Edwin Campos Mejia v. Jefferson Sessions

Filing

FILED OPINION (SUSAN P. GRABER, MARY H. MURGUIA and EDWARD J. DAVILA) Petition GRANTED and REMANDED. The parties shall bear their own costs on judicial review. Judge: EJD Authoring. FILED AND ENTERED JUDGMENT. [10561830]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
EDWIN EDUARDO CAMPOS MEJIA,
Petitioner,
v.
JEFFERSON B. SESSIONS III, Attorney
General,
Respondent.

No. 15-70155
Agency No.
A071-583-259
OPINION

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.
*

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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.
**

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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

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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

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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))).

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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

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“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

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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.