                                                            NOT PRECEDENTIAL

                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT
                               ____________

                                   No. 13-4502
                                  ____________

                              GREGORY BARKER,
                                          Petitioner

                                         v.

               ATTORNEY GENERAL OF THE UNITED STATES,
                                       Respondent
                            ____________

                          On Petition for Review from an
                     Order of the Board of Immigration Appeals
                            (Board No. A037-136-805)
                         Immigration Judge: Leo Finston
                                   ____________

                           Argued January 21, 2015
         Before: FISHER, JORDAN and GREENAWAY, Jr., Circuit Judges.

                               (Filed: July 10, 2015)

Bennett E. Cooper, Esq.
Shannon E. Trebbe, Esq. (ARGUED)
Steptoe & Johnson
201 East Washington Street
Suite 1600
Phoenix, AZ 85004,
             Counsel for Petitioner
Laura Halliday Hickein, Esq. (ARGUED)
Thomas W. Hussey, Esq.
Justin R. Markel, Esq.
United States Department of Justice
Office of Immigration Litigation, Civil Division
P.O. Box 878
Ben Franklin Station
Washington, DC 20044,
                    Counsel for Respondent
                                     ____________

                                         OPINION*
                                       ____________

FISHER, Circuit Judge.

       Gregory Barker challenges the decision of the Board of Immigration Appeals

(“BIA”) dismissing his appeal of an Immigration Judge’s (“IJ”) removal order. Barker

argues that his due process rights were violated because he was incompetent to represent

himself in his removal proceedings. We will deny the petition for review.1

                                              I.

       We write principally for the parties, who are familiar with the factual context and

legal history of this case. Therefore, we will set forth only those facts that are necessary

to our analysis.




       *
        This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
does not constitute binding precedent.
      1
        The Court acknowledges the excellent advocacy of pro bono counsel, Bennett
Evan Cooper and Shannon E. Trebbe of Steptoe & Johnson LLP, on behalf of Mr.
Barker.

                                              2
       A native of Guyana, Barker immigrated to the United States when he was four

years old. He was admitted as a lawful permanent resident and has lived here for the past

thirty-four years. During that time, Barker had several encounters with the criminal

justice system, most notably in 1998 when he pled guilty to possession of cocaine with

intent to distribute in New Jersey.

       In January 2012, the Department of Homeland Security issued a notice to appear

charging Barker with removability based on his 1998 conviction. On March 12, 2012,

Barker appeared before the IJ, who explained the charges in the notice to appear and

informed Barker of his rights, including his right to counsel at no cost to the government.

Barker told the IJ he would like time to find an attorney, and the IJ granted a continuance.

       On March 28, 2012, Barker appeared before the IJ, this time represented by

counsel. Barker’s counsel moved for a continuance to familiarize himself with the case

and the IJ granted the motion. At the next hearing on April 19, 2012, Barker’s counsel

conceded that Barker was removable based on the 1998 conviction and that Barker had

no other available relief, but counsel sought a continuance to allow Barker to pursue post-

conviction relief to vacate the 1998 conviction. The IJ granted that continuance too, and

did so again for the same reasons on June 4 and July 10.

       On August 16, 2012, Barker’s counsel moved to terminate his representation,

citing an irreconcilable breakdown of the attorney-client relationship; Barker agreed to

the motion. The IJ continued the proceedings to give Barker an opportunity to retain a

new attorney. At the next hearing on September 19, however, Barker had yet to obtain


                                             3
new representation. He told the IJ he was waiting to hear back from attorneys whom he

had just contacted. Although Barker was still unrepresented, the IJ decided he needed to

make some progress on Barker’s case, and in response to questioning, Barker admitted to

the allegations in his notice to appear and conceded his removability. The IJ then

continued the proceedings to give Barker more time to find an attorney.

       Over the next eight months, Barker appeared several more times before the IJ,

each time without counsel. During this time, Barker completed an application for asylum

and updated the IJ on his post-conviction relief proceedings. On one occasion, Barker

told the IJ, “I honestly don’t wish to represent myself.” J.A. 145.

       At a hearing on May 7, 2013, Barker informed the IJ that his post-conviction relief

was denied, purportedly because “they didn’t know where [he] was” and “the law didn’t

apply” when he pled guilty in 1998. J.A. 164.2 Although Barker reiterated his desire not

to represent himself, the IJ decided that the proceedings should move forward with

Barker representing himself based on the number of continuances already granted and the

lack of any reasonable expectation Barker would obtain an attorney after failing to do so

up to that point. Barker provided the IJ with basic information about his background.

During his colloquy with the IJ, Barker struggled momentarily to remember the name of

his most recent employer, but he soon remembered it, explaining that he was “quite

nervous.” J.A. 169–70. Barker also told the IJ he did not know of anyone in his family


       2
        In fact, Barker’s application for post-conviction relief was denied because it was
untimely and failed to establish an ineffective assistance of counsel claim.

                                             4
who had been harmed in Guyana or of any activities he had engaged in that might cause

problems for him in Guyana. The IJ asked Barker if he was on any medications, and

Barker said he was not “[a]s of late.” J.A. 177.

       At the end of the hearing, the IJ asked Barker if he had anything he wished to add

before a final decision was rendered. Barker claimed he did not know this hearing would

be the last one, and he said that he would have called his family to testify on his behalf

had he known. The IJ rejected the request for an additional continuance, found Barker

removable, and denied his requests for withholding of removal, asylum, and protection

under the Convention Against Torture.

       Barker appealed the IJ’s decision to the BIA, raising for the first time the issue of

his mental competency. Barker argued that he was mentally incompetent and could not

represent himself in his removal proceedings. The BIA rejected Barker’s incompetency

argument as well as his other arguments and denied his appeal. Barker timely petitioned

for review.

                                             II.

       The IJ had jurisdiction under 8 U.S.C. § 1229a. The BIA had jurisdiction to review

the IJ’s order of removal under 8 U.S.C. § 1103(g)(2) and 8 C.F.R. §§ 1003.1(b)(3) and

1240.15. We have jurisdiction to review constitutional claims and questions of law in the

BIA’s decision under 8 U.S.C. § 1252(a)(2)(D). We review the BIA’s determination of a

due process claim de novo. Fadiga v. Att’y Gen., 488 F.3d 142, 153 (3d Cir. 2007).




                                              5
                                             III.

       No one disputes that Barker is entitled to due process in his removal proceedings.

Due process in this context guarantees aliens “the right to a full and fair hearing that

allows them a reasonable opportunity to present evidence on their behalf.” Cabrera-Perez

v. Gonzales, 456 F.3d 109, 115 (3d Cir. 2006) (per curiam). Barker bears the burden of

showing that his due process rights were violated, Khan v. Att’y Gen., 448 F.3d 226, 236

(3d Cir. 2006), which, as explained below, he has failed to do.

       Barker’s principal argument is that due process requires immigration judges to ask

a series of questions of every unrepresented alien in removal proceedings to assess the

alien’s competency.3 Relying on the balancing test outlined in Mathews v. Eldridge, 424

U.S. 319, 335 (1976), Barker argues that due process requires immigration judges to ask

these questions because an alien’s individual interest in providing a defense to removal is

substantial, the risk of not identifying incompetent aliens is great unless these questions

are asked, and the burden on the Government to ask the questions is minimal.

       The BIA’s current framework presumes an alien is competent unless the alien

exhibits indicia of incompetency. Matter of M-A-M-, 25 I & N Dec. 474, 477 (BIA 2011).


       3
         The questions are: “[1] Whether the alien is currently suffering or has recently
suffered from a medical problem; [2] Whether the alien is on any medication or mind-
altering substance; [3] Whether the alien is currently suffering or has suffered in the past
from a mental illness or disability; [4] Whether the alien can state in his or her own words
the purpose of the proceedings; [5] Whether the alien feels that he or she cannot provide
his or her own defense, and why the alien feels that way; [and 6] What evidence the alien
intends to provide in his or her own defense, including which witnesses will be called
during the proceedings.” Barker’s Br. 15.

                                              6
Borrowing from the competency standard in criminal cases, the BIA’s test for

competency is “whether [the alien] has a rational and factual understanding of the nature

and object of the proceedings, can consult with the attorney or representative if there is

one, and has a reasonable opportunity to examine and present evidence and cross-

examine witnesses.” Id. at 479. Indicia of incompetency will always be case-specific, but

generally include issues with the alien’s behavior during proceedings, e.g., an inability to

respond to questions, or with the alien’s medical history. Id. at 479–80.

       In considering whether more is constitutionally required, we start by recognizing

that aliens in removal proceedings are not entitled to the full panoply of constitutional

protections afforded to criminal defendants. I.N.S. v. Lopez-Mendoza, 468 U.S. 1032,

1038 (1984). One of the key differences is that incompetent persons may not be tried in a

criminal prosecution, Cooper v. Oklahoma, 517 U.S. 348, 354 (1996), but they may be

subject to removal proceedings, Brue v. Gonzales, 464 F.3d 1227, 1233 (10th Cir. 2006).

Yet despite the Constitution’s prohibition of criminal trials of incompetent defendants,

criminal defendants are not constitutionally entitled to sua sponte questioning by a judge

to ascertain their mental competency in every case. Rather, a competency hearing is only

required when there is sufficient reason to doubt a criminal defendant’s mental

competency, see Drope v. Missouri, 420 U.S. 162, 180 (1975) (discussing factors that

could trigger the need for “further inquiry”), and it is constitutional to presume a criminal

defendant is competent and to place the burden of proof on him to prove incompetency

by a preponderance of the evidence, see Cooper, 517 U.S. at 355.


                                              7
       Therefore, Barker’s argument before us—that unrepresented aliens in removal

proceedings are always entitled to sua sponte questioning to ascertain their mental

competency—effectively asks us to hold that the Constitution requires more protections

for aliens in removal proceedings than it does for defendants in criminal prosecutions.

We cannot do so. There is nothing fundamentally unfair about a framework that presumes

aliens are competent and requires immigration judges to address the alien’s competency

only when there are indicia of incompetency. This framework satisfies the minimal

constitutional protections afforded to aliens in removal proceedings.

       Applying the Mathews balancing test reinforces our conclusion. While we

recognize an alien’s strong individual interest to remain in this country, we also recognize

the Government’s strong interest in efficient administration of immigration laws. We

think competency in this context is fairly assessed through observation of an alien’s

conduct in removal proceedings as well as consideration of any other evidence bearing on

competency. Requiring immigration judges to ask the questions Barker proposes in every

proceeding with an unrepresented alien is unlikely to identify many more incompetent

individuals than the current framework does and will cause delays in removal

proceedings.

       Finally, we have reviewed the record in this case and have not found any indicia of

incompetency that should have triggered greater scrutiny of Barker’s competency from

the IJ. At most, Barker has identified examples of his lack of familiarity with removal

proceedings and isolated instances of poor memory. Nor has Barker identified anything


                                             8
in his personal background that suggests he lacked mental competency. Indeed, the

record shows Barker participated in his own removal proceedings, answered questions

asked of him, pursued post-conviction relief in his related criminal proceeding, and

submitted an application for asylum.

      Accordingly, we conclude that Barker’s due process rights were not violated.

                                           IV.

      For the foregoing reasons, we will deny the petition for review.




                                            9
