Bistermu Mora Salgado v. Jefferson Sessions

FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT BISTERMU S. MORA SALGADO, No. 14-71890 Petitioner, Agency No. v. A092-406-486 JEFFERSON B. SESSIONS III, Attorney General, OPINION Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted March 8, 2018 * Pasadena, California Filed May 8, 2018 Before: Ronald M. Gould and Mary H. Murguia, Circuit Judges, and Jack Zouhary, ** District Judge. Opinion by Judge Gould * The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). ** The Honorable Jack Zouhary, United States District Judge for the Northern District of Ohio, sitting by designation. 2 SALGADO V. SESSIONS SUMMARY *** Immigration The panel denied Bistermu Mora Salgado’s petition for review of a decision of the Board of Immigration Appeals, holding that Salgado’s complaints of poor memory, without evidence of an inability to understand the nature and object of the proceedings, were insufficient to show mental incompetency. At Salgado’s final hearing before an Immigration Judge, he claimed that he had recently been in a small car accident that was causing him memory loss. The IJ denied Salgado’s motion to continue the hearing for a medical exam, concluding that he was competent to testify, and the BIA affirmed. The panel observed that the standard for mental incompetency as set by the BIA in Matter of M-A-M-, 25 I. & N. Dec. 474 (BIA 2011), and endorsed by this court in Calderon-Rodriguez v. Sessions, 878 F.3d 1179 (9th Cir. 2018), and Mejia v. Sessions, 868 F.3d 1118 (9th Cir. 2017), is a stringent one. Under that standard, to demonstrate mental incompetency, a person must show some inability to comprehend or to assist and participate in the proceedings, some inability to consult with or assist their counsel or their representative if pro se, and lack of a reasonable opportunity to present evidence and examine witnesses, including cross- examination of opposing witnesses. The mere inability to *** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. SALGADO V. SESSIONS 3 recall some events, a common weakness, and other similar mental lapses, are not sufficient to show mental incompetency. In this case, the panel observed that there was no evidence that Salgado did not comprehend the nature and object of the proceedings. He was represented by counsel, and there was no evidence that he was unable meaningfully to assist counsel’s defense efforts. The panel further concluded that any memory loss Salgado may have experienced did not prejudice his immigration proceedings, because his application, not his poor memory, was the basis for the IJ’s denial of cancellation of removal. Accordingly, the panel concluded that the IJ did not err by denying a continuance, and that the BIA was correct to conclude that Salgado did not show indicia of incompetency. COUNSEL Pieter D. Speyer, La Jolla, California, for Petitioner. Lindsay M. Murphy, Trial Attorney; Keith ...

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