NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 26 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
FERNANDO AGUIRRE-URBINA, No. 17-72602
Petitioner, Agency No. A087-594-874
v.
MEMORANDUM*
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted March 14, 2019
San Francisco, California
Before: M. SMITH, WATFORD, and HURWITZ, Circuit Judges.
Fernando Aguirre-Urbina, a native and citizen of Mexico, petitions for review
of a decision of the Board of Immigration Appeals (“BIA”) dismissing his appeal
from the denial by an Immigration Judge (“IJ”) of (1) his motion to terminate
removal proceedings based on mental incompetency; and (2) his applications for
withholding of removal and relief under the Convention Against Torture (“CAT”).
We have jurisdiction under 8 U.S.C. § 1252 and deny the petition for review as to
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
the motion to terminate, but grant it as to the withholding and CAT claims.
1. The IJ did not deny Aguirre due process by proceeding with the removal
hearing after finding him incompetent. The IJ adopted appropriate procedural
safeguards to ensure fairness, assuring that Aguirre had counsel and allowing him to
testify with the aid of notes. See Mejia v. Sessions, 868 F.3d 1118, 1121 (9th Cir.
2017); Matter of M-A-M-, 25 I. & N. Dec. 474, 476–83 (BIA 2011). The IJ was not
required to terminate the removal proceeding because Aguirre was not restored to
competency; instead, only “procedural fairness is required.” M-A-M-, 25 I. & N.
Dec. at 479; see also Nee Hao Wong v. INS, 550 F.2d 521, 523 (9th Cir. 1977) (“The
Immigration and Naturalization Act contemplates that deportation proceedings may
be had against mental incompetents.”).
2. In concluding that Aguirre failed to establish that it is more likely than not
that he will be tortured if returned to Mexico, the BIA relied only on Aguirre’s 2014
testimony. It did not consider a 2016 declaration from Aguirre detailing more recent
threats. The BIA thus committed an error of law by failing to consider all relevant
evidence, and we grant the petition for review as to the CAT claim and remand to
allow it to do so. See Parada v. Sessions, 902 F.3d 901, 914–15 (9th Cir. 2018).
3. The IJ erred by not considering Aguirre’s mental health in determining
whether his conviction for possessing with intent to deliver a controlled substance
was a particularly serious crime making him ineligible for withholding of removal.
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Although Aguirre did not exhaust this argument in the agency proceedings, we have
jurisdiction because it was not available “as of right” when the IJ and BIA issued
their decisions. See Sun v. Ashcroft, 370 F.3d 932, 942–43 (9th Cir. 2004); 8 U.S.C.
§ 1252(d)(1). At those times, BIA case law dictated that “an alien’s mental health
is not a factor to be considered in assessing whether he or she has been convicted of
a particularly serious crime.” Matter of G-G-S-, 26 I. & N. Dec. 339, 347 (BIA
2014). But, we subsequently held that mental health is relevant to the determination.
See Gomez-Sanchez v. Sessions, 892 F.3d 985, 995–96 (9th Cir. 2018). We therefore
grant the petition to allow the BIA to make the particularly serious crime
determination. See Anaya-Ortiz v. Holder, 594 F.3d 673, 676 (9th Cir. 2010) (noting
that this Court has no jurisdiction to make the determination, only to determine
whether the BIA applied the correct legal standard).
PETITION GRANTED IN PART, DENIED IN PART, AND
REMANDED. Each party to bear its own costs.
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