Beatriz Corona Chavez v. William Barr ( 2019 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS NOV 27 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
BEATRIZ CORONA CHAVEZ, AKA No. 14-70746
Beatrice Adriana Corona,
Agency No. A205-387-121
Petitioner,
v. MEMORANDUM*
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted November 12, 2019**
Pasadena, California
Before: FERNANDEZ and M. SMITH, Circuit Judges, and OTAKE,*** District
Judge.
Beatriz Corona Chavez, a native and citizen of Mexico, petitions for review
of the Board of Immigration Appeals’ (“BIA”) dismissal of her appeal from the
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Jill Otake, United States District Judge for the District
of Hawaii, sitting by designation.
Immigration Judge’s (“IJ”) denial of her requests for withholding of removal as
well as deferred removal pursuant to the Convention Against Torture. She also
challenges the BIA’s failure to remand her case to an IJ for a competency hearing
after the Department of Homeland Security (“DHS”) notified the BIA of her
diagnosis for adjustment disorder with anxiety and her possible class membership
in the Franco-Gonzalez v. Holder, No. CV 10-02211 DMG (DTBx) (C.D. Cal.)
litigation. We grant the petition, vacate the BIA’s decision, and remand.
We have jurisdiction to address the competency issues raised in this appeal
because they are purely legal, see 8 U.S.C. § 1252(a)(2)(D), and are therefore
excepted from 8 U.S.C. § 1252(a)(2)(C).
The BIA erred by serving as a fact finder and effectively determining that
Corona Chavez was competent to represent herself on appeal. The BIA had no
findings to review regarding Corona Chavez’s competency to represent herself.
Moreover, DHS’s notice sufficiently alerted the BIA that she may be mentally
incompetent to represent herself during the appeal. To the extent that the BIA
relied on the absence of additional evidence accompanying the DHS notice, it
should have remanded to the IJ with instructions to receive information from DHS
concerning Corona Chavez’s mental competency. See Calderon-Rodriguez v.
Sessions, 878 F.3d 1179, 1183 (9th Cir. 2018). And because the BIA could not
make findings regarding Corona Chavez’s competency, it should have remanded to
2 14-70746
the IJ to assess her competency under the framework articulated in Matter of M-A-
M-, 25 I&N Dec. 474 (BIA 2011).
We vacate the BIA’s decision and remand to the BIA with instructions to
remand to the IJ for an assessment about Corona Chavez’s competency to
represent herself in her BIA appeal and whether she should be provided with a
qualified representative in accordance with Franco-Gonzalez.
Petition GRANTED, VACATED, and REMANDED.
3 14-70746
FILED
NOV 27 2019
MOLLY C. DWYER, CLERK
Corona Chavez v. Barr, No. 14-70746 U.S. COURT OF APPEALS
FERNANDEZ, Circuit Judge, concurring in part and dissenting in part:
I fully agree with the majority that the petition should be granted. However,
in my view it is not clear that either the regulation,1 the case law,2 or the
Implementation Order3 requires that the IJ make findings regarding whether
Corona is competent to represent herself before the BIA on appeal.4 I would
simply remand the case to the BIA, rather than directing that it further remand to
the IJ. See Recinos De Leon v. Gonzales, 400 F.3d 1185, 1189 (9th Cir. 2005)
Thus, I respectfully concur in part and dissent in part.
1
See 8 C.F.R. § 1003.1(b)(3), (d)(3)–(4).
2
See In re M-A-M-, 25 I. & N. Dec. 474, 478, 484 (B.I.A. 2011).
3
See Order Further Implementing This Court’s Permanent Injunction,
Franco-Gonzalez v. Holder, No. CV-10-02211 DMG (DTBx), 2014 WL 5475097,
at *3, *10 (C.D. Cal. Oct. 29, 2014); see also Partial Judgment and Permanent
Injunction, Franco-Gonzalez v. Holder, No. CV-10-02211 DMG (DTBX) 2013
WL 8115423 (C.D. Cal. Apr. 23, 2013).
4
Corona’s prior representation before the IJ is not in question here.