Bistermu S. Mora Salgado, Petitioner,
v.
Jefferson B. Sessions III, Attorney General, Respondent.
Submitted March 8, 2018 [*] Pasadena, California
On
Petition for Review of an Order of the Board of Immigration
Appeals Agency No. A092-406-486
Pieter
D. Speyer, La Jolla, California, for Petitioner.
Lindsay M. Murphy, Trial Attorney; Keith I. McManus, Senior
Litigation Counsel; Office of Immigration Litigation, United
States Department of Justice, Washington, D.C.; for
Respondent.
Before: Ronald M. Gould and Mary H. Murguia, Circuit Judges,
and Jack Zouhary, [**] District Judge.
SUMMARY
[***]
Immigration
The
panel denied Bistermu Mora Salgado's petition for review
of a decision of the Board of Immigration Appeals, holding
that Salgado's complaints of poor memory, without
evidence of an inability to understand the nature and object
of the proceedings, were insufficient to show mental
incompetency.
At
Salgado's final hearing before an Immigration Judge, he
claimed that he had recently been in a small car accident
that was causing him memory loss. The IJ denied Salgado's
motion to continue the hearing for a medical exam, concluding
that he was competent to testify, and the BIA affirmed.
The
panel observed that the standard for mental incompetency as
set by the BIA in Matter of M-A-M-, 25 I. & N.
Dec. 474 (BIA 2011), and endorsed by this court in
Calderon-Rodriguez v. Sessions, 878 F.3d 1179 (9th
Cir. 2018), and Mejia v. Sessions, 868 F.3d 1118
(9th Cir. 2017), is a stringent one. Under that standard, to
demonstrate mental incompetency, a person must show some
inability to comprehend or to assist and participate in the
proceedings, some inability to consult with or assist their
counsel or their representative if pro se, and lack of a
reasonable opportunity to present evidence and examine
witnesses, including cross-examination of opposing witnesses.
The mere inability to recall some events, a common weakness,
and other similar mental lapses, are not sufficient to show
mental incompetency.
In this
case, the panel observed that there was no evidence that
Salgado did not comprehend the nature and object of the
proceedings. He was represented by counsel, and there was no
evidence that he was unable meaningfully to assist
counsel's defense efforts. The panel further concluded
that any memory loss Salgado may have experienced did not
prejudice his immigration proceedings, because his
application, not his poor memory, was the basis for the
IJ's denial of cancellation of removal. Accordingly, the
panel concluded that the IJ did not err by denying a
continuance, and that the BIA was correct to conclude that
Salgado did not show indicia of incompetency.
OPINION
GOULD,
Circuit Judge
Petitioner
Bistermu Mora Salgado (Salgado) is a lawful permanent
resident of the United States who emigrated from Mexico in
1981. Salgado has lived and worked in the United States off
and on since 1981. His wife also lives in the United States,
and is not a U.S. citizen, but his two sons are citizens. In
2006, Salgado attempted to smuggle a friend's child into
the United States by storing the child under the back seat of
his vehicle as he crossed the border with his two sons. U.S.
Customs and Border Protection found the stowaway child,
detained Salgado, and released Salgado's children.
Salgado confessed to the crime of smuggling, making him
eligible for removal, but argued that he was eligible for
cancellation of removal. Salgado's removal proceedings
have been pending since 2006 because of a series of
continuances and changes of venue. During this period of time
from 2006 to the present, Salgado continued to work in the
United States and paid to have his wife and her son smuggled
into the United States.
In
2013, there was finally a merits hearing in Salgado's
case. At that hearing, Salgado claimed that he had been
involved in a small car accident a week before that was
causing him memory loss. The Immigration Judge (IJ) denied
counsel's motion to continue the hearing for Salgado to
undergo a medical exam. Salgado gave unclear testimony about
his U.S. addresses and prior convictions, but the IJ did not
make an adverse credibility finding. The IJ rendered an oral
decision finding Salgado ineligible for relief because the
negatives of Salgado's application, including prior
arrests and convictions, participation in smuggling, and lack
of significant ties to the United States, outweighed the
positives, such as his work and length of residence in the
United States. A three-judge panel of the Board of
Immigration Appeals (BIA) affirmed the IJ's decision,
concluding that the IJ's mental competency assessment was
not in error and that the IJ correctly exercised his
discretion to deny Salgado relief.
Salgado
argues on appeal that the IJ erred by finding him competent
to testify at the hearing. We hold that Salgado's
complaints of poor memory, without evidence of an inability
to understand the nature and object of the proceedings, are
insufficient to show mental incompetency. We further conclude
that any memory loss Salgado may have experienced did not
prejudice his immigration proceedings, because his
application, not his poor memory, was the basis for the
IJ's denial of cancellation of removal.
I
A
After
seven years of continuances and transfers, Salgado at long
last had his merits hearing before the IJ. When asked for his
current address, Salgado said that he could not remember
because "I had an accident last Friday . . . and my
memory is not very well." Salgado had been living at his
then current address for at least two years. On the one hand,
in support of his mental incompetency claim, Salgado
testified that he was "a bit confused" and that he
did not "have a memory to remember things right
now." But, on the other hand, he did not go to the
hospital after the accident. Nevertheless, Salgado stated
that he did not feel he could testify. Salgado's ...