NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 15 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT FREDDY LOPEZ-AGUILAR, No. 17-72005 Petitioner, Agency No. A028-778-268 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted February 10, 2022** Phoenix, Arizona Before: MURGUIA, Chief Judge, and O’SCANNLAIN and GRABER, Circuit Judges. Freddy Lopez-Aguilar petitions for review of the decision of the Board of Immigration Appeals (“BIA”), which denied his motion to reopen. Lopez-Aguilar argues that he was denied due process during his deportation proceeding. Lopez- * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Aguilar also argues that the BIA abused its discretion when it declined to reopen his case because the BIA failed adequately to consider changed country conditions in Guatemala. We deny the petition in part and dismiss it in part. 1. The BIA did not abuse its discretion in declining to reopen Lopez-Aguilar’s case based on alleged due process violations in his deportation proceedings.1 A non- citizen “is entitled to a ‘full and fair hearing’ that meets the requirements of due process.” Vargas-Hernandez v. Gonzales, 497 F.3d 919, 926 (9th Cir. 2007) (quoting Campos–Sanchez v. INS, 164 F.3d 448, 450 (9th Cir. 1999)). “[I]f [a non- citizen] shows ‘indicia of incompetency,’ the [immigration judge (“IJ”)] has an independent duty to determine whether the [non-citizen] is competent.” Mejia v. Sessions, 868 F.3d 1118, 1121 (9th Cir. 2017) (citation omitted). A non-citizen is competent if he “has a rational and factual understanding of the nature and object of the proceedings, can consult with the attorney or representative if there is one, and has a reasonable opportunity to examine and to present evidence and to cross- 1 A petitioner generally must bring a motion to reopen within 90 days of a final order of removal. 8 U.S.C. § 1229a(c)(7)(C)(i). Here, Lopez-Aguilar missed that deadline by approximately two decades. The BIA noted that Lopez-Aguilar’s motion to reopen was untimely, but it did not address this issue. Instead, the BIA denied this portion of Lopez-Aguilar’s motion on the merits. “In reviewing the decision of the BIA, we consider only the grounds relied upon by that agency.” Andia v. Ashcroft, 359 F.3d 1181, 1184 (9th Cir. 2004) (per curiam). Accordingly, we review only the BIA’s merits decision and do not address the government’s assertion that the motion was untimely. 2 examine witnesses.” Calderon-Rodriguez v. Sessions, 878 F.3d 1179, 1182 (9th Cir. 2018) (quoting Matter of M-A-M-, 25 I. & N. Dec. 474, 479 (BIA 2011)). Lopez-Aguilar argues that his illiteracy was evidence of his incompetency, such that notice should have been served on a third party, and that he was incompetent to participate in his 1996 deportation proceedings. An interpreter, however, read the order …
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