Veronica Rico-Landaverde v. Eric Holder, Jr.

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT APR 20 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
VERONICA FLOR RICO- No. 14-70779
LANDAVERDE,
Agency No. A076-635-677
Petitioner,
v. MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted April 8, 2015
Pasadena, California
Before: SILVERMAN and BEA, Circuit Judges and DONATO,** District Judge.
Veronica Flor Rico-Landaverde petitions for review of the Board of
Immigration Appeal’s dismissal of her appeal from the Immigration Judge’s final
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable James Donato, District Judge for the U.S. District
Court for the Northern District of California, sitting by designation.
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order of removal. Except as noted below, we have jurisdiction pursuant to 8
U.S.C. § 1252. We DISMISS IN PART and DENY IN PART the petition.
The court lacks jurisdiction to consider Rico-Landaverde’s argument that the
IJ erred in finding her asylum application untimely. Rico-Landaverde argues that
the IJ should have considered whether her depression prevented her from
complying with the one-year deadline, but she did not raise this argument before
the BIA.1 8 U.S.C. § 1252(d)(1); Barron v. Ashcroft, 358 F.3d 674, 677-78 (9th
Cir. 2004). The court also lacks jurisdiction to consider the unexhausted question
of whether Rico-Landaverde’s due process rights were violated when the IJ failed
to inform her of her apparent eligibility for a U Visa.2 Brezilien v. Holder, 569
F.3d 403, 412 (9th Cir. 2009); Tall v. Mukasey, 517 F.3d 1115, 1120 (9th Cir.
2008); Barron, 358 F.3d at 678. These aspects of the petition are dismissed.
1
The IJ denied Rico-Landaverde’s applications for withholding of removal
and protection under the Convention Against Torture on the merits, but Rico-
Landaverde explicitly abandoned those applications in her petition for review.
2
United States v. Ubaldo-Figueroa, 364 F.3d 1042 (9th Cir. 2004), upon
which Rico-Landaverde relies to contend the exhaustion requirement does not
apply to failure-to-inform challenges on direct review of a removal order, is
inapposite. That case addresses the exhaustion requirement of 8 U.S.C. § 1326(d),
which allows for collateral review of a deportation order as a defense to an illegal
reentry charge. Id. at 1048-50.
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Rico-Landaverde’s argument that her conviction for endangerment under
A.R.S. § 13-1201 is not a crime involving moral turpitude, rendering her
removable, is foreclosed by Leal v. Holder, 771 F.3d 1140 (9th Cir. 2014). Even if
her conviction were not a CIMT, Rico-Landaverde is removable because she is
present in the United States without having been admitted or paroled after
inspection. 8 U.S.C. §§ 1182(a)(6)(A)(1), 1227(a)(1). She does not challenge the
IJ’s finding of removability on that basis. This aspect of her petition is therefore
denied.
Finally, the court also denies Rico-Landaverde’s petition to the extent it
argues the IJ improperly applied Matter of M-A-M-, 25 I. & N. Dec. 474 (BIA
2011). The record before the IJ showed nothing more than that Rico-Landaverde
had been treated for depression in the past. Even assuming for the sake of
argument that this history should have triggered further inquiry into Rico-
Landaverde’s mental competency under M-A-M-, the IJ’s explicit findings that
Rico-Landaverde was competent were amply based upon the record evidence as
well as Rico-Landaverde’s appropriate behavior in court, her ability to file a pro se
asylum application and call the appropriate witnesses to testify, and her lucid and
appropriate interactions with the IJ over the course of five hearings that spanned
three-and-a-half months. While we stress that M-A-M-’s “further inquiry”
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requirement no doubt requires IJs to undertake more than routine questioning
before making a competency finding when faced with concrete indicia of
incompetency, we conclude that under the particular facts of this case, the IJ’s
inquiry into Rico-Landaverde’s competency was sufficient.
We also note that Rico-Landaverde does not argue that she was actually
incompetent, and we further note that she opposed amici’s recommendation that
we remand her petition so that she could take advantage of the unarguably much
stronger protections provided to supposedly pro se mentally ill detainee
classmembers under the permanent injunction in Franco-Gonzalez v. Holder, Case
No. CV-10-02211 DMG (DTBx), 2014 WL 5475097 (C.D. Cal. Oct. 29, 2014).
PETITION FOR REVIEW DISMISSED IN PART; DENIED IN PART.
FILED
Rico-Landaverde v Eric Holder 14-70779 APR 20 2015
MOLLY C. DWYER, CLERK
Bea, J., concurring in part and dissenting in part. U.S. COURT OF APPEALS
I agree with the majority that we lack jurisdiction over petitioner Veronica
Flor Rico-Landaverde’s claim that the IJ erred in finding her application for
asylum untimely. And I also agree that our caselaw forecloses her argument that
her conviction for endangerment is not a crime involving moral turpitude. But
because I conclude that the IJ did not correctly apply the framework for
determining competency set out in Matter of M-A-M-, 25 I. & N. Dec. 474 (BIA
2011), I think we should send the case back so the agency can apply its own
binding precedent. And so, I respectfully dissent.
In Matter of M-A-M-, the Board of Immigration Appeals (BIA) announced
the test for determining whether an alien is competent and set out a legal
framework for making that determination. 25 I. & N. Dec. at 479–484. The BIA
summarized its decision as follows:
[I]f there are no indicia of incompetency in an alien’s case, no further
inquiry regarding competency is required. 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. 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. If the alien lacks sufficient competency to
proceed, the Immigration Judge will evaluate and apply appropriate
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safeguards. The Immigration Judge must articulate the rationale for his
or her decision.
Id. at 484.
Under the framework articulated in Matter of M-A-M-, respondents 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.
But where indicia of incompetency exist, the IJ “must make further inquiry to
determine whether the alien is competent for purposes of immigration
proceedings.” Matter of M-A-M-, 25 I. & N. Dec. at 484 (emphasis added).
Here, there were sufficient indicia of incompetency before the IJ. Prior to
Rico’s hearing, counsel for the Executive Office of Immigration Review (EOIR)
submitted to the IJ a notice of Rico’s possible class membership in an action
pending in the Central District of California challenging the standards for
competency in immigration courts. EOIR informed the IJ Rico “ha[d] been
diagnosed with Depression (Adjustment Disorder with Anxiety)” and that she may
be “entitled to certain procedural protections” if she remains unrepresented. The
notice then reminded the IJ that he should follow the Matter of M-A-M- framework
to determine whether Rico was indeed competent. Aside from the class notice, the
record included a probation-violation report, which noted that Rico “has physical
and mental health concerns” and “admits to suffering from mental health issues
and states she has thought about harming herself recently.” The record also
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reflects more oblique indications of mental issues, such as her recurring problems
with alcohol abuse, her multiple arrests for drunk driving, and her difficulty
providing for herself and her eight American-citizen children. Taken together, I
believe these indicia were sufficient to trigger the IJ’s duty under Matter of
M-A-M- to inquire further into Rico’s competency. That the IJ did not do.
The majority and I agree that Matter of M-A-M-’s “further inquiry” requires
IJs to undertake more than routine questioning before making a competency
finding when faced with indicia of competency. But I cannot agree that the IJ’s
questions to Rico were anything more than business as usual. At no time did the IJ
inquire into Rico’s mental state, her mental-illness diagnosis, her problems with
substance abuse, her treatment or any medications she was taking, or whether she
was being treated while in detention. See id. at 480 (“The inquiries made should
include questions about . . . the respondent’s state of mind.”); see also id. at
480–81 (suggesting measures that an IJ could take to assess alien’s competency,
including “ask[ing] the respondent whether he or she currently takes or has taken
medication to treat a mental illness and what the purpose and effects of that
medication are”).
Because the IJ failed to make the further inquiry required by Matter of
M-A-M-, I would remand to the agency so that it can properly apply its own
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precedent in the first instance. See Azanor v. Ashcroft, 364 F.3d 1013, 1020–21
(9th Cir. 2004). I respectfully dissent.
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