happen.

[00:26:34] Speaker 02:
I'm asking you, what happens here?

[00:26:37] Speaker 00:
Well, I think the admin framework does not speak to this sort of burden shifting analysis.

[00:26:43] Speaker 00:
It places the discretion in the hands of the IJ to make an informed decision based on what

[00:26:50] Speaker 00:
is before the IJ and what transpires at the hearing.

[00:26:53] Speaker 00:
And the IJ has a continuing obligation to assess competency.

[00:26:57] Speaker 00:
This is not a one-time determination at the beginning of the hearing.

[00:27:01] Speaker 00:
And it's purely hypothetical in this case that if Mr. Singh chose to finalize his application, if the case moved forward, perhaps he would have presented some initial of incompetency that the judge would

[00:27:18] Speaker 00:
react to and would proceed under the MAM framework.

[00:27:24] Speaker 00:
But that's not what happened here.

[00:27:26] Speaker 00:
Mr. Singh abandoned his application for reasons that are unclear, and the IJ at that point had no choice but to find that the application had been abandoned and to order his removal.

[00:27:41] Speaker 00:
Thank you.

[00:27:46] Speaker 02:
Mr. Spurgeon, you have a... Yes.

[00:27:52] Speaker 03:
Your Honor, I was incorrect about his pro bono warrior being present at that two and a half hour interview.

[00:28:00] Speaker 03:
I want to clear that up.

[00:28:02] Speaker 03:
I misunderstood.

[00:28:02] Speaker 03:
I misspoke with respect to that.

[00:28:06] Speaker 03:
The warrior was present.

[00:28:08] Speaker 03:
I don't know the lawyer.

[00:28:09] Speaker 03:
And he wasn't a retained lawyer.

[00:28:10] Speaker 03:
He was a pro bono warrior.

[00:28:11] Speaker 03:
That doesn't matter.

[00:28:15] Speaker 03:
Mr. Singh was given a hostage choice.

[00:28:19] Speaker 03:
Go forward with the most important matter probably you've ever had in your life to try to prevent your deportation to a country where they want to persecute you based upon your political and religious beliefs, or not to sign the asylum application because you're not capable of having the case detected.

[00:28:45] Speaker 03:
The immigration judge is in the record, even after he had deemed the application abandoned, took the time to drag up everything he could to show that he would have denied it anyway.

[00:28:59] Speaker 03:
All right?

[00:29:00] Speaker 03:
The Board of Immigration Appeals didn't address that part.

[00:29:02] Speaker 03:
They said, we're not going to go there.

[00:29:04] Speaker 03:
We're just going to rely upon the other portion.

[00:29:07] Speaker 03:
Am I up?

[00:29:08] Speaker 03:
Your time's up.

[00:29:10] Speaker ?:
Thank you very much.

[00:29:11] Speaker 02:
Thank you.

[00:29:15] Speaker 04:
I'm good.

[00:29:19] Speaker 02:
Thank you.

[00:29:20] Speaker 02:
Case is submitted.

[00:29:21] Speaker 02:
Council are excused.