NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS OCT 27 2020 MOLLY C. DWYER, CLERK FOR THE NINTH CIRCUIT U.S. COURT OF APPEALS JOSE LUIS BERMUDEZ GUZMAN, AKA No. 18-72783 Jose Luis Bermudez, Agency No. A092-807-306 Petitioner, v. MEMORANDUM* WILLIAM P. BARR, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted April 16, 2020** Pasadena, California Before: SCHROEDER and COLLINS, Circuit Judges, and BAYLSON,*** District Judge. Jose Luis Bermudez Guzman (“Bermudez”) petitions for review of the order of the Board of Immigration Appeals (“BIA”) affirming the decision of the immigration judge (“IJ”) denying his applications for adjustment of status, asylum, withholding of removal, and protection under the Convention Against Torture * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes that this case is suitable for decision without oral argument. See FED. R. APP. P. 34(a)(2)(C). *** The Honorable Michael M. Baylson, United States District Judge for the Eastern District of Pennsylvania, sitting by designation. (“Torture Convention”). We have jurisdiction pursuant to § 242 of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1252. We deny the petition. 1. We review for abuse of discretion the BIA’s decision to affirm the IJ’s handling of the issues concerning Bermudez’s competence. Calderon-Rodriguez v. Sessions, 878 F.3d 1179, 1182 (9th Cir. 2018). We find no abuse of discretion. At Bermudez’s first merits hearing in January 2017, at which time Bermudez was not in custody, the IJ noted that Bermudez sought asylum based on membership in a proposed social group consisting of “bipolar schizophrenic[s].” The IJ asked Bermudez’s counsel whether there was “an issue here” with respect to Bermudez’s ability to assist counsel in preparing his case, and counsel said no. The IJ then asked whether counsel was “satisfied that he’s competent and understanding you and you’re understanding him,” and counsel replied, “Yes.” Bermudez then gave dozens of pages of coherent and responsive testimony, including testimony discussing his history of mental health issues. In light of Bermudez’s extensive and coherent testimony and his counsel’s contemporaneous affirmation that there was no difficulty in working with Bermudez to prepare his case, the BIA did not abuse its discretion in concluding that there were not sufficient “indicia of incompetence” to warrant a further inquiry by the IJ. Calderon-Rodriguez, 878 F.3d at 1182. After Bermudez was later detained by the Department of Homeland Security 2 (“DHS”), venue was transferred to the Adelanto Immigration Court. Over the ensuing months, the IJ undertook several formal competency inquiries, applying the standards set forth in Matter of M-A-M-, 25 I. & N. Dec. 474 (BIA 2011). In December 2017, the IJ found for the first time that Bermudez was not competent. Bermudez argues that, in assessing Bermudez’s competency, the IJ failed to use the preponderance of the evidence standard set forth in Matter of J-S-S-, 26 I. & N. Dec. 679 (BIA 2016), but we perceive no ...
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