Marlon Sibrian v. Merrick Garland

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 11 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARLON RUDY SIBRIAN, AKA Jairo No. 18-71993
Artega, AKA Marlin Rudy Sibrian, AKA
Marlon Sibrian, AKA Marlon R. Sibrian, Agency No. A095-721-224
AKA Marlon Willy Sibrian, AKA Skinny
Sibrian,
MEMORANDUM*
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted March 18, 2022
San Francisco, California
Before: CHRISTEN and BRESS, Circuit Judges, and LYNN,** District Judge.
Partial Dissent by Judge BRESS
Petitioner Marlon Rudy Sibrian (“Sibrian”), a citizen of El Salvador, seeks
review of a Board of Immigration Appeals (“BIA”) decision affirming the order of
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Barbara M. G. Lynn, Chief United States District
Judge for the Northern District of Texas, sitting by designation.
an Immigration Judge (“IJ”) finding him ineligible for cancellation of removal and
denying his applications for asylum, withholding of removal, and relief under the
Convention Against Torture (“CAT”). We review for substantial evidence and
may grant relief only if the record compels a contrary conclusion. Yali Wang v.
Sessions, 861 F.3d 1003, 1007 (9th Cir. 2017). We have jurisdiction under
8 U.S.C. § 1252, and we deny the petition. Because the parties are familiar with
the facts, we do not recount them here.
In his petition in this court, Sibrian argued that the Department of Homeland
Security (“DHS”) failed to identify indicia of mental illness or share information
about his mental illness with the IJ, in alleged violation of the injunction in
Franco-Gonzalez v. Holder, No. CV–10–02211 DMG (DTBx), 2014 WL 5475097(C.D. Cal. Oct. 29, 2014). The government’s response suggested that Sibrian
failed to exhaust his due process claim. The government’s contention runs
contrary to the rationale of Franco-Gonzalez, which does not rely on potentially
mentally ill detainees to raise their own mental health concerns, but instead
requires DHS to routinely screen detainees for mental illness.
After the government disclosed during oral argument that it believed it had
complied with Franco-Gonzalez, we requested that the government provide
supplemental excerpts of the record demonstrating its compliance, and it did so.
We have carefully reviewed the government’s filing and conclude there is no basis
2
to believe the government failed to adhere to Franco-Gonzalez, or that Sibrian
suffered from sufficiently severe mental illness. We do not now decide how an
exhaustion analysis could differ in a future situation in which a petitioner suffers
from mental illness and the government fails to comply with Franco-Gonzalez.
Because the record in this case shows that Sibrian’s mental health issues did not go
unaddressed at the administrative level and the Franco-Gonzalez screening process
functioned as intended, Sibrian’s claims relating to his mental health are denied.1
The IJ’s decision to deny Sibrian’s applications for asylum, withholding of
removal, and relief under CAT is supported by substantial evidence.
In addition, Sibrian petitioned for relief from the IJ’s order finding him
ineligible for cancellation of removal. Sibrian’s appeal is foreclosed by this
Court’s decision in Silva v. Garland, 993 F.3d 705, 717 (9th Cir. 2021), which
affirmed that a violation of California Penal Code § 484(a) constitutes a crime
involving moral turpitude, rendering Sibrian ineligible for cancellation of removal
based on his two prior convictions for violating California Penal Code § 484(a).
See 8 U.S.C. § 1229b(a); 8 U.S.C. § 1227(a)(2).
PETITION FOR REVIEW DENIED.
1
In light of our request for the government to provide supplemental excerpts of the
record demonstrating the government’s compliance with Franco-Gonzalez, we deny
as moot the government’s motion to strike documents attached to Sibrian’s pro se
reply on the grounds that the documents were not part of the administrative record.
3
FILED
AUG 11 2022
Sibrian v. Garland, No. 18-71993
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
BRESS, Circuit Judge, dissenting in part:
I part ways with the majority only as to Sibrian’s due process claim. Rather
than deny it, I would dismiss this aspect of the petition for lack of jurisdiction.
Under 8 U.S.C. § 1252(d), we lack jurisdiction over issues that a petitioner
did not exhaust before the agency. Barron v. Ashcroft, 358 F.3d 674, 677–78 (9th
Cir. 2004). A failure to exhaust may be excused only when resort to the agency
would have been futile. Sun v. Ashcroft, 370 F.3d 932, 942 (9th Cir. 2004). Here,
Sibrian did not raise before the IJ or BIA any claims relating to his alleged mental
illness. Even if there could be some circumstances in which a severely mentally ill
petitioner who did not receive the benefit of the injunction in Franco-Gonzalez v.
Holder, 2014 WL 5475097 (C.D. Cal. Oct. 29, 2014), may not be required to exhaust
issues of mental health before the agency, Sibrian has not demonstrated that he was
unable to raise competency issues before the IJ or BIA. Section 1252(d)’s
exhaustion requirement should therefore continue to apply. I would thus dismiss
Sibrian’s unexhausted due process challenge for lack of jurisdiction.