Paul De La Cruz Hernandez v. Merrick Garland ( 2023 )

NOT FOR PUBLICATION FILED
MAR 29 2023
UNITED STATES COURT OF APPEALS
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
PAUL G. DE LA CRUZ HERNANDEZ, No. 19-73119
Petitioner, Agency No. A215-680-409
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted March 16, 2023
Pasadena, California
Before: BRESS and MENDOZA, Circuit Judges, and ERICKSEN,** District
Judge.
Paul G. de la Cruz Hernandez, a native and citizen of Mexico, petitions for
review of a Board of Immigration Appeals (“BIA”) denial of his motion to
reconsider the BIA’s decision affirming the immigration judge’s (“IJ”) decision
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Joan N. Ericksen, United States District Judge for the
District of Minnesota, sitting by designation.
denying him asylum, withholding of removal, and relief under the Convention
Against Torture (“CAT”). This court “review[s] the denial of a motion to
reconsider for abuse of discretion.” B.R. v. Garland, 26 F.4th 827, 835 (9th Cir.
2022). We have jurisdiction under 8 U.S.C. § 1252, and we dismiss in part and
deny in part.
When Hernandez moved the BIA to reconsider its affirmance of the IJ’s
decision, he alleged only that “an error occurred when [he] was wrongly denied
protection.” The BIA denied his motion because Hernandez failed to “specify the
error of fact or law in the previous [BIA] decision.” To the extent Hernandez has
not waived any challenge to the BIA’s denial of his motion to reconsider by failing
to argue it in his opening brief, see Lopez-Vasquez v. Holder, 706 F.3d 1072, 1079
(9th Cir. 2013), any challenge to the denial of reconsideration is without merit.
Hernandez in his motion for reconsideration failed to identify any specific error in
the underlying BIA decision. See 8 U.S.C. § 1229a(c)(6)(C) (motions for
reconsideration “shall specify the errors of law or fact in the previous order and
shall be supported by pertinent authority”).
We also reject Hernandez’s argument that the BIA abused its discretion by
failing to remand his case to the IJ for a competency determination. First,
Hernandez did not raise any concerns about his competency to the BIA. He
therefore failed to exhaust his administrative remedies, and we lack jurisdiction to
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consider this claim. Zhang v. Ashcroft, 388 F.3d 713, 721 (9th Cir. 2004) (per
curiam) (“[A] petitioner’s failure to raise an issue to the BIA constitutes a failure to
exhaust, depriving this court of jurisdiction.”). Although we are sensitive to the
unique burdens often placed on pro se litigants, we decline to find that the BIA
abused its discretion here. Hernandez made no mention of his competency in his
motion to reconsider, so the BIA was not “sufficiently on notice so that it ‘had an
opportunity to pass on this issue.’” Bare v. Barr, 975 F.3d 952, 960 (9th Cir.
2020) (quoting Zhang, 388 F.3d at 721).
Even if we were able to recognize an exception to the usual exhaustion rules,
Hernandez has not demonstrated circumstances to justify doing so. “[T]he test for
determining whether [an applicant] 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.” Matter of M-A-M-, 25 I. & N.
Dec. 474, 479 (B.I.A. 2011). If an applicant shows indicia of incompetency, the IJ
has a duty to determine whether, and articulate why, the applicant is competent.
Campos Mejia v. Sessions, 868 F.3d 1118, 1121 (9th Cir. 2017). Hernandez, now
proceeding with counsel, argues that three pieces of record evidence showed the
requisite indicia of incompetence: (1) Hernandez’s detention intake paperwork
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showing a diagnosis of anxiety and stress, (2) his testimony that he was prescribed
Ritalin, and (3) his testimony that he experienced depression after his grandfather’s
death in 2003. However, the evidence as a whole does not suggest that Hernandez
was incompetent at the time of his IJ proceedings. Hernandez tried to obtain an
attorney—though unsuccessfully—and presented evidence, including a statement
about his life, country reports, and news articles. Accordingly, Hernandez has not
demonstrated he was incompetent under M-A-M- at the time of his IJ proceedings,
such that we could excuse the failure to exhaust these issues before the BIA.
PETITION FOR REVIEW DISMISSED in part; DENIED in part.
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