NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JAN 2 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DIOGENES JASSO BERNAL, AKA Jesus No. 18-70272
Escamilla Serrano, AKA Federico Velasco
Rivero, Agency No. A027-149-962
Petitioner,
MEMORANDUM*
v.
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted December 12, 2019
Pasadena, California
Before: KELLY,** PAEZ, and BADE, Circuit Judges.
Diogenes Jasso Bernal, a native and citizen of Mexico, petitions for review
of the Board of Immigration Appeal’s (“BIA”) order affirming the Immigration
Judge’s (“IJ”) competency determination and denial of Convention Against
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Paul J. Kelly, Jr., United States Circuit Judge for the
U.S. Court of Appeals for the Tenth Circuit, sitting by designation.
Torture (“CAT”) protection.1
We have jurisdiction under 8 U.S.C. § 1252. We “review for abuse of
discretion whether the BIA clearly departs from its own standards.” Mejia v.
Sessions, 868 F.3d 1118, 1121 (9th Cir. 2017). We review factual findings for
substantial evidence. See Garcia v. Holder, 749 F.3d 785, 789 (9th Cir. 2014).
We grant the petition for review.
The Department of Homeland Security (“DHS”) “has an obligation to
provide the [immigration] court with relevant materials in its possession that would
inform the court about the respondent’s mental competency.” Matter of M-A-M-,
25 I. & N. Dec. 474, 480 (B.I.A. 2011) (citing 8 C.F.R. § 1240.2(a) (2010)). An IJ
must ensure that DHS complies with this obligation. Calderon-Rodriguez, 878
F.3d at 1183 (citing Matter of M-A-M-, 25 I. & N. Dec. at 480)).
DHS filed a notice of Franco-Gonzalez class membership with the
immigration court, see Franco-Gonzalez v. Holder, No. CV-10-02211 DMG
(DTBx), 2014 WL 5475097, at *3 (C.D. Cal. Oct. 29, 2014), and requested a
“judicial inquiry” to determine Jasso Bernal’s competency to represent himself.
1
Jasso Bernal also filed applications for asylum and withholding of removal,
which the IJ denied after finding that Jasso Bernal was ineligible for such relief. In
his appeal to the BIA, Jasso Bernal did not challenge the IJ’s determination that he
was ineligible for asylum or withholding of removal. Jasso Bernal also did not
contest the IJ’s competency finding before the BIA. However, there is no
exhaustion issue that precludes this court’s review of that issue. See Calderon-
Rodriquez v. Sessions, 878 F.3d 1179, 1183 n.1 (9th Cir. 2018).
2
DHS provided the immigration court with a mental health review (“MHR”) dated
June 10, 2016, and medical records indicating that Jasso Bernal was diagnosed
with unspecified psychosis for which he was taking medication. On June 28, 2016,
an IJ conducted a competency inquiry and concluded that Jasso Bernal was
competent for purposes of the immigration proceedings and to represent himself.
In 2017, a different IJ held several hearings on the merits of Jasso Bernal’s
applications for withholding of removal, asylum, and CAT protection. During
those hearings DHS did not provide, and the IJ did not request, updated records
relevant to Jasso Bernal’s mental competency. Nonetheless, during those hearings,
the IJ found Jasso Bernal competent to meaningfully participate in the proceedings
and to represent himself.
When evaluating Jasso Bernal’s competency, the IJ departed from the
requirements of Matter of M-A-M- by failing to “adequately ensure that DHS
complied with its ‘obligation to provide the court with relevant materials in its
possession that would inform the court about [Jasso Bernal’s] mental
competency.’” Calderon-Rodriguez, 878 F.3d at 1183 (quoting Matter of M-A-M-,
25 I. & N. Dec. at 480)). At the time of the first 2017 hearing, the MHR was
nearly a year old. There were also specific indications that, after the date of the
MHR, DHS provided medical care to Jasso Bernal and, thus, likely possessed
records relevant to his mental competency. Despite these indications, DHS did not
3
provide, and the IJ did not request, additional material in DHS’s possession that
would inform the court about Jasso Bernal’s competency. See id. Thus, the IJ
departed from the requirements of Matter of M-A-M-, and the BIA abused its
discretion in affirming the IJ’s competency determinations without explaining why
it permitted that departure.
The petition is GRANTED. The case is REMANDED to the BIA with
instructions to remand to the IJ for further proceedings in accordance with this
disposition, including a competency determination based on current mental health
reviews and medical records, as well as any other relevant evidence.
4
Diogenes Jasso Bernal v. William Barr
Combined Opinion