MENTAL COMPETENCY HEARING: 9th CIR. CALLS OUT BIA FOR ERRONEOUS FACTFINDING AND FAILURE TO FOLLOW OWN PRECEDENT – CALDERON-RODRIGUEZ V. SESSIONS

16-70225-9th Competenc – y

Calderon-Rodriguez v. Sessions, 9th Cir., 01-03-18, published

COURT’S HEADNOTE:

The panel granted Henri Calderon-Rodriguez’s petition for review of the Board of Immigration Appeals’ decision, concluding that the Board in two related ways abused its discretion in affirming the IJ’s competence evaluation and determination.

First, the Board affirmed the IJ’s inaccurate factual findings, failing to recognize that the medical record upon which the IJ and Board heavily relied was nearly a year old, and that it may have no longer reflected Calderon’s mental state.

Second, the Board affirmed the IJ’s departure from the standards set out by the Board for competency determinations in Matter of M-A-M-, 25 I. & N. Dec. 474 (BIA 2011). Specifically, the panel concluded that the IJ did not adequately ensure that the Department of Homeland Security complied with its obligation to provide the court with relevant materials in its possession that would inform the court about Calderon’s mental competency. In this respect, the panel noted that, importantly, neither the IJ nor the Board recognized that, as DHS was providing ongoing medical care to Calderon as a detainee, it necessarily possessed additional relevant, but not introduced, medical records.

The panel remanded to the Board with instructions to remand Calderon’s case to the IJ for a competence evaluation based on current mental health reviews and medical records, as well as any other relevant evidence.

** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.

PANEL:  A. Wallace Tashima and Marsha S. Berzon,Circuit Judges, and Matthew F. Kennelly,* District Judge.* The Honorable Matthew F. Kennelly, United States District Judge for the Northern District of Illinois, sitting by designation.

OPINION BY: Judge Berzon

KEY QUOTE:

“First, the BIA affirmed the IJ’s inaccurate factual finding about the mental health evidence in the record. Neither the IJ nor the BIA recognized that the medical record upon which they heavily relied was nearly a year old, and that it may have no longer reflected Calderon’s mental state. Instead, the IJ referred to the medical record as an “updated” reflection of Calderon’s present mental health condition, and stated that the record showed that Calderon “[p]resently . . . is not exhibiting any active PTSD symptoms, suicide ideation, hallucinations, or psychosis” (emphasis added). Those findings as to Calderon’s condition at the time of the hearing were not supported by the year-old date on the mental health record. As these critical factual findings were made “without ‘support in inferences that may be drawn from the facts in the record,’” Rodriguez v. Holder, 683 F.3d 1164, 1170 (9th Cir. 2012) (quoting Anderson v. Bessemer City, 470 U.S. 564, 577 (1985) and citing United States v. Hinkson, 585 F.3d 1247,M1262 (9th Cir. 2009) (en banc)), they constituted an abuse of discretion.

Second, the BIA abused its discretion by affirming the IJ’s departure from the standards set forth in Matter of M-A-M-, 25 I&N Dec. at 480–81. See Mejia, 868 F.3d at 1121. While the IJ did “take” at least some “measures” to determine whether Calderon was competent, Matter of M-A- M-, 25 I&N Dec. at 480, she did not adequately ensure that DHS complied with its “obligation to provide the court with relevant materials in its possession that would inform the court about the respondent’s mental competency,” as required by Matter of M-A-M-. Id.

Importantly, neither the IJ nor the BIA recognized that, as DHS was providing ongoing medical care to Calderon as a detainee, it necessarily possessed additional relevant, but not introduced, medical records. There were, indeed, specific indications that there were later medical records not provided to the IJ or the BIA that could have reflected a deterioration in Calderon’s condition.”

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This unrepresented Respondent has been in DHS custody for going on six years! This case previously reached the Court of Appeals and was remanded at the DOJ’s request for the holding of a competency hearing. Yet, the BIA still did not take the time and care necessary to properly apply their own precedent on how to conduct mental competency hearings consistent with due process!

PWS

01-04-18

THE BIA ISSUED MATTER OF M-A-M- TO GUIDE IJS ON MENTAL COMPETENCY ISSUES — THE PROBLEM: THE BIA IGNORES ITS OWN PRECEDENT ACCORDING TO 9th CIR!

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/08/29/15-70155.pdf

Mejia v. Sessions, 9th Cir., 08-29-17 (Published)

PANEL: Susan P. Graber and Mary H. Murguia, Circuit Judges, and Edward J. Davila,* District Judge

OPINION BY: Judge Davila

Key Excerpt:

“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 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-.”

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The problem of the BIA not applying its own precedents to protect migrants’ rights is hardly new. But, it’s likely to get worse as Sessions pushes his “captive court system” to churn out more removal orders faster with only lip service to due process.

Question: Why would a reviewing court have to direct the BIA to apply the BIA’s own precedent? So much for the BIA as a “guarantor of due process.”

Rather than “jacking up the numbers” to meet the Trump-Sessions removal agenda, the BIA needs to slow things down, assign more cases to three-member panels, and do the kind of careful judicial review and deliberation necessary to insure due process. It’s also pretty obvious that the staff has been instructed to “default to denial.” They need some training from academic experts in due process and asylum law.

Too much “inbreeding”  — too much agency lingo — too much DOJ political influence.  The effects are obvious. The BIA needs to be removed from the DOJ and re-constituted as an independent appellate court. Otherwise, the Courts of Appeals need to step in and force the BIA to do its job!

PWS

09-02-17