Respondent Must Invoke Right to Review Evidence: Second Circuit Reads 8 C.F.R. § 1240.10(a)(4) as Advisory Only and Reaffirms Presumption of Competence in Removal Proceedings

Note: This is a summary order of the U.S. Court of Appeals for the Second Circuit. Under Federal Rule of Appellate Procedure 32.1 and Second Circuit Local Rule 32.1.1, summary orders issued after January 1, 2007, may be cited but do not have precedential effect.

Introduction

This commentary analyzes the Second Circuit’s summary order in Sahin v. Bondi, No. 23-8043-ag (2d Cir. Sept. 11, 2025), denying a petition for review of a Board of Immigration Appeals (BIA) decision that affirmed an Immigration Judge’s (IJ’s) denial of asylum, withholding of removal, and protection under the Convention Against Torture. The panel—Chief Judge Livingston and Circuit Judges Cabranes and Parker—addressed two procedural-due-process-focused claims raised by petitioner Dervis Erdem Sahin: (1) that the IJ violated agency regulations by denying him a “reasonable opportunity to examine and object to” a State Department Country Report, and (2) that the IJ erred by failing to investigate his competency under Matter of M-A-M-, 25 I. & N. Dec. 474 (B.I.A. 2011).

The decision is significant for two reasons. First, it clarifies that 8 C.F.R. § 1240.10(a)(4) imposes on the IJ a duty to advise respondents of their right to a reasonable opportunity to examine and object to evidence, but it does not create an affirmative obligation for the IJ to verify invocation of that right or to enforce it unprompted. The court places the onus on respondents to invoke and enforce that right during proceedings. Second, it reaffirms that a mental health diagnosis—here, PTSD and anxiety—does not itself trigger a competency inquiry under M-A-M- absent “indicia” that the respondent cannot understand or meaningfully participate in proceedings.

Although nonprecedential, the order offers practical guidance for litigants and IJs in the Second Circuit on regulatory due process and competency assessments in removal proceedings.

Summary of the Opinion

The Second Circuit denied Sahin’s petition for review. On the regulatory claim, the court held there was no violation of 8 C.F.R. § 1240.10(a)(4) because the IJ had advised Sahin—on April 5, 2023—of his right to a reasonable opportunity to examine and object to the evidence. The regulation requires advisement of the right; it does not obligate the IJ to confirm on the record whether a respondent wishes to invoke that right or to police its exercise sua sponte. The court distinguished Montilla v. INS, 926 F.2d 162 (2d Cir. 1991), and Picca v. Mukasey, 512 F.3d 75 (2d Cir. 2008), which interpreted § 1240.10(a)(1) to require an on-the-spot colloquy about the right to counsel, noting that § 1240.10(a)(4) lacks analogous “then and there” language.

On the competency claim, the court applied the presumption of competence in Matter of M-A-M- and found no indicia requiring further investigation. Despite Sahin’s PTSD and anxiety and his submission of medical reports to the BIA, the record showed he understood the proceedings, responded to complex questions, asked clarifying questions, sought extensions, submitted photographic evidence, and advocated against the government’s position. He referenced mental health primarily to explain delays in obtaining corroborating documents, also citing conditions in Turkey and his expectation of release from detention.

Having rejected both principal arguments, the court stated it had considered Sahin’s remaining contentions and found them meritless. The petition for review was denied.

Analysis

Precedents Cited and Their Role

• Montilla v. INS, 926 F.2d 162 (2d Cir. 1991), Rajah v. Mukasey, 544 F.3d 427 (2d Cir. 2008), Waldron v. INS, 17 F.3d 511 (2d Cir. 1993), and Garcia-Villeda v. Mukasey, 531 F.3d 141 (2d Cir. 2008):

  Together, these authorities frame the due process/regulatory compliance landscape in removal proceedings. The Fifth Amendment protects against procedures that transgress fundamental notions of fair play. Ordinarily, to prevail on a due process claim, a noncitizen must show prejudice. Montilla and Waldron create a narrow exception: where the agency fails to follow its own regulation and the regulation safeguards a fundamental right, a petitioner need not show prejudice to obtain relief. In Sahin, the court recited this framework but found no regulatory violation—so the Montilla/Waldron exception did not apply.

• 8 C.F.R. § 1240.10(a)(4):

  This regulation requires IJs to “advise” respondents that they will have a reasonable opportunity to examine and object to evidence against them. The Second Circuit interpreted the rule as an advisement requirement, not an affirmative duty to elicit, verify, or enforce invocation of the right. The panel endorsed a respondent-driven model: the respondent must invoke and seek enforcement of the “reasonable opportunity” right during proceedings.

• 8 C.F.R. § 1240.10(a)(1) and Picca v. Mukasey, 512 F.3d 75 (2d Cir. 2008):

  Montilla and Picca involved the right to counsel. Section 1240.10(a)(1) requires that the IJ advise the respondent of the right to representation and secure an on-the-record, “then and there” response about whether the respondent wishes to exercise that right. The Sahin panel contrasts this explicit colloquy requirement with § 1240.10(a)(4), which contains no similar textual command—supporting its conclusion that § 1240.10(a)(4) is advisory only.

• Aquino v. Attorney General, 53 F.4th 761, 767 (3d Cir. 2022):

  The court cited Aquino to support its reading that mere advisement satisfies § 1240.10(a)(4). While a Third Circuit decision is not binding on the Second Circuit, the cross-circuit alignment underscores a textual approach that distinguishes between advisement-only provisions and those with affirmative colloquy requirements.

• Matter of M-A-M-, 25 I. & N. Dec. 474 (B.I.A. 2011):

  M-A-M- provides the governing framework for competency in removal proceedings: respondents are presumed competent; absent indicia of incompetency, IJs need not conduct a competency analysis; and a diagnosis alone is not determinative. Competency entails the ability to understand the nature and object of proceedings, consult with counsel if present, and reasonably examine and present evidence and cross-examine witnesses. In Sahin, the panel held that the record lacked indicia requiring any additional safeguards or inquiry.

• Gjerjaj v. Holder, 691 F.3d 288 (2d Cir. 2012):

  Establishes that challenges to an IJ’s compliance with agency regulations present legal questions reviewed de novo—applied here to the § 1240.10(a)(4) claim.

Legal Reasoning

The court’s reasoning proceeds in two tracks—regulatory due process and competency.

1) Regulatory Due Process Under § 1240.10(a)(4)

First, the court frames the doctrinal backdrop: due process ordinarily requires a showing of prejudice, but the Montilla/Waldron exception obviates that requirement if the agency fails to follow its own regulation that protects a fundamental right.

Second, the court construes § 1240.10(a)(4). The operative verb is “advise”: the IJ must inform the respondent that he will have a reasonable opportunity to examine and object to the evidence. Unlike § 1240.10(a)(1), the provision lacks any textual requirement that the IJ elicit an on-the-record invocation or police the right’s exercise. This textual distinction is central: where the regulation explicitly requires the IJ to prompt and record the respondent’s choice “then and there” (as for the right to counsel), courts enforce that requirement strictly; where the regulation requires only advice (as here), advising satisfies the regulation.

Third, the court applies that construction to the facts. The IJ advised Sahin on April 5, 2023, thereby complying with § 1240.10(a)(4). Sahin later informed the IJ he had not received the State Department Country Report and was given five minutes to review it; he argued this was not a “reasonable opportunity.” The court held that because the regulation does not require the IJ to ensure a reasonable opportunity sua sponte or to confirm whether the respondent wishes to invoke the right, no violation occurred. The panel expressly states that the “onus is instead on a respondent to invoke and enforce that right.” Without a regulatory violation, the Montilla exception does not apply.

Notably, the court resolved the claim on a narrow regulatory ground and did not separately analyze whether the specific time allotted to review the report violated due process under the ordinary prejudice standard. The opinion reiterates the general requirement of prejudice for due process claims but does not apply it because the Montilla theory failed at step one (no regulatory breach).

2) Competency Under Matter of M-A-M-

On competency, the court starts with M-A-M-’s presumption of competence. The IJ must take further measures only if the record shows indicia that the respondent lacks a rational and factual understanding of the proceedings, cannot consult with counsel, or cannot reasonably present and challenge evidence.

Here, although Sahin reported PTSD linked to the 2023 Turkey earthquake and anxiety for which he was taking medication, and he submitted medical reports to the BIA, the court held that these facts alone did not amount to indicia of incompetency. The panel pointed to Sahin’s conduct in proceedings: he responded appropriately to the IJ’s inquiries, sought clarification when necessary, answered complex factual questions, requested extensions, submitted photographic evidence, and rebutted the government’s arguments. He raised mental health primarily to explain difficulties obtaining corroboration but also cited external factors (conditions in Turkey and expectations regarding release from detention). On this record, no competency inquiry or safeguards were required.

Impact and Practical Implications

Although nonprecedential, Sahin offers concrete guidance likely to influence practice in the Second Circuit and beyond.

• Clarifying the scope of § 1240.10(a)(4): The decision aligns with the Third Circuit’s Aquino in reading § 1240.10(a)(4) as an advisement-only provision. This narrows the path for Montilla-based regulatory challenges premised on claims that an IJ failed to provide adequate time to review evidence. Absent a specific regulatory mandate to elicit an on-the-record invocation, respondents must affirmatively assert and preserve their right to a reasonable opportunity to examine and object to evidence—e.g., by requesting more time, a continuance, or lodging a specific objection and explaining prejudice on the record.
• Litigation strategy and record preservation: Practitioners should explicitly invoke the “reasonable opportunity” right when confronted with late-disclosed or voluminous evidence (such as State Department reports), request additional time or a short adjournment, and state with specificity how insufficient time impedes fairness. If regulatory claims fail, preserving a separate constitutional due process claim with a prejudice showing may remain viable.
• IJ best practices: While not required by § 1240.10(a)(4), IJs may still choose, as a matter of best practice, to confirm on the record that the respondent has had adequate time to review newly offered evidence and to entertain reasonable requests for additional time. Such practices reduce appellate risk and promote fairness, especially in detained dockets where time constraints are acute.
• Competency assessments post–M-A-M-: The order reaffirms that mental health diagnoses alone do not trigger safeguards or inquiries. Objective indicia tied to functional impairments in understanding, communication with counsel, or participation are required. Respondents relying on competency-based arguments should develop the record with specific examples of confusion, inability to follow proceedings, or breakdowns in communication, and counsel should flag these indicia contemporaneously to prompt IJ measures.
• Nonprecedential but citable: Under FRAP 32.1 and Local Rule 32.1.1, summary orders may be cited. Sahin provides persuasive authority on the interpretation of § 1240.10(a)(4) and the application of M-A-M- in the Second Circuit, especially where records show advisement was given and participation was coherent and engaged.

Complex Concepts Simplified

• Montilla/Waldron (Accardi) principle: Agencies must follow their own regulations. If an agency violates a regulation that protects a fundamental statutory or constitutional right, a petitioner can obtain relief without proving prejudice. But the threshold question is whether there was a regulatory violation at all. In Sahin, there was not.
• “Reasonable opportunity to examine and object to evidence” (8 C.F.R. § 1240.10(a)(4)): This is a respondent’s procedural right in removal proceedings. The IJ must advise the respondent of this right. The respondent, not the IJ, bears responsibility to invoke it—e.g., by requesting time to review late-disclosed evidence or objecting to admission without adequate review.
• Difference between § 1240.10(a)(1) and § 1240.10(a)(4): The right-to-counsel rule (§ 1240.10[a][1]) requires an on-the-record colloquy (“then and there” response), whereas the evidence-review rule (§ 1240.10[a][4]) requires only advisement. That textual difference limits the scope of enforceable IJ duties under each subsection.
• Prejudice requirement in due process claims: Outside the Montilla/Waldron exception, a due process claim typically fails without a showing that the alleged procedural error likely affected the outcome.
• Competency under Matter of M-A-M-: Respondents are presumed competent. Indicia of incompetency—which might include confusion about the nature of proceedings, inability to answer basic questions, or inability to assist counsel—triggers IJ measures to assess competence and implement safeguards. A mental health diagnosis alone is insufficient; the inquiry focuses on functional abilities during proceedings.
• State Department Country Reports: These reports summarize conditions in an applicant’s home country and are frequently used by DHS and considered by IJs and the BIA in assessing asylum, withholding, and CAT claims. Respondents should review them carefully and object if they believe they need more time to address or rebut their contents.

Conclusion

Sahin v. Bondi clarifies two recurring procedural issues in removal proceedings. First, the Second Circuit interprets 8 C.F.R. § 1240.10(a)(4) as imposing an advisement duty only: IJs must inform respondents of their right to a reasonable opportunity to examine and object to evidence, but need not verify its invocation or enforce it sua sponte. The burden rests on respondents to request and preserve adequate time to review and object, and absent a regulatory breach, the Montilla/Waldron exception to the prejudice requirement does not apply.

Second, the court reaffirms the M-A-M- competency framework: a diagnosis of mental illness is not, without more, an indicator of incompetence. The record must demonstrate functional impairments affecting understanding or participation to trigger IJ measures. Where, as here, a respondent meaningfully engages with the proceedings—answering questions, seeking clarifications, submitting evidence, and responding to government arguments—no competency inquiry is required.

Though nonprecedential, the order offers clear, text-focused guidance likely to shape how parties litigate regulatory due process and competency in immigration courts within the Second Circuit. The key takeaways for practitioners are to (1) expressly invoke the right to a reasonable opportunity to review and object to evidence, making specific requests for time and articulating prejudice on the record, and (2) substantiate any competency concerns with concrete indicia tied to the respondent’s ability to understand and participate, rather than diagnosis alone.