NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS NOV 19 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT DARIA DAMIAN-GALLARDO, a.k.a. No. 19-70230 DARIA GALLARDO DAMIAN, Agency No. A213-014-937 Petitioner, v. MEMORANDUM* MERRICK B. GARLAND, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted October 19, 2021 San Francisco, CA Before: GOULD and BEA, Circuit Judges, and VITALIANO,** District Judge. Daria Damian-Gallardo, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ (“BIA”) order affirming the finding by an Immigration Judge (“IJ”) that petitioner was competent to participate in her * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Eric N. Vitaliano, United States District Judge for the Eastern District of New York, sitting by designation. removal proceedings but dismissing the balance of her petition, which sought review of the IJ’s order denying her various applications aimed at obtaining relief from an order of removal. Because the parties are familiar with the facts and procedural history of the case, we do not recite them here, except as context requires. The BIA’s affirmance of an IJ’s finding of competency is subject to abuse of discretion review for procedural compliance with Matter of M-A-M-, 25 I. & N. Dec. 474 (BIA 2011). 1 See Mejia v. Sessions, 868 F.3d 1118, 1121 (9th Cir. 2017). Factual findings substantiating competency, however, are reviewed under the substantial evidence standard. See Salaam v. I.N.S., 229 F.3d 1234, 1237–38 (9th Cir. 2000). Although, in applying M-A-M- to determine whether a petitioner who manifests indicia of incompetency has the capacity to participate in her removal proceedings, an IJ must take “some ‘measures’” to assess competency, see Calderon-Rodriguez v. Sessions, 878 F.3d 1179, 1183 (9th Cir. 2018) (quoting M- A-M-, 25 I. & N. Dec. at 40), no specific approach, method, or manner of inquiry is 1 On a prior appeal, having concluded that Damian-Gallardo had sufficiently manifested indicia suggesting incompetency, the BIA remanded to the IJ for the purpose of conducting a competency hearing compliant with the controlling M-A- M- framework. 2 mandated. Rather, an M-A-M-compliant inquiry will vary with the circumstances as they are revealed. See 25 I. & N. Dec. at 480. Put to that test, the IJ’s inquiry into Damian-Gallardo’s competency comfortably satisfied the procedural guidelines set forth by BIA precedent. Indeed, the IJ applied several of the techniques listed as examples in M-A-M-. See 25 I. & N. Dec. at 480–81. For instance, the IJ consistently simplified, explained, and repeated questions when Damian-Gallardo expressed confusion about the topic or question at hand. The IJ also asked petitioner about her medications and how she was feeling, continued the proceedings to allow submission of additional evidence, and considered Damian-Gallardo’s medical records. Yet, notwithstanding the breadth of discretion accorded the IJ to fashion the competency inquiry, petitioner zeroes in only on the …
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