Salgado v. Sessions

          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 ...