Mohammed Abdelsalam v. Merrick Garland ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 15 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MOHAMMED ALSAYED No. 19-72018
ABDELSALAM, AKA Mohammed
Youssef Abdelsalim, Agency No. A208-954-600
Petitioner,
MEMORANDUM*
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
MOHAMMED AL SAYED, No. 20-70580
Petitioner, Agency No. A208-954-600
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted June 10, 2021
Pasadena, California
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Before: MURGUIA and BADE, Circuit Judges, and MOLLOY,** District Judge.
Concurrence by Judge MOLLOY
Mohammed Alsayed Abdelsalam petitions for review of the Board of
Immigration Appeals’ (BIA) decisions affirming his order of removal and denying
his motion to reopen. Exercising jurisdiction pursuant to 8 U.S.C. § 1252, we deny
the petition in part and dismiss it in part.
1. The IJ and the BIA did not abuse their discretion by declining to order
a competency evaluation. 1 “[I]f an applicant shows ‘indicia of incompetency,’ the
IJ has an independent duty to determine whether the applicant is competent.”
Mejia v. Sessions, 868 F.3d 1118, 1121 (9th Cir. 2017) (citation omitted). Here,
Abdelsalam showed no indicia of incompetency before the IJ. Although
**
The Honorable Donald W. Molloy, United States District Judge for
the District of Montana, sitting by designation.
1
Abdelsalam asserts that the BIA committed a “due process violation”
by failing to “investigate and remand, if necessary, the mental health matter” he
raised in his pro se motion. The Fifth Amendment’s Due Process Clause requires
that the agency “meet traditional standards of fundamental fairness in determining
whether an alien is competent to participate in immigration proceedings.” In re
M-A-M-, 25 I. & N. Dec. 474, 479 (BIA 2011). Abdelsalam argues that the IJ and
the BIA failed to follow “In re M-A-M-’s rigorous procedural requirements,” Mejia
v. Sessions, 868 F.3d 1118, 1222 (9th Cir. 2017), but not that these requirements
are inadequate to protect his due process rights. See Barron v. Ashcroft, 358 F.3d
674, 678 (9th Cir. 2004) (recognizing due process claims are exempt from
exhaustion requirements “only if they involve more than ‘mere procedural error’
that an administrative tribunal could remedy” (citation omitted)). Thus, here,
“[w]e review for abuse of discretion whether the [agency] clearly departs from its
own standards.” Mejia, 868 F.3d at 1121.
2
Abdelsalam argues that he “seem[ed] disoriented and confused” during his hearing,
he gave many pages of coherent testimony and “did not show an inability to
answer questions,” “a high level of distraction,” or “an inability to stay on topic.”
Salgado v. Sessions, 889 F.3d 982, 988 (9th Cir. 2018); cf. id. (explaining that “the
mere inability to remember certain events and give certain testimony does not
amount to mental incompetency”). Moreover, his statements that he was “sick”
during a previous hearing and that he incurred “injuries” during his travels fall
short of indicia of incompetency. See id. at 984–85 (holding an IJ was not required
to conduct a competency inquiry after a petitioner stated that “he had been
involved in a small car accident a week before that was causing him memory
loss”).
Likewise, given the lack of any indicia of incompetency in the record before
the IJ and that Abdelsalam was represented by an attorney before the BIA, the BIA
did not abuse its discretion by declining to order a competency evaluation based on
Abdelsalam’s bare, uncorroborated assertions in a pro se filing that he was “on
anti-psychotic[] medication” and, “if unrepresented[,] definitely is a member of the
class certified in Franco-Gonzalez v. Holder, [No. CV-10-02211 DMG DTBX,
2014 WL 5475097, at *3 (C.D. Cal. Oct. 29, 2014)],” or based on the deficiencies
in his pro se motion to reopen. See Tadevosyan v. Holder, 743 F.3d 1250, 1252–
53 (9th Cir. 2014) (explaining that on abuse-of-discretion review we simply ask
3
whether the BIA “act[ed] arbitrarily, irrationally, or contrary to the law, [or]
faile[d] to provide a reasoned explanation for its actions.” (citation and quotation
marks omitted)).
Abdelsalam also asserts that the Department of Homeland Security “was in
possession of materials relevant to [his] mental competency” and failed to disclose
those materials as required under 8 C.F.R. § 1240.2(a). Although “DHS has an
obligation to provide the court with relevant materials in its possession that would
inform the court about [Abdelsalam’s] mental competency,” In re M-A-M-, 25 I. &
N. Dec. 474, 480 (BIA 2011), Abdelsalam did not raise this argument before the
BIA. This argument is therefore unexhausted, and we do not have jurisdiction to
consider it.2 See Sola v. Holder, 720 F.3d 1134, 1135 (9th Cir. 2013) (“A
petitioner’s failure to raise an issue before the BIA generally constitutes a failure to
exhaust, thus depriving this court of jurisdiction to consider the issue.”).
2. Abdelsalam argues that the BIA abused its discretion by affirming the
IJ’s finding that his conviction under California Penal Code § 422(a) was for a
particularly serious crime (PSC). He asserts that the agency erroneously relied on
evidence of his post-conviction conduct, but the IJ properly considered this
2
Abdelsalam indicates that he has filed a motion to reopen, currently
pending before the BIA, in which he asserts that his attorney ineffectively failed to
raise several of the arguments he now raises for the first time in his petition for
review. However, his arguments to this court regarding ineffective assistance of
counsel are unexhausted and we do not consider them. Sola, 720 F.3d at 1135.
4
evidence for impeachment, not to determine whether his conviction was for a PSC.
Abdelsalam also argues that this evidence was unreliable, but the IJ applied the
appropriate legal standards in his analysis, and we “may not reweigh the
evidence.” Avendano-Hernandez v. Lynch, 800 F.3d 1072, 1077 (9th Cir. 2015).
Moreover, Abdelsalam’s arguments that the agency should have considered
mental health evidence as part of its PSC analysis3 and that the IJ failed to consider
the length of his sentence are unexhausted, and we do not consider them. Sola,
720 F.3d at 1135.
3. Abdelsalam argues that the agency erred by “[r]elying solely on
information contained in a previously overturned decision” to deny his Convention
Against Torture (CAT) claim, that its denial of the CAT claim violated the doctrine
of issue preclusion, and that the agency failed to consider his “mental health
problems” in denying CAT relief. These arguments are unexhausted, and we do
not consider them. Id. He also argues that the record demonstrates that he will be
tortured if he returns to Egypt. However, the IJ found that Abdelsalam failed to
demonstrate a likelihood of torture because the beating he described did not rise to
the level of torture, and Abdelsalam did not demonstrate a likelihood of future
torture in light of documentary evidence. Nothing in the record compels a contrary
3
Abdelsalam also argues that the BIA should have considered his
mental health in its PSC analysis sua sponte, but he cites no authority indicating
that the BIA was required to do so.
5
conclusion. See Lolong v. Gonzales, 484 F.3d 1173, 1181 (9th Cir. 2007) (en
banc).
4. The BIA did not abuse its discretion by denying Abdelsalam’s
November 2019 motion to reopen. A motion to reopen “must be filed no later than
90 days after the date on which the final administrative decision was rendered in
the proceeding sought to be reopened.” 8 C.F.R. § 1003.2(c)(2). Abdelsalam’s
motion to reopen was untimely, and he concedes that “there was no change in the
facts,” that would excuse his untimely filing. See 8 C.F.R. § 1003.2(c)(3)(ii).
Additionally, as discussed above, the BIA was not required sua sponte to reopen
proceedings and remand for competency evaluation based on deficiencies in his
pro se motion because those deficiencies were not indicia of incompetency.
DENIED IN PART AND DISMISSED IN PART.
6
FILED
JUL 15 2021
Abdelsalam v. Garland, No. 19-72018
MOLLOY, District Judge, concurring: MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
While I agree with the panel that there is no case that specifically holds that
Abdelsalam’s pro se indictment of his own competency was sufficient to trigger
the BIA’s duty to remand for further inquiry, I am troubled by that result here for
several reasons. First, it defies logic to require an individual to competently decry
his or her own competence. See Joseph Heller, Catch-22 46 (1961) (“If he flew
[more bombing missions], he was crazy and didn’t have to; but if he didn’t want to,
he was sane and had to.”). Abdelsalam’s pro se request for an inquiry implicitly
acknowledges his uncertainty about his own mental health and the impact it may
have on his case. Moreover, his insistence in filing pro se documents despite his
representation by counsel casts some doubt on his attorney’s ability to assist him.
That doubt is only exacerbated when one considers the fact that counsel drafted his
brief to the BIA prior to reviewing the IJ decision on appeal and the fact that
Abdelsalam was not represented at every IJ hearing.
Second, while the record before the IJ contained only individual instances of
concerning but explainable conduct or comments, that record takes on a different
tone once the specter of mental illness is formally raised. Looking to the facts of
his underlying criminal conviction, Abdelsalam hid in the trunk of his ex-fiancée’s
car, jumped out at her, and chased her down the street. And, during his hearings in
front of the IJ, Abdelsalam made strange comments, such as claiming that his
1
phone contained a letter from “Ali” stating that “I will give you $20,000 if you do
not inform the immigration authorities about your case.” While the IJ did not have
the benefit of a larger mental health concern in considering these facts, the BIA
did.
Finally, and probably the most concerning, is Abdelsalam’s assertion that he
was undergoing mental health treatment while in the custody of the Department of
Homeland Security (“DHS”). His pro se filing states: “Petitioner at this time is,
under care of a psychiatric [sic] while detained and on anti-psychotic, medication.”
“The DHS has an obligation to provide the court with relevant materials in its
possession that would inform the court about the respondent’s mental
competency.” M-A-M-, 25 I. & N. Dec. 474, 480 (BIA 2011) (citing 8 C.F.R.
§ 1240.2(a)); see also Calderon-Rodriguez v. Sessions, 878 F.3d 1179, 1183 (9th
Cir. 2018) (holding that IJ failed to “adequately ensure that DHS complied” with
its obligation to provide mental health records). It therefore seems it was
incumbent on the BIA, with the knowledge it had, to send the case back to the IJ to
review mental health records held by the DHS.
Ultimately, the watchword of the panel’s decision in this case is
“unexhausted.” One can only wonder how different the record may have been if
an inquiry had been made into Abdelsalam’s competence while the case was still
before the agency.
2