United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit

____________ FILED October 24, 2024 No. 20-61134 Lyle W. Cayce ____________ Clerk Alex Francois,

Petitioner,

versus Merrick Garland, U.S. Attorney General,

Respondent. ______________________________

Petition for Review of an Order of the Board of Immigration Appeals Agency No. A213 071 387 ______________________________ Before Stewart, Dennis, and Wilson, Circuit Judges. James L. Dennis, Circuit Judge: Petitioner Alex Francois appeals the Board of Immigration Appeals (BIA)’s decision dismissing his appeal of the Immigration Judge (IJ)’s order denying withholding of removal and protection under the Convention Against Torture (CAT). Because the BIA also dismissed Francois’s motion to reconsider, he further petitions for review of the BIA’s denial of his motion to reconsider its dismissal order. We hold that the BIA deprived Francois of due process in its September 18, 2019, decision by violating its own regulations. Accordingly, we GRANT both of Francois’s petitions for Case: 20-61134 Document: 207-1 Page: 2 Date Filed: 10/24/2024

No. 20-61134

review, VACATE the BIA’s orders, and REMAND for the BIA to review the IJ’s April 22, 2019, order under the proper standards of review. I In 1979, Francois left Haiti for the United States without valid documentation to reunite with his U.S. citizen father. Now in his mid-sixties, Francois has lived and worked in New York City for much of his life and raised six U.S. citizen children—two of whom are military veterans. Francois suffers from severe mental illness, including schizophrenia, psychotic disorder, and bipolar disorder. His symptoms include psychosis, delusions, engaging in self-talk, laughing to himself, and “bizarre” behavior, such as drinking his own urine and eating grass. Since 2011, Francois has been hospitalized for mental health treatment at least five times. Francois has also had several encounters with law enforcement, although at least twice he was found incompetent to stand trial, and many offenses were dismissed or traceable to his mental illness. Most recently, in July 2017, Francois was arrested for trespassing in Bell County, Texas. After Francois was found incompetent to stand trial in October 2017, he was admitted to Austin State Hospital for three months to undergo intensive psychiatric treatment. In January 2018, Francois was transferred to the custody of U.S. Immigration and Customs Enforcement. Then, the Department of Homeland Security served Francois with a Notice to Appear (NTA), charging him with removability under 8 U.S.C. § 1182(a)(6)(A)(i). In July 2018, Francois appeared pro se before an IJ and admitted to the factual allegations in the NTA and conceded that he was removable as charged. Francois later obtained counsel, and through his attorney, requested a competency hearing. The IJ held a hearing and found Francois to be mentally incompetent. Francois subsequently filed his I-589 application for asylum,

2 Case: 20-61134 Document: 207-1 Page: 3 Date Filed: 10/24/2024

No. 20-61134

withholding