FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT HENRI CALDERON-RODRIGUEZ, No. 16-70225 Petitioner, Agency No. v. A205-273-112 JEFFERSON B. SESSIONS III, Attorney General, OPINION Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted December 4, 2017 Pasadena, California Filed January 3, 2018 Before: A. Wallace Tashima and Marsha S. Berzon, Circuit Judges, and Matthew F. Kennelly,* District Judge. Opinion by Judge Berzon * The Honorable Matthew F. Kennelly, United States District Judge for the Northern District of Illinois, sitting by designation. 2 CALDERON V. SESSIONS SUMMARY** Immigration 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. ** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. CALDERON V. SESSIONS 3 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. COUNSEL Taiyyeba S. Skomra (argued), Helen A. Sklar, and Amy P. Lenhert, Stone Grzegorek & Gonzalez, LLP, Los Angeles, California, for Petitioner. Sarah Byrd (argued), Trial Attorney; Chad A. Readler, Acting Assistant Attorney General; Linda S. Wernery, Assistant Director; Office of Immigration Litigation, Washington, D.C.; for Respondent. OPINION BERZON, Circuit Judge: This case concerns an individual’s right to a competence evaluation if there are indicia of his or her incompetence present during immigration proceedings. In particular, we consider the Department of Homeland Security’s (“DHS”) obligation to provide the Immigration Judge (“IJ”) with relevant evidence with regard to that individual’s competence. I. Petitioner Henri Calderon-Rodriguez (“Calderon”), who has been detained since 2012, petitions for review of the 4 CALDERON V. SESSIONS Board of Immigration Appeal’s (“BIA”) dismissal of his appeal, arguing that his competence was inappropriately and incompletely evaluated by his IJ. We agree. In 2012, Calderon applied for cancellation of removal and several other forms of ...
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