Zalena Magaeva v. Merrick Garland ( 2022 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 11 2022
MOLLY C. DWYER, CLERK
FOR THE NINTH CIRCUIT U.S. COURT OF APPEALS
ZALENA MAGAEVA, No. 20-70804
Petitioner, Agency No. A201-683-166
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted November 8, 2021**
Pasadena, California
Before: COLLINS and LEE, Circuit Judges, and BAKER,*** Judge.
Petitioner Zalena Magaeva, a citizen of Russia, alleges due process
violations in connection with proceedings before the Board of Immigration
Appeals (“BIA”) and an Immigration Judge (“IJ”), both of whom rejected her
claims for asylum, withholding of removal, and protection under the Convention
*
This disposition is not appropriate for publication and is not precedent except as
provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes that this case is suitable for decision without
oral argument. See FED. R. APP. P. 34(a)(2)(C).
***
The Honorable M. Miller Baker, Judge for the United States Court of
International Trade, sitting by designation.
Against Torture. Magaeva argues that the IJ should have conducted an inquiry into
her mental competency and that the IJ failed to obtain a knowing, voluntary, and
intelligent waiver of counsel. We lack jurisdiction to consider her waiver-of-
counsel claim because it was not raised before the BIA. We have jurisdiction to
consider her competency claim, but we deny the petition.
1. Magaeva first argues that the IJ was required to conduct an inquiry into
her mental competency because indicia of incompetency were present at the time
of her hearings.1 These alleged indicia include comments she made to the IJ, as
well as medical records submitted to the IJ. We reject this contention.
IJs are only required to assess an alien’s competency when “indicia of
mental incompetency” are present. Matter of M-A-M-, 25 I. & N. Dec. 474, 477
(BIA 2011). Such indicia are present when there is “good cause to believe that the
alien lacks sufficient competency to proceed without safeguards,” such as when the
alien at immigration hearings shows an “inability to understand and respond to
questions, the inability to stay on topic, or a high level of distraction,” or when the
record contains “evidence of mental illness or incompetency.” Id. at 479.
Conversely, an alien is competent when she has “a rational and factual
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The Government contends that Magaeva waived this competency claim by failing
to exhaust it before the BIA. However, Magaeva did raise the incompetency issue
before the BIA, arguing that she “wasn’t feeling well” the day of her hearing and
supplying details in support of that assertion.
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understanding of the nature and object of the proceedings,” the ability to consult
with an attorney or representative, if applicable, and a “reasonable opportunity to
examine and present evidence and cross-examine witnesses.” Id. at 484. This
court reviews the agency’s implementation of the Matter of M-A-M- incompetency
standard for abuse of discretion. See Mejia v. Sessions, 868 F.3d 1118, 1121 (9th
Cir. 2017).
Here, the BIA did not abuse its discretion in concluding that Magaeva had
failed to show any prejudicial error on this score. Despite Magaeva’s history of
anxiety and depression, the hearing transcripts indicate that she was able to fully
understand and follow the proceedings. She confirmed to the IJ that she
understood the hearing process and her rights therein; she actively participated in
the hearing process, submitting her medical records and other reports into
evidence; and she responded promptly and logically to questions from the IJ via
the interpreter. Although Magaeva’s medical records disclose past serious
difficulties, the detention medical facility repeatedly categorized her as “low risk”
or “not a risk” in psychiatric evaluations and described her as coherent and aware
of her surroundings.
2. Magaeva also argues that her waiver of the right to counsel was not
knowing, intelligent, and voluntary. The Government contends that this court
lacks jurisdiction to hear Magaeva’s waiver-of-counsel claim because she failed to
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exhaust it before the BIA. By statute, courts may review final orders of removal
“only if the alien has exhausted all administrative remedies available to the alien as
of right.” 8 U.S.C. § 1252(d)(1). Neither Magaeva’s submissions to the BIA nor
the BIA decision address the issue of waiver of counsel. In a letter to the BIA,
Magaeva remarks that one of her fellow detainees hired a lawyer and got out
quickly, apparently wishing she had done the same: “I realized that if you don’t
have money you will stay in prison . . . . I believed in my truth and though[t] that I
would not require a lawyer in a court, yet it didn’t happen.” But this is not an
argument that she had not waived counsel voluntarily. At most, it is an expression
of regret for the choice she made to proceed alone. Thus, Magaeva’s waiver-of-
counsel claim is being raised for the first time in her petition for review, which
places it beyond the jurisdiction of this court.
The petition for review is DENIED.
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