NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS NOV 27 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT BEATRIZ CORONA CHAVEZ, AKA No. 14-70746 Beatrice Adriana Corona, Agency No. A205-387-121 Petitioner, v. MEMORANDUM* WILLIAM P. BARR, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted November 12, 2019** Pasadena, California Before: FERNANDEZ and M. SMITH, Circuit Judges, and OTAKE,*** District Judge. Beatriz Corona Chavez, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ (“BIA”) dismissal of her appeal from the * 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). *** The Honorable Jill Otake, United States District Judge for the District of Hawaii, sitting by designation. Immigration Judge’s (“IJ”) denial of her requests for withholding of removal as well as deferred removal pursuant to the Convention Against Torture. She also challenges the BIA’s failure to remand her case to an IJ for a competency hearing after the Department of Homeland Security (“DHS”) notified the BIA of her diagnosis for adjustment disorder with anxiety and her possible class membership in the Franco-Gonzalez v. Holder, No. CV 10-02211 DMG (DTBx) (C.D. Cal.) litigation. We grant the petition, vacate the BIA’s decision, and remand. We have jurisdiction to address the competency issues raised in this appeal because they are purely legal, see 8 U.S.C. § 1252(a)(2)(D), and are therefore excepted from 8 U.S.C. § 1252(a)(2)(C). The BIA erred by serving as a fact finder and effectively determining that Corona Chavez was competent to represent herself on appeal. The BIA had no findings to review regarding Corona Chavez’s competency to represent herself. Moreover, DHS’s notice sufficiently alerted the BIA that she may be mentally incompetent to represent herself during the appeal. To the extent that the BIA relied on the absence of additional evidence accompanying the DHS notice, it should have remanded to the IJ with instructions to receive information from DHS concerning Corona Chavez’s mental competency. See Calderon-Rodriguez v. Sessions, 878 F.3d 1179, 1183 (9th Cir. 2018). And because the BIA could not make findings regarding Corona Chavez’s competency, it should have remanded to 2 14-70746 the IJ to assess her competency under the framework articulated in Matter of M-A- M-, 25 I&N Dec. 474 (BIA 2011). We vacate the BIA’s decision and remand to the BIA with instructions to remand to the IJ for an assessment about Corona Chavez’s competency to represent herself in her BIA appeal and whether she should be provided with a qualified representative in accordance with Franco-Gonzalez. Petition GRANTED, VACATED, and REMANDED. 3 14-70746 FILED NOV 27 2019 MOLLY C. DWYER, CLERK Corona Chavez v. Barr, No. 14-70746 U.S. COURT OF APPEALS FERNANDEZ, Circuit Judge, concurring in part and dissenting in part: I fully agree with the ...
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