U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals
Office ofthe Clerk
5107 leesburg Pike, Suire 2000
Falls Church, Virginia 22041

DHS/ICE Office of Chief Counsel - BOS

P.O. Box 8728
Boston, MA 02114

Name: WALLACE, NICKOYAN NKRUMAH

A 041-654-413
Date of this notice: 2/26/2016

Enclosed is a copy of the Board's decision and order in the above-referenced case.

DonnL ca.AA)
Sincerely,

Donna Carr
Chief Clerk
Enclosure
Panel Members:
Greer. Anne J.

Use rteam: Docket

For more unpublished BIA decisions, visit

www.irac.net/unpublished/index/
Cite as: Nickoyan Nkrumah Wallace, A041 654 413 (BIA Feb. 26, 2016)

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WALLACE, NICKOYAN NKRUMAH

A041-654-413
SUFFOLK CTY HOC
20 BRADSTON ST
BOSTON, MA 02118

U.S. Department of Justice

Executive Office for Immigration Review

Decision of the Board of Immigration Appeals

Falls Church, Virginia 22041

File: A041 654 413 - Boston, MA

Date:

FEB 2 S 2D15

In re: NICKOYAN NKRUMAH WALLACE a.k.a. Nickonan Wallace

APPEAL
ON BEHALF OF RESPONDENT: Pro se
CHARGE:
Notice: Sec.

237(a)(2)(A)(iii), l&N Act [8 U.S.C. 1227(a)(2)(A)(iii)] Convicted of aggravated felony under section 101(a)(43)(F) of the Act

Sec.

237(a)(2)(A)(iii), I&N Act [8 U.S.C. 1227(a)(2)(A)(iii)] Convicted of aggravated felony under section 10l(a)(43)(G) of the Act

Sec.

237(a)(2)(C), l&N Act [8 U.S.C. 1227(a)(2)(C)] Convicted of firearms or destructive device violation

APPLICATION: Remand
The respondent, a native and citizen of Jamaica, has appealed from the Immigration Judge's
November 19, 2015, decision ordering him removed. The Department of Homeland Security has
not responded to the appeal. 1 The record will be remanded for further proceedings.
We review the findings of fact, including the determination of credibility, made by the
Immigration Judge under a "clearly erroneous" standard. 8 C.F.R. 1003.l(d)(3)(i). We review
all other issues, including issues of law, judgment, and discretion de novo. 8 C.F.R.
1003. l(d)(3)(ii).
As an initial matter, we find that this appeal is properly before us. It is unclear from the
record whether the Immigration Judge alerted the respondent to the fact that his acceptance of
the Immigration Judge's decision to order him removed constituted a waiver of his right to
appeal (see Tr. at 26). As a result, we conclude that there was no effective waiver of appeal in
this case to preclude us from assuming jurisdiction in this matter. See Matter ofRodriguez-Diaz,
22 I&N Dec. 1320, 1323 (BIA 2000) (holding that where it is not evident from the record that a
pro se alien understood the implications of accepting the Immigration Judge's decision as
"final," an effective waiver of appeal did not occur and an appeal is properly before the Board).

The respondent's request for a fee waiver is granted. See 8 C.F.R. 1003.8(a)(3).
Cite as: Nickoyan Nkrumah Wallace, A041 654 413 (BIA Feb. 26, 2016)

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IN REMOVAL PROCEEDINGS

A041 654 413

In his decision, the Immigration Judge made the following findings:

[T] he respondent knows what these proceedings are about. He's an articulate
fellow and has asked some piercing albeit irrelevant questions about the
jurisdiction of this court. There is no question that the respondent knows what is
going on and is choosing to be an obstructionist and not fill out his application for
Convention Against Torture relief which is the only form of relief available to
him.
(I.J. at 3). However, this overlooks, and does not account for, record evidence (1.J. at 3; Tr. at 7,
10-11, 21-26). Nor does it follow the framework for evaluating an alien's competency we set
forth in Matter ofM-A-M-, supra.
The respondent stated during proceedings that he was "confused," he repeatedly asked the
Immigration Judge to explain the ''nature and call" of his removal proceedings (Tr. at 7, 10-11,
21), and he continued to ask this question after the Immigration Judge provided an explanation
(Tr. at 10-11, 21). Several of the respondent's answers during questioning were nonsensical and
were not responsive to the question asked. For instance, after the Immigration Judge inquired
whether the respondent wished to be removed from the United States, the respondent asked: "Could
you define for me the registered voters of the United States?" (Tr. at 24). The respondent then
asserted that, in accordance with the United States Constitution, ''the United States is located within
10 mile square [sic] of the district called Washington D.C. or the District of Columbia" (Tr. at 2425).
Additionally, when asked whether he conceded removability and wished to apply for
protection under the Convention Against Torture, the respondent stated: "I'm not applying for
that. I'm going to accept these charges for value and return them for discharge, your honor,
respectfully" (I.J. at 3; Tr. at 23). After the Immigration Judge asked the respondent to explain
what he meant by this statement, the respondent repeated himself and finally said: "Pve given
this court my position. I'm accepting your charges, your offers for value and I'm returning them for
discharge" (1.J. at 3; Tr. at 25). The Immigration Judge characterized this response as a "meaningless
statement" (I.J. at 3).
2
Cite as: Nickoyan Nkrumah Wallace, A041 654 413 (BIA Feb. 26, 2016)

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It is additionally ooclear from the record whether the Immigration Judge evaluated the
respondent's competency to participate in removal proceedings pursuant to the framework set
forth under Matter of M-A-M-, 25 I&N Dec. 474, 477, 480-81 (BIA 2011). Although aliens in
immigration proceedings are presumed to be competent, when indicia of incompetency are
present, an Immigration Judge must make a competency determination. Id. An alien is
competent for purposes of immigration proceedings if he or she has a rational and factual
understanding of the nature and object of the removal proceedings, can consult with an attorney
or representative if there is one, and has a reasonable opportunity to examine and present
evidence and cross-examine witnesses. Id at 479. Unlike criminal proceedings, removal
proceedings can continue despite a respondent's lack of competency, so long as safeguards are in
place to ensure that the respondent's rights and privileges under the Act are protected. See
sections 240(b)(3), (4) of the Immigration and Nationality Act, 8 U.S.C. 1229a(b)(3), (4);
Matter ofM-A-M-, supra, at 479.

A041654413

As a consequence, we will remand this matter for the Immigration Judge to make the appropriate
inquiries as to the respondent's competency to participate in removal proceedings, and to allow for
the submission of additional evidence regarding the respondent's competency. See Matter of
M-A-M-, supra, at 480-81 (listing the type of evidence that should be considered in measuring an
alien's competency); see also Matter of J-S-S-, 26 l&N Dec. 679, 683 (BIA 2015) (concluding that
neither party bears a formal burden of proof in immigration proceedings to establish whether or not
the respondent is mentally competent, but where indicia of incompetency are identified, the
Immigration Judge should determine if a preponderance of the evidence establishes that the
respondent is competent).
After the Immigration Judge has made these inquiries and evaluated the additional evidence
submitted, the Immigration Judge should make clear findings of fact regarding the respondent's
competency. See Matter ofJ-S-S-, supra, 684 ("A finding of competency is a finding of fact that the
Board reviews to determine if it is clearly erroneous."). In the event the respondent is deemed
incompetent to participate in removal proceedings, the Immigration Judge should determine whether
appropriate safeguards can be put in place to ensure that the respondent's rights and privileges under
section 240(b) of the Act are protected and hold a new hearing. Id. at-479. Accordingly, the
following order will be entered.
ORDER: The record is remanded for further proceedings and the entry of a new decision
consistent with the foregoing opinion.

\-

FORTHEARD

3
Cite as: Nickoyan Nkrumah Wallace, A041 654 413 (BIA Feb. 26, 2016)

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The respondent's statements during proceedings contained indicia of incompetency, but the
Immigration Judge did not make a full inquiry into the respondent's competency to participate in
removal proceedings as required under Matter of M-A-M-, supra, at 480-81. Although the
Immigration Judge determined that the respondent was malingering (I.J. a 3), he cites no evidence in
support of this finding. On appeal, the respondent has submitted documents that he apparently
intended to file with the Immigration Court during proceedings. In addition to his statements during
removal proceedings, the contents of these documents also present indicia of incompetency insofar as
they reflect that the respondent may not understand the nature and object of his removal proceedings
or be able to provide relevant evidence or arguments on his own behalf. See Matter of M-A-M-,
supra, at 477. Absent additional fact-finding regarding the respondent's competency, we are unable
to affirm the Immigration Judge's conclusion that the respondent was malingering and that he
understood the nature and object of his removal proceedings (I.J. at 3).

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
BOSTON,MASSACHUSETTS

In the Matter of
)
)
)
)

NICKOYAN NKRUMAH WALLACE

RESPONDENT

IN REMOVAL PROCEEDINGS

CHARGES:

Immigration and Nationality Act (INA) Section 237(a)(2)(A)(iii), in

that after admission the respondent was convicted of an
aggravated felony as defined in INA Section 101(a)(43)(G),a law
relating to a theft offense for which the term of imprisonment of at
least one year was imposed; INA Section 237(a)(2)(A)(iii), in that
after admission the respondent was convicted of an aggravated
felony as defined in INA Section 101(a)(43)(F),a crime of violence
for which the term of imprisonment ordered is at least one year; INA
Section 237(a)(2)(C),in that after admission the respondent was
convicted of a law relating to a firearms offense.

APPLICATIONS:

None.

ON BEHALF OF RESPONDENT: Pro Se

ON BEHALF OF OHS:

Gavignano

ORAL DECISION OF THE IMMIGRATION JUDGE

Removal proceedings against the respondent,Nickoyan Wallace, were
initiated on October 27th, 2015 with the filing in immigration court of a Notice to Appear.

Immigrant & Refugee Appellate Center, LLC | www.irac.net

November 19, 2015

File: A041-654-413

The notice alleged that the respondent was not a citizen or national of the United States
but was a native and citizen of Jamaica; that he was admitted to the United States at

25th,2006 he was convicted in the United States District Court at Rhode Island for the
offense of armed robbery; that for this offense he was sentenced to 120 months
imprisonment; that on October 25th, 2006 he was convicted in the United States District
Court at Rhode Island for the offense of theft of a firearm; and that for this offense he
was sentenced to 120 months in prison. He was charged with removability pursuant to
INA Sections 237(a)(2)(A)(iii) and 237(a)(2)(C). See Exhibit 1.
The respondent first appeared before the court in early November of 2015.
He was afforded an opportunity to try to find a lawyer to help him with his immigration
case. The respondent did acl<-U;i:i! the list of lawyers that provide free legal services.
The respondent's case was rescheduled for today's date. On today's date, the
respondent appearing by tele video_ ail!.ct told the court that he did not have an attorney
and was ready to proceed today. The court placed the respondent under oath and
talked to the respondent about the allegations in the Notice to Appear. The court also
received into evidence from the Department of Homeland Security's counsel a
conviction record contained at Exhibit 2. The respondent admitted to the first three
allegations in the Notice to Appear. A ,Jnd admitted that he had been convicted in
federal court in 2002 for armed robbery and theft of a firearm but pointed out that he
had also been convicted of other charges and that he ultimately served a sentence of
204 months. The conviction record at Exhibit 2 reflects that the respondent was actually
chargedwith four offenses as follows: armed robbery, conspiracy to commit armed
robbery,theft of a firearm, and carrying a firearm during a crime of violence. The
respondent was convicted of all four charges. For the first three counts he received a

A041-654-413

November 19, 2015

Immigrant & Refugee Appellate Center, LLC | www.irac.net

Miami on or about May 10th, 1988 as a lawful permanent resident; that on October

sentence of 120 months and for the 4th count, carrying a firearm during a crime of
violence, the respondent was sentenced to 84 months to run consecutively with the first

17 years in prison. The original date of judgment for the respondent's cases was March
28th, 2002 and the first page of the conviction record reflects that there was a date of
amended judgment on October 25th, 2006 which was used by the Department of
Homeland Security in determining the date of the conviction. In any event, the
respondent was convicted of the crimes of armed robbery and theft of a firearm. See
Counts one and three in the original indictment. Based upon the conviction record, this
court finds by clear and convincing and unequivocal evidence that the allegations set
forth in the Notice to Appear are true. /\_und the three charges of removability are all
sustained. The respondent has somewhat waffled on what he wants to do but finally
has decided to stand mute. He was given the opportunity to apply for Convention
Against Torture relief. The court told the respondent the court would provide him with
appropriate application._. i. J he respondent has decided not to do that and is calling
for a discharge of the proceedings or the charges. This is a meaningless statement.
The court is convinced that the respondent knows what these proceedings are about.
He's an articulate fellow and has asked some piercing albeit irrelevant; questions about
the jurisdiction of this court. There is no question that the respondent knows what is
going on and is choosing to be an obstructionist and not fill out his application for
Convention Against Torture relief, which is the only form of relief available to him.
Based on all of this, and based upon the fact that the respondent appears not to be
willing to pursue any form of relief, this court will order that he be removed to Jamaica.
ORDER
It is hereby ordered that the respondent has to be removed from the

A041-654-413

November 19, 2015

Immigrant & Refugee Appellate Center, LLC | www.irac.net

three counts. Thusly, the respondent did serve a total of 204 months_. tor approximately

United States and returned to Jamaica.

signature

A041-654-413

STEVEN F. DAY
Immigration Judge

November 19, 2015

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Please see the next page for electronic

/Isl/
Immigration Judge STEVEN F. DAY

A041-654-413

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days on January 12, 2016 at 11:24 AM GMT

November 19, 2015