Romulo Flores v. Merrick Garland ( 2022 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS FEB 18 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROMULO FLORES, AKA X. Cesar, AKA No. 19-72559
Pomulo Flores, AKA Romulfo Hidalgo
Flores, AKA Romulo Flores-Hidalgo, AKA Agency No. A094-160-589
Romulo Floreshidalgo, AKA Cesar Florez,
AKA Cesar Marcos Florez, AKA Marcos
Florez, AKA Francisco Garcia, AKA MEMORANDUM*
Romulfo F. Hidalgo, AKA Romulfo Flores
Hidalgo, AKA Romulo Flores Hildago,
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and submitted February 9, 2022
San Francisco, California
Before: WARDLAW, IKUTA, and BADE, Circuit Judges.
Romulo Flores seeks review of the Board of Immigration Appeals’ (“BIA”)
dismissal of his appeal from an Immigration Judge’s (“IJ”) decision finding him
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
competent to represent himself in removal proceedings and a prior decision
denying his application for protection under the Convention Against Torture
(“CAT”). We have jurisdiction under 8 U.S.C. § 1252 and deny the petition in part
and dismiss it in part.
1. The agency did not abuse its discretion in finding Flores sufficiently
competent to represent himself in removal proceedings. When determining
whether an applicant is competent, an IJ must articulate his or her reasoning, see
Mejia v. Sessions, 868 F.3d 1118, 1121 (9th Cir. 2017), and the IJ did so here. The
IJ explained that Flores’s behavior in court was inconsistent across the hearings
that he presided over and with Flores’s medical records. The IJ also found that his
observations were consistent with the conclusions from a Forensic Competency
Evaluation.
Flores’s argument that the agency improperly shifted the burden of proof
from the government to him rests on a flawed understanding of the law. When an
IJ engages in a competency evaluation, “neither party bears a formal burden of
proof.” Matter of J-S-S-, 26 I. & N. Dec. 679, 683 (B.I.A. 2015). And there is no
indication in the record that the agency required Flores to prove his incompetence.
Moreover, we are not persuaded by Flores’s contention that the agency erred by
focusing on “whether the evidence demonstrated that [he] was incompetent—when
[it] should have focused on whether a preponderance of the evidence demonstrated
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that [he] was competent.” The agency confronted a binary choice: competent or
not. If the greater weight of the evidence established that Flores was incompetent,
it follows that a preponderance of the evidence could not establish that he was
competent (or vice versa). See Preponderance of the Evidence, BLACK’S LAW
DICTIONARY (11th ed. 2019).
Finally, even assuming the IJ erred in finding “no reasonable cause to
believe that [Flores] is suffering from a mental disorder that impairs his ability to
competently represent himself,” the BIA corrected that error by stating and
applying the preponderance of the evidence standard. See Ghaly v. INS, 58 F.3d
1425, 1430 (9th Cir. 1995) (“Any error committed by the IJ will be rendered
harmless by the Board’s application of the correct legal standard.”). We therefore
conclude that the agency did not commit reversable error in assessing Flores’s
competence.
2. Substantial evidence supports the agency’s denial of CAT relief
because Flores did not establish that it is more likely than not that he will be
tortured by or with the consent or acquiescence of the Salvadoran government.
Flores argues that the agency did not consider the Country Report on Human
Rights Practices for 2015 for El Salvador, which, in his view, provides “the
necessary link between [his] likely torture and the acquiescence of El Salvadorian
officials.” But the IJ in this case observed that Flores submitted “the El
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Salvadorian human rights report” and explicitly stated that she had “considered all
the evidence in its entirety, regardless of whether specifically mentioned in the text
of [her] decision.” The agency need not “discuss every piece of evidence,” see
Almaghzar v. Gonzales, 457 F.3d 915, 922 (9th Cir. 2006) (as amended), because it
is presumed that the agency “review[s] all relevant materials in the record,” Larita-
Martinez v. INS, 220 F.3d 1092, 1095–96 (9th Cir. 2000). Because Flores has not
overcome that presumption, see Almaghzar, 457 F.3d at 922, we reject his
argument.1
Flores also contends that the agency erred by not addressing whether the
“denial of CAT relief could have been due to [his] incompetency.” We lack
jurisdiction to consider this unexhausted contention. See 8 U.S.C. § 1252(d)(1);
Arsdi v. Holder, 659 F.3d 925, 928–30 (9th Cir. 2011).
3. Flores argues that the IJs who issued decisions in this case are
1
We need not address Flores’s argument that the IJ “erred by requiring a
first-hand or personally delivered threat.” See INS v. Bagamasbad, 429 U.S. 24, 25
(1976) (per curiam) (“As a general rule courts and agencies are not required to
make findings on issues the decision of which is unnecessary to the results they
reach.”); see also Silaya v. Mukasey, 524 F.3d 1066, 1073 (9th Cir. 2008) (denying
a petition for relief under CAT because the petitioner did “not demonstrate[] that,
more likely than not, she will be tortured at the instigation of, or with the
acquiescence of the Philippine government”). We note, however, that the IJ based
her decision on “the totality of the evidence,” including that Flores “did not
attempt to relocate to any new area of El Salvador, and made no efforts to seek
police protection.”
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unconstitutionally insulated from removal.2 Flores did not exhaust this argument
with the agency. But “certain constitutional challenges that are not within the
competence of administrative agencies to decide” are exempt from 8 U.S.C.
§ 1252(d)(1)’s exhaustion requirement. Barron v. Ashcroft, 358 F.3d 674, 678 &
n.6 (9th Cir. 2004).
Flores’s argument arises from the Appointments Clause, see Seila Law LLC
v. C.F.P.B., 140 S. Ct. 2183, 2191–92 (2020), which “is among the significant
structural safeguards of the constitutional scheme,” Edmond v. United States, 520
U.S. 651, 659 (1997). Cf. U.S. CONST. art. II, § 2, cl. 2. Because the agency
generally lacks jurisdiction to resolve constitutional issues, see Matter of C-, 20 I.
& N. Dec. 529, 532 (B.I.A. 1992), and the Supreme Court “has often observed that
agency adjudications are generally ill suited to address structural constitutional
challenges,” Carr v. Saul, 141 S. Ct. 1352, 1360 (2021), we will consider Flores’s
2
Flores waived his challenge to the constitutionality of any removal
protections afforded to members of the BIA by raising the issue for the first time in
a footnote in his reply brief. See Martinez-Serrano v. INS, 94 F.3d 1256, 1259 (9th
Cir. 1996) (“It is well established in this circuit that the general rule is that
appellants cannot raise a new issue for the first time in their reply briefs.”
(alteration and internal quotation marks omitted)). We reject Flores’s invitation to
interpret the term “‘immigration judges’ as a catch-all to encompass both judges
presiding over removal proceedings and judges sitting on the Board of Immigration
Appeals.” The BIA and IJs serve distinct functions in removal proceedings and
treating them as interchangeable defies the agency’s administrative scheme.
Compare, e.g., 8 C.F.R. § 1003.1 (outlining the jurisdiction and powers of the
BIA), with, e.g., id. § 1003.10 (outlining the powers and duties of IJs).
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challenge to the removal protections enjoyed by IJs.
We reject Flores’s argument that he is entitled to a new hearing on this
ground, because even assuming IJs are inferior officers who are afforded removal
protections that contravene the Constitution’s separation of powers, Flores has not
shown that any alleged restrictions caused him harm. See Collins v. Yellen, 141 S.
Ct. 1761, 1787–89 (2021) (declining to void an action taken by an officer absent a
showing that an “unconstitutional removal provision inflicted harm,” and
explaining that a removal provision would cause a plaintiff harm if, for example,
“the President had attempted to remove [the officer] but was prevented from doing
so by a lower court decision holding that he did not have ‘cause’ for removal,” or if
“the President had made a public statement expressing displeasure with actions
taken by [the officer] and had asserted that he would remove the [officer] if the
statute did not stand in the way”); see also Decker Coal Co. v. Pehringer, 8 F.4th
1123, 1136–38 (9th Cir. 2021).
Flores argues that because no showing of harm was required in Lucia v.
S.E.C., 138 S. Ct. 2044 (2018), none should be required in this case. But Lucia
concerned an allegedly unconstitutional appointment, not a restriction on the
President’s removal power. See id. at 2055. Flores does not contest the
constitutionality of the IJs’ appointments in this case; he asserts only that they were
unconstitutionally insulated from removal. Flores’s reliance on Lucia is therefore
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misplaced. See Collins, 141 S. Ct. at 1788 & n.24. And his “insistence that Lucia
mandates a new hearing . . . is incorrect.” See Decker Coal, 8 F.4th at 1136–37.
We therefore reject Flores’s constitutional claim.
The petition for review is DENIED IN PART and DISMISSED IN PART.
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