Edwin Campos Mejia v. Jefferson Sessions , 868 F.3d 1118 ( 2017 )


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  •                      FOR PUBLICATION
    UNITED STATES COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    EDWIN EDUARDO CAMPOS MEJIA,                       No. 15-70155
    Petitioner,
    Agency No.
    v.                           A071-583-259
    JEFFERSON B. SESSIONS III, Attorney
    General,                                            OPINION
    Respondent.
    On Petition for Review of an Order of the
    Board of Immigration Appeals
    Argued and Submitted June 9, 2017
    Pasadena, California
    Filed August 29, 2017
    Before: Susan P. Graber and Mary H. Murguia, Circuit
    Judges, and Edward J. Davila, * District Judge.
    Opinion by Judge Davila
    *
    The Honorable Edward J. Davila, United States District Judge for
    the Northern District of California, sitting by designation.
    2                  CAMPOS MEJIA V. SESSIONS
    SUMMARY **
    Immigration
    The panel granted Edwin Eduardo Campos Mejia’s
    petition for review of the Board of Immigration Appeals’
    decision dismissing his appeal from an immigration judge’s
    denial of his claims for asylum, withholding of removal, and
    relief under the Convention Against Torture, and concluding
    that remand to the immigration judge was not warranted for
    further consideration of Campos Mejia’s mental
    competency.
    The panel held that the immigration judge erred by
    failing to determine whether procedural safeguards were
    required after Campos Mejia showed signs of mental
    incompetency. The panel concluded that under In re
    M-A-M-, 25 I. & N. Dec. 474, 480 (BIA 2011), there were
    clear indicia of incompetency that triggered the immigration
    judge’s duty to explain whether Campos Mejia was
    competent and whether procedural safeguards were needed.
    The panel further held that the Board abused its
    discretion by failing to explain why it allowed the
    immigration judge to disregard In re M-A-M-’s rigorous
    procedural requirements. Accordingly, the panel remanded
    to the Board with instructions to remand to the immigration
    judge for a new hearing consistent with In re M-A-M-.
    **
    This summary constitutes no part of the opinion of the court. It
    has been prepared by court staff for the convenience of the reader.
    CAMPOS MEJIA V. SESSIONS                    3
    COUNSEL
    Matthew J. Smock (argued) and Amy J. Laurendeau,
    O’Melveny & Myers LLP, Newport Beach, California, for
    Petitioner.
    Sarah K. Pergolizzi (argued), Trial Attorney; Emily Anne
    Radford, Assistant Director; Chad A. Readler, Acting
    Assistant Attorney General; Office of Immigration
    Litigation, Civil Division, United States Department of
    Justice, Washington, D.C.; for Respondent.
    OPINION
    DAVILA, District Judge:
    Petitioner Edwin Eduardo Campos Mejia seeks review
    of the Board of Immigration Appeals’ (“BIA”) dismissal of
    his appeal from the immigration judge’s (“IJ”) denial of his
    claims for asylum, withholding of removal, and relief under
    the Convention Against Torture (“CAT”). Petitioner showed
    signs of mental incompetency during proceedings before the
    IJ. Petitioner argues that, under governing BIA precedent,
    these signs triggered the IJ’s duty to determine whether
    procedural safeguards were needed, but that the IJ failed to
    do so. We agree. Accordingly, we grant the petition and
    remand.
    BACKGROUND
    Petitioner, a native of Guatemala, entered the United
    States without inspection at some point between 1986 and
    1991. The Department of Homeland Security initiated
    removal proceedings in 2004 in a Notice to Appear.
    Petitioner admitted the factual allegations in the Notice, and
    4               CAMPOS MEJIA V. SESSIONS
    the IJ sustained the charge of removability. Petitioner’s case
    was administratively closed for most of the next six years
    while he served prison sentences for driving under the
    influence. The Department of Homeland Security moved to
    recalendar the case in December 2010.
    Petitioner first sought cancellation of removal under the
    Nicaraguan Adjustment and Central American Relief Act,
    but he withdrew his application because his criminal record
    disqualified him from relief. In October 2011, he filed a
    Form I-589 Application for Asylum and Withholding of
    Removal, seeking asylum under section 208 of the
    Immigration and Nationality Act (“INA”), 8 U.S.C. § 1158;
    withholding of removal under section 241(b)(3) of the INA,
    8 U.S.C. § 1231(b)(3); and deferral of removal under the
    CAT, 8 C.F.R. § 1208.16.
    Petitioner, assisted by counsel, presented evidence at
    three removal hearings. At the first, on June 25, 2012,
    Petitioner was examined by his counsel and by the IJ. He
    testified about the violence that he had experienced as a
    child, including witnessing the deaths of family members
    and others. During one conflict, he suffered a severe head
    injury and was knocked unconscious. He suffers from
    mental illness that stems from his childhood trauma, and
    since 2003 he has been treated with medication for major
    depression with psychotic features. He also has a history of
    alcohol abuse which, according to his medical records, is
    likely related to his mental illness. The IJ determined that
    testimony from Petitioner’s parents would be helpful, and he
    granted an eight-month continuance so that Petitioner could
    arrange for their appearance.
    At the second hearing, on February 14, 2013, the
    government cross-examined Petitioner. He testified about
    his criminal convictions, his prison sentences, his work and
    CAMPOS MEJIA V. SESSIONS                       5
    family history, his completion of alcohol abuse programs,
    his entry into the United States, and his parents’ return to
    Guatemala. He further testified that he was not taking his
    medication and that he was “not functioning quite well”
    because “[t]here’s an ongoing fight in, in between [his
    mind],” and that he felt a “very strong pressure inside [his]
    head.”
    At the final hearing, on June 20, 2013, Petitioner’s
    parents testified. His mother testified about his mental health
    issues, his medication, and his family situation. His father
    testified about Petitioner’s medical condition and about a
    fight between the father and a neighbor during a recent visit
    to Guatemala. Petitioner did not testify.
    On September 9, 2013, the IJ issued a written decision
    denying Petitioner’s application and ordering his removal.
    The IJ denied asylum and withholding of removal because
    he determined that Petitioner’s 2008 and 2010 DUI
    convictions were for “particularly serious crimes.” See
    8 U.S.C. §§ 1158(b)(2)(A)(ii), 1231(b)(3)(B)(ii) (providing
    that asylum relief and withholding of removal are not
    available “to an alien if the Attorney General determines that
    . . . the alien, having been convicted by a final judgment of a
    particularly serious crime, constitutes a danger to the
    community of the United States”). The IJ also denied relief
    under the CAT because Petitioner failed to show that he
    would likely be tortured by or with the acquiescence of the
    Guatemalan government. See Dhital v. Mukasey, 
    532 F.3d 1044
    , 1051 (9th Cir. 2008) (per curiam) (holding that a party
    seeking CAT relief must show that “it is more likely than not
    that the he or she will be tortured . . . by or at the instigation
    of or with the consent or acquiescence of a public official or
    other person acting in an official capacity” (internal
    quotation marks omitted) (citing 8 C.F.R. § 208.18(a)(1))).
    6               CAMPOS MEJIA V. SESSIONS
    Petitioner appealed to the BIA. On December 19, 2014,
    the BIA dismissed the appeal. It affirmed the IJ’s findings
    that Petitioner’s DUI convictions were for particularly
    serious crimes and that Petitioner had not shown that he
    would likely be tortured upon return to Guatemala. In
    addition, although “neither party . . . raised the issue of
    mental competence,” the BIA noted that Petitioner “was not
    taking his medication at the time of his hearing” and suffers
    from serious psychological problems. After a brief
    discussion, the BIA held that “we do not find remand
    warranted for further consideration of the respondent’s
    competency.”
    Petitioner timely petitioned for review.
    STANDARD OF REVIEW
    We review for abuse of discretion whether the BIA
    clearly departs from its own standards. Alphonsus v. Holder,
    
    705 F.3d 1031
    , 1044 (9th Cir. 2013).
    DISCUSSION
    Petitioner contends that the IJ erred by failing to
    determine whether procedural safeguards were required
    after Petitioner showed signs of mental incompetency. We
    agree.
    Under governing BIA precedent, if an applicant shows
    “indicia of incompetency,” the IJ has an independent duty to
    determine whether the applicant is competent. In re M-A-M-,
    25 I. & N. Dec. 474, 480 (B.I.A. 2011). Indicia can include
    “the inability to understand and respond to questions, the
    inability to stay on topic, or a high level of distraction,” as
    well as “evidence of mental illness.” 
    Id. at 479.
    After
    determining whether the applicant is competent, the IJ must
    CAMPOS MEJIA V. SESSIONS                     7
    “articulate that determination and his or her reasoning.” 
    Id. at 481.
    If the IJ determines that the applicant is incompetent,
    the IJ must employ procedural safeguards and “articulate his
    or her reasoning” for doing so. 
    Id. at 483.
    Here, there were clear indicia of Petitioner’s
    incompetency. He has a history of serious mental illness,
    including hallucinations, bipolar disorder, and major
    depression with psychotic features. During hearings before
    the IJ, Petitioner testified that he was not taking his
    medications and was feeling unwell. He said he was
    experiencing symptoms of mental illness and felt a “very
    strong pressure” in his head. He had difficulty following the
    IJ’s questions, and many of his responses were confused and
    disjointed. Under In re M-A-M-, those indicia triggered the
    IJ’s duty to explain whether Petitioner was competent and
    whether procedural safeguards were needed. The IJ failed to
    do so.
    On review, the BIA noted that Petitioner suffers from
    serious mental illness and “was feeling unwell without his
    medication” during the proceedings before the IJ.
    Nonetheless, the BIA concluded that remand was not
    warranted because certain procedural safeguards were in
    place—for instance, Petitioner was represented by counsel,
    he “presented testimony in support of his claims,” and he
    “provided his parents as witnesses.” But the BIA did not
    address the IJ’s failure to articulate his assessment of
    Petitioner’s competence and why these procedural
    safeguards were adequate.
    The BIA abused its discretion by failing to explain why
    it allowed the IJ to disregard In re M-A-M-’s rigorous
    procedural requirements. See 
    Alphonsus, 705 F.3d at 1044
    (“It is a well-settled principle of administrative law that an
    agency abuses its discretion if it clearly departs from its own
    8               CAMPOS MEJIA V. SESSIONS
    standards.” (internal quotation marks omitted)).We therefore
    remand to the BIA with instructions to remand to the IJ for
    a new hearing consistent with In re M-A-M-.
    Petition GRANTED and REMANDED. The parties
    shall bear their own costs on judicial review.
    

Document Info

Docket Number: 15-70155

Citation Numbers: 868 F.3d 1118

Filed Date: 8/29/2017

Precedential Status: Precedential

Modified Date: 1/12/2023