                                PUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                               No. 14-2115


MADIAGNE DIOP,

                 Petitioner,

           v.

LORETTA E. LYNCH, Attorney General,

                 Respondent.



On Petition for Review of an Order of the Board of Immigration
Appeals.


Argued:   October 28, 2015                  Decided:   December 2, 2015


Before WILKINSON, KEENAN, and THACKER, Circuit Judges.


Petition for review denied by published opinion.       Judge
Wilkinson wrote the opinion, in which Judge Keenan and Judge
Thacker joined.


ARGUED: Luis Carlos Diaz, LAW OFFICES OF JAY S. MARKS, LLC,
Silver Spring, Maryland, for Petitioner.     Aaron David Nelson,
UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for
Respondent.    ON BRIEF: Benjamin C. Mizer, Principal Deputy
Assistant Attorney General, Civil Division, Greg D. Mack, Senior
Litigation Counsel, Office of Immigration Litigation, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.
WILKINSON, Circuit Judge:

       Petitioner Madiagne Diop challenges here the decision by

the immigration judge and Board of Immigration Appeals to deny

him    a    continuance         or    administrative               closure    of    his       removal

proceedings         so    he   could       receive       a    mental      health        evaluation.

Because      the     immigration           judge       did    not     err    procedurally           or

substantively in assessing Diop’s mental competency, we deny the

petition for review.

                                                  I.

                                                  A.

       Diop is a native of Senegal. He was admitted to the United

States as a temporary visitor under a B-2 visa on October 15,

1997       and    granted       entry      only        until       April     14,        1998.      Diop

overstayed        his     six-month        visa    and       has    resided    in       the     United

States without legal immigration status for the past seventeen

years.      On     January      14,    2012,       Diop       was    arrested       following        a

psychotic        episode       at    his   workplace,          a    Bed    Bath     &    Beyond      in

Rockville, Maryland. He was indicted on eleven counts, including

assault,         sexual    assault,        and     resisting         arrest.       Based      on    his

behavior at the time of arrest, Diop was transferred from police

custody to a hospital for a psychological evaluation. He was

diagnosed with psychosis and prescribed antipsychotic medication

before returning to police custody.



                                                   2
      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

violation of the Immigration and Nationality Act.

                                             B.

      During   his     removal      proceedings,          Diop    appeared    before    an

immigration judge (IJ) in Baltimore, Maryland a total of five

times between November 2012 and May 2013. At the November 28,

2012 hearing, the IJ indicated that the court would evaluate

Diop’s   mental   competency          when    it    reconvened      on    December     13,

2012. The IJ questioned Diop at that hearing, leading to the

following dialogue:

      IJ: And, Mr. Diop, I would like to just ask you a few
      questions. Your attorney said that she was about to
      communicate with you. Did you feel like you were able to
      have a meaningful conversation with her?
      Diop: I spoke to her on the phone.
      IJ: You did talk to her on the phone? Okay. All right, and
      are you having any trouble understanding me today?
      Diop: [Indiscernible]
      IJ: Okay.        Do     you   have      any    history       of    mental   health
      problems?
      Diop: No.



                                             3
     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 you’ve been brought to be?
     Diop: Excuse me?
     IJ: What do you understand the purpose of these hearings?
     Diop: It’s 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 it’s hard. Where I’m 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     counsel’s

representations, and the record as a whole, the IJ found Diop

competent to participate in removal proceedings. At the next

hearing     on     February    7,     2013,     Diop     admitted     all    factual

allegations       against   him     and    conceded    that   he    was   removable.

Diop’s counsel requested another continuance so that she could

ask for prosecutorial discretion. When asked whether Diop would

seek other forms of relief, counsel responded, “at this time . .

. all I’m seeing immediately is that he might be eligible for a



                                            4
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

administratively closed or continued the case in order to allow

Diop to receive a psychological evaluation. To contest the IJ’s

finding of competency, Diop put forth mental health records from

immediately    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,      a     claim    for

withholding of removal on account of his mental incompetency.

       The BIA found no clear error in the IJ’s determination that

Diop    was   competent      to    proceed.      The    Board    noted      that    Diop

testified to no prior history of mental health problems and had

demonstrated his ability to communicate with counsel. The BIA

discounted the assessment taken directly after Diop’s psychotic

                                           5
episode   as   merely    a     reflection      of    his    mental   state    at    that

moment and relied instead on his more recent favorable mental

health records. Diop’s withholding claim was rejected because he

had failed to raise it before the IJ. The BIA affirmed the order

of removal, and this petition for review followed.

                                         II.

                                         A.

     Petitioner challenges his removal order on a single basis:

that the IJ should have continued or administratively closed the

removal proceedings to allow Diop to receive a mental health

evaluation. He claims that the IJ’s refusal to do so violated

due process. Respondents in removal proceedings are entitled to

procedural     due    process.    Reno     v.   Flores,       507    U.S.    292,   306

(1993). To establish a due process violation, the respondent

must prove both “that the defect in the proceeding rendered it

fundamentally        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 IJ’s factual finding of competency is

reviewed under the substantial evidence standard and treated as

conclusive     unless    the    evidence      presented       “was   such    that    any

                                          6
reasonable adjudicator would have been compelled to conclude to

the contrary.” Haoua v. Gonzalez, 472 F.3d 227, 231 (4th Cir.

2007).

      The   BIA    established         in     Matter     of    M-A-M       the       process    for

addressing mental competency in removal proceedings. 25 I&N Dec.

474 (BIA 2011). Inherent in this process is a high degree of

flexibility and discretion for the fact-finder to tailor his

approach    to    the     case   at     hand.         First,   the    IJ     starts        with    a

presumption of competence. Id. at 477 (citations omitted). If he

finds no indicia of incompetency, the inquiry is at an end. Id.

(citations omitted). The test for competency utilized by the BIA

has three components: whether the respondent (1) “has a rational

and   factual      understanding            of   the     nature      and    object         of   the

proceedings,”        (2)        “can        consult       with       the         attorney         or

representative       if    there       is    one,”      and    (3)    “has       a    reasonable

opportunity to examine and present evidence and cross-examine

witnesses.” Id. at 479. In applying this test, the IJ may draw

on a “wide variety of observations and evidence,” including his

perception of the respondent’s behavior and medical records or

psychological assessments. Id.

      Where      there    are    indicia         of    incompetency,         the      IJ   should

“take measures to determine whether a respondent is competent to

participate in proceedings.” Id. at 480. Here, the Board notes,

“the approach taken in any particular case will vary based on

                                                 7
the   circumstances.”          Id.    The       Board    offers     some      examples    of

measures the IJ could take, such as questioning the respondent

about his state of mind and medical history or, if the matter

remains in doubt, requesting a mental health evaluation. Id. at

480-81. In a recent decision, the BIA further clarified that

neither party bears the burden of proof at this stage; rather,

the   IJ    should      determine     by    a       preponderance      of    the    evidence

whether the respondent is competent. Matter of J-S-S, 26 I&N

Dec. 679, 683 (BIA 2015); M-A-M, 25 I&N Dec. at 481.

                                            B.

      The upshot of the foregoing discussion should be clear. The

BIA does not tie the fact-finder to a list where one unchecked

item could invalidate an otherwise fair removal proceeding. The

Board has avoided requiring IJ’s to ask any particular question,

request     any     particular       evaluation,         or    adopt    any     particular

safeguard.        It    opts   instead          for     an    adaptable       case-by-case

approach. By contrast, petitioner here is bent on contorting

every “may” into “must,” every issue of fact into a question of

law, every illustrative guide into a binding directive.

      Petitioner’s position ignores the Supreme Court’s language:

competency “depends heavily on the trial court’s appraisal of

witness credibility and demeanor.” Thompson, 516 U.S. at 111. In

other      words,      competency     is        an    issue    that     highlights       the

institutional          constraints    on    appellate         courts:       “Face   to   face

                                                8
with living witnesses the original trier of the facts holds a

position of advantage from which appellate judges are excluded.”

Maggio v. Fulfold, 462 U.S. 111, 118 (1983) (citation omitted).

In   removal        proceedings     specifically,      competency     turns   on   a

credibility determination: the IJ must decide whether someone is

honestly failing to understand the proceedings or is instead

putting on an act. E.g., Munoz-Monsalve v. Mukasey, 551 F.3d 1,

7 (1st Cir. 2008) (noting that “stumbl[es]” and “glitches” in

respondent’s exchange with the IJ “are more consistent with a

prevaricating petitioner than with a mentally incompetent one”).

Drawing that distinction requires the IJ to scrutinize facial

expressions, eye contact, tone of voice, body language -- all

those      little    details      that   a   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    one     hand,   for   someone    navigating    an    unfamiliar   legal

system      while     facing      the    daunting    prospect    of   deportation,

procedural due process is a much-needed protection. See Rusu v.

United States Immigration & Naturalization Serv., 296 F.3d 316,

320-22 (4th Cir. 2002). To order the removal of someone unable

to participate meaningfully in his or her removal proceedings




                                             9
would make the whole process a charade. 1 On the other hand,

requests for continuances and medical evaluations can quickly

become a strategy of delay, delay, and more delay. Diop, for

instance, appeared in front of the IJ five separate times and

seized upon every conceivable basis to postpone his case. To

string out the proceedings on flimsy grounds risks prolonging

the stay of those who have no lawful basis for remaining in this

country.

                                       C.

      There is no question that the IJ in this case struck the

right balance by refusing Diop’s request for a separate mental

health evaluation. Petitioner’s due process argument falters at

the   initial     stage    of    the   M-A-M    analysis:     there   were    no

sufficient indicia of Diop’s incompetency. “Mental competency is

not a static condition”; what matters is respondent’s mental

state at the time of the removal proceedings. M-A-M, 25 I&N Dec.

474   at   480.   The     only   evidence      that   even   comes    close   to

suggesting      incompetency      is    the     above-noted     psychological


      1In the removal context, for example, courts have required
safeguards   to   ensure   meaningful  participation   if   such
participation is in doubt. M-A-M, 25 I&N Dec. 474 at 481-83
(summarizing cases); accord 8 U.S.C. § 1229a(b)(3). Appropriate
safeguards include having the IJ actively aid in developing the
record or allowing a family member or guardian to assist the
respondent. Id. at 483. Because Diop was properly deemed
competent, however, the question of appropriate safeguards is
not one we need address.


                                       10
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

Diop’s 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

concerns” whatsoever, and recommended no further treatment or

medication. J.A. 171-72. By Diop’s own evidence then, he was

competent by the time he appeared before the IJ. Petitioner is

thus caught in a trap of his own design: he claimed a stable

condition before the IJ to stall for more time and incompetency

before   the   BIA   to   secure    reversal   of   his   removal    order.   We



                                       11
cannot credit a strategy that uses competency as a delay tactic

rather than a genuine defense.

       Erring      on   the    side        of   caution,      the    IJ    nonetheless       took

appropriate measures to assess Diop’s competency by holding a

separate      hearing     and       inquiring          specifically        about    his   mental

health and ability to communicate with counsel. Her exchange

with   Diop       provided     ample        basis      for   a    finding    of     competency.

Petitioner voiced no psychological concerns, understood that the

proceedings related to his immigration status, and raised only

one objection, which focused on the cost of making phone calls

to his attorney.

       The    Supreme     Court       has       cautioned        against    flyspecking       the

IJ’s questions or quibbling with the quality of respondent’s

answers. In determining competency, fact-finders cannot look to

“fixed or immutable signs which invariably indicate the need for

further inquiry”; instead they have to rely on a “wide range of

manifestations and subtle nuances.” Drope v. Missouri, 420 U.S.

162,   180     (1975).        The     IJ    did     what     she    deemed       necessary     to

ascertain Diop’s competency in full compliance with M-A-M. This

was    not    a    case       where    the        IJ    sacrificed         due     process    for

expediency. Far from it. Diop received one continuance after

another -- to prepare his case, to consult with counsel, to

request prosecutorial discretion, to receive a hearing on his

mental competency. There being no defect in these proceedings,

                                                  12
we need not reach the question of prejudice. 2 The petition for

review is hereby denied.

                                      PETITION FOR REVIEW DENIED




    2   We also decline to consider petitioner’s argument
regarding withholding of removal. The BIA found that Diop failed
to raise his withholding claim before the IJ and failed to
submit the relevant application for relief or show prima facie
eligibility for relief in his appeal to the BIA. The Board did
not err in refusing to remand the case to permit him to apply
for withholding.


                               13
