Bistermu Mora Salgado v. Jefferson Sessions ( 2018 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BISTERMU S. MORA SALGADO, No. 14-71890
Petitioner,
Agency No.
v. A092-406-486
JEFFERSON B. SESSIONS III, Attorney
General, OPINION
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 8, 2018 *
Pasadena, California
Filed May 8, 2018
Before: Ronald M. Gould and Mary H. Murguia, Circuit
Judges, and Jack Zouhary, ** District Judge.
Opinion by Judge Gould
*
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
**
The Honorable Jack Zouhary, United States District Judge for the
Northern District of Ohio, sitting by designation.
2 SALGADO V. SESSIONS
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
***
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
SALGADO V. SESSIONS 3
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.
COUNSEL
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.
4 SALGADO V. SESSIONS
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
SALGADO V. SESSIONS 5
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 counsel petitioned the IJ to continue the
hearing in light of Salgado’s memory difficulties, and the IJ
requested questioning regarding the accident.
6 SALGADO V. SESSIONS
Salgado then testified that he was going 35 to 40 miles
per hour on I-5 when he hit another car. He testified that the
accident was not bad, and that the police were not called.
But he testified that he and the other driver exchanged
insurance information, and that his car was damaged more
than the other car. Salgado stated that he had not suffered
physical injuries but was having mental difficulties. Salgado
had not told his counsel about the accident, although he saw
her after the accident and before the hearing. The IJ declined
to grant the continuance.
Salgado could not give full addresses for places where
he had lived in the United States, and he gave unclear
testimony about a series of years when his wife and two sons
lived in Mexico while he lived in the United States. Salgado
at first stated that he was unemployed during that time, but
later stated that he was self-employed, collecting items he
could resell for money.
When Salgado was arrested on the smuggling charge in
2006, his family was living in Mexico. Salgado attempted
to smuggle a child into the United States for a friend, but he
could not remember the name of the child or the friend’s last
name. Salgado stated that it was the only time he had tried
to smuggle someone into the country. Salgado stated that he
was “confused” and “remorseful” when he was detained in
2006. He testified that the 2006 interview was in English,
although the sworn statement reflects the interview was in
Spanish. Apart from his smuggling crime, Salgado has
several other criminal convictions and arrests: a 1999
domestic violence incident when he slapped his wife across
the cheek while intoxicated, a 1991 trespassing/petty theft
conviction, and two DUIs.
Salgado testified that he first came to the United States
at the age of 15, in about 1981. While Salgado’s wife and
SALGADO V. SESSIONS 7
children generally lived in Mexico, he would bring his
children to school in the United States. Salgado could not
give the name of the school his children attended, but noted
that his children did not start attending school here until after
the 2006 smuggling incident. For three years, Salgado
would spend three to four nights a week in Mexico, where
his children were living, and then drive his children to school
in the United States in the morning. Salgado had been
making payments on a home in Tijuana, Mexico for 13 or
14 years at the time of the hearing.
B
The IJ began his oral decision by noting that Salgado
admitted to the attempted smuggling of a minor child into
the United States. The IJ observed that Salgado testified at
the hearing despite the fact that he had been involved in a
“very minor” accident, with little damage to his car and no
physical injuries, the Friday before the hearing. Salgado
failed to mention the accident to his counsel, even though he
met with her a few days later. The IJ found no “signs
whatsoever of any kind of problem that would affect
[Salgado’s] ability to testify and make him incompetent to
testify.” The IJ further found that Salgado was alert, asked
for clarification when he did not understand, and sometimes
answered before the translator had finished his translation.
The IJ determined that Salgado’s eligibility for
cancellation was in question because Salgado had lived in
Tijuana, Mexico for at least two years. The IJ noted that
Salgado’s testimony regarding his U.S. addresses was “very
sketchy and vague” and that Salgado could not even
remember his current U.S. address, where he had resided for
the last two years. The IJ assumed arguendo that despite
inconsistencies in testimony and work history
8 SALGADO V. SESSIONS
documentation, Salgado could meet the residency
requirements.
But the IJ concluded that Salgado had not met his burden
to show that he deserved a favorable exercise of discretion
for cancellation: Salgado had two DUI convictions, a
conviction for domestic violence, and several arrests; he
helped his wife to illegally enter the United States on more
than one occasion, including after the child smuggling
incident which was the basis for this removal proceeding;
there was uncertainty about the length of his residence in the
United States, particularly because he owned a home in
Tijuana, Mexico, where he lived at various points; and both
of Salgado’s children lived in Mexico during their formative
years.
The IJ considered Salgado’s positives, including that he
had a long period of residence in the United States, that his
two children were born in the United States, and that he
could not continue his job at the Coronado Brewery if he
were removed. But the IJ concluded that the positives did
not outweigh the negatives to favor a discretionary grant of
cancellation of removal.
C
A three-judge panel of the BIA affirmed the IJ’s
determination that Salgado was mentally competent to
participate in the removal proceedings. The BIA found that
based on the testimony Salgado gave, the IJ correctly
rejected his request for a continuance for a medical
evaluation. The BIA found that “[a]lthough the record
reflects that the respondent did have trouble remembering
certain addresses and residences, there is no evidence or
assertion that the respondent lacked ‘a rational and factual
understanding of the nature and object of the proceedings.’”
SALGADO V. SESSIONS 9
It further concluded that Salgado had an opportunity to
consult with counsel and examine and present evidence as
required by Matter of M-A-M-, 25 I. & N. Dec. 474 (BIA
2011). The BIA noted that the facts that Salgado could not
remember, including addresses and dates of residence, went
to the issue of continuous residence, on which the IJ did not
rule in denying Salgado’s application for cancellation of
removal.
The BIA also found that the IJ correctly denied
Salgado’s requested relief of cancellation of removal
because his adverse factors—paying for his wife to be
smuggled and attempting to smuggle a friend’s child into the
United States, criminal convictions, and not creating
significant United States ties—together outweighed his
residence in the United States. The BIA affirmed the IJ’s
conclusion that Salgado did not meet his burden of
establishing eligibility for cancellation of removal.
II
Salgado only contests the IJ’s conclusion that a
continuance was not warranted after the IJ determined
Salgado had not shown indicia of mental incompetency, and
the BIA’s affirmance of that decision. We review for abuse
of discretion whether the BIA has clearly departed from its
own standards. Mejia v. Sessions, 868 F.3d 1118, 1121 (9th
Cir. 2017).
III
Salgado argues that the IJ erred by not granting his
counsel’s request for a continuance when Salgado’s
competency was questioned, and that a lack of medical
evidence of mental illness is not dispositive. The
Government counters that Salgado failed to show he was not
10 SALGADO V. SESSIONS
competent to proceed at the hearing. On this point, we agree
with the Government.
The Government further argues the IJ did not rely on any
facts related to Salgado’s memory issues in exercising
discretion to deny him cancellation of removal, and therefore
his claimed mental incompetency is ultimately irrelevant.
We disagree with the premise—that lack of reliance would
make mental incompetency irrelevant—but we need not
decide that issue.
The BIA here concluded that Salgado had not shown
indicia of incompetency as set forth in Matter of M-A-M-,
25 I. & N. Dec. 474, because the record did not indicate that
Salgado was unable to understand the nature and object of
the proceedings. This is the crux of the matter before us.
The BIA in M-A-M- describes the presumption of
competency and the procedure an IJ should employ in
determining if a petitioner is competent:
(1) Aliens in immigration proceedings are
presumed to be competent and, if there are no
indicia of incompetency in a case, no further
inquiry regarding competency is required.
(2) The test for determining whether an alien
is competent to participate in immigration
proceedings is whether he or she has a
rational and factual understanding of the
nature and object of the proceedings, can
consult with the attorney or representative if
there is one, and has a reasonable opportunity
to examine and present evidence and cross-
examine witnesses.
SALGADO V. SESSIONS 11
(3) If there are indicia of incompetency, the
Immigration Judge must make further inquiry
to determine whether the alien is competent
for purposes of immigration proceedings.
(4) If the alien lacks sufficient competency to
proceed, the Immigration Judge will evaluate
appropriate safeguards.
(5) Immigration Judges must articulate the
rationale for their decisions regarding
competency issues.
Id. at 474. In M-A-M-, a person with a history of
schizophrenia went through a hearing unrepresented and
complaining of mental difficulties. Id. at 475. The appeal
was remanded to the IJ to determine whether the petitioner
was competent and whether any safeguards should apply.
Id. at 474–75. The BIA noted that “health-related
complaints such as headache and poor memory do not rise
to the level of mental incompetency.” Id. at 477 (citing
Nelson v. INS, 232 F.3d 258, 261–62 (1st Cir. 2000)).
Indicia of incompetency include “the inability to
understand and respond to questions, the inability to stay on
topic, or a high level of distraction,” as well as “evidence of
mental illness.” M-A-M-, 25 I. & N. Dec. at 479. Two recent
cases serve as examples of the indicia of incompetency we
recognize: Calderon-Rodriguez v. Sessions, 878 F.3d 1179(9th Cir. 2018) and Mejia v. Sessions, 868 F.3d 1118 (9th
Cir. 2017).
In Calderon-Rodriguez, we were presented with a
petitioner who had documented post-traumatic stress
disorder, depression, and sleep disturbance. 878 F.3d at
12 SALGADO V. SESSIONS
1181. There, the IJ and BIA did not seek updated medical
records from the Department of Homeland Security, which
was providing the petitioner medical care. Id. at 1183. We
concluded that the BIA abused its discretion in affirming the
IJ’s competency evaluation because the IJ’s factual finding
about the nearly year-old mental health evidence was
inaccurate; and the IJ departed from the M-A-M- standard
requiring the IJ to take “at least some measures” to determine
whether petitioner was competent. Id. at 1183 (internal
quotation marks and citation omitted).
In Mejia, we determined the petitioner presented clear
indicia of incompetency. 868 F.3d at 1121. We noted the
petitioner had a history of serious mental illness, including
hallucinations, and he testified at the hearing that he was not
taking his medication and that he was not feeling well,
including “feeling a very strong pressure” in his head. Id. at
1121–22. We concluded that with those indicia, the IJ was
under a duty to explain whether the petitioner was competent
and what, if any, procedural safeguards were needed. Id. at
1122 (noting that petitioner was represented by counsel).
But the mere inability to remember certain events and
give certain testimony does not amount to mental
incompetency. Here, Salgado’s alleged mental
incompetency solely relates to his allegation of poor
memory. Salgado does not have a history of mental illness
like the petitioners in M-A-M, Calderon-Rodriguez, and
Mejia. Salgado did not show an inability to answer
questions or a high level of distraction. See Mejia, 868 F.3d
at 1121–22. Nor did he show an inability to stay on topic.
See M-A-M-, 25 I. & N. Dec. at 479. The IJ found that
Salgado was alert, asked for clarification when he did not
understand, and sometimes answered before the translator
finished his translation. As the BIA explained, Salgado did
SALGADO V. SESSIONS 13
not allege that the accident affected his ability to
comprehend the proceedings.
This is a case of poor memory at the most. See Nelson
v. INS, 232 F.3d 258, 262 (1st. Cir. 2001) (concluding that
the petitioner’s complaints of forgetting things and having
bad memory were not sufficient to rise to the level of mental
incompetency) (citing Nee Hao Wong v. INS, 550 F.2d 521,
522 (9th Cir. 1977)). The IJ was not required to obtain a
mental health evaluation to determine that Salgado was
competent. See M-A-M-, 25 I. & N. Dec at 481 (noting that
an IJ can order a mental evaluation when determining
competency); see Mejia, 868 F.3d at 1121. There was no
abuse of discretion here.
Further, even though safeguards are only required when
an IJ concludes an applicant is incompetent, Salgado was
nevertheless afforded the very safeguards contemplated by
M-A-M-—the opportunity to consult with his attorney and to
examine witnesses and present evidence. See M-A-M-, 25 I.
& N. Dec. at 481–83 (noting that an IJ can, among other
things, modify the questioning to make it easier, provide
counsel, or allow someone to appear on the person’s behalf
as safeguards for a person who is determined to be mentally
incompetent); Calderon-Rodriguez, 878 F.3d at 1182
(“Under Matter of M-A-M-, if there are indicia of
incompetence . . . the Immigration Judge must make further
inquiry to determine whether the alien is competent for
purposes of immigration proceedings.”) (internal citation
and quotation marks omitted); Mejia, 868 F.3d at 1121 (“If
the IJ determines that the applicant is incompetent, the IJ
must employ procedural safeguards and ‘articulate his or her
reasoning’ for doing so.”) (quoting M-A-M-, 25 I. & N. Dec.
at 483). The IJ and the BIA did not err.
14 SALGADO V. SESSIONS
IV
Our decision is reinforced by the fact that Salgado’s
inability to recall specific addresses was not the basis for the
IJ’s decision. The IJ, in his discretion, determined that
Salgado’s negative attributes outweighed any in favor of
cancellation of removal, stating, “there is very limited
evidence about what type of hardships or difficulties the
respondent would face and the family would face if
[Salgado] is removed to Mexico.” See 8 U.S.C. § 1229b(a).
Salgado does not, because he cannot, appeal that decision.
See 8 U.S.C. § 1252(a)(2)(B)(i); Romero-Torres v. Ashcroft,
327 F.3d 887, 892 (9th Cir. 2003) (“We lack jurisdiction to
review the BIA’s discretionary determination that an alien
failed to satisfy the ‘exceptional and extremely unusual
hardship’ requirement for cancellation of removal.”). In
making this ruling, the IJ assumed arguendo that Salgado
was eligible for cancellation of removal, even though the
Government argued that he had abandoned his U.S.
residence. Thus, there is no indication that a better recall by
Salgado of certain details would have changed the result
here. Any error—and we find none—was harmless.
V
We hold that alleged poor memory without some
credible evidence of an inability to comprehend or
meaningfully participate in the proceedings does not
constitute indicia of incompetency. The standard for mental
incompetency as set by the BIA in M-A-M-, and endorsed by
our court in Calderon-Rodriguez and Mejia, is a stringent
one. 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
SALGADO V. SESSIONS 15
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, there was no evidence—either medical or
through Salgado’s responses at the hearing—that Salgado
did not comprehend the nature and object of the proceedings.
Salgado was represented by counsel, and there is no
evidence that he was unable meaningfully to assist counsel’s
defense efforts. The IJ did not err by denying Salgado’s
request for a continuance for a mental health evaluation. In
summary, the BIA was correct to conclude that Salgado did
not show indicia of incompetency.
PETITION DENIED.