NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JAN 7 2022 FOR THE NINTH CIRCUIT MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS OMAR M. BAILEY, No. 18-73044 Petitioner, Agency No. A097-447-791 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted June 9, 2021 Seattle, Washington Before: W. FLETCHER, WATFORD, and COLLINS, Circuit Judges. Omar M. Bailey, a native and citizen of Jamaica, petitions for review of the decision of the Board of Immigration Appeals (“BIA”) affirming the order of the Immigration Judge (“IJ”) denying his applications for asylum, withholding of removal, and protection under the Convention Against Torture. “We review for abuse of discretion whether the BIA clearly departs from its own standards” with respect to competency procedures. Mejia v. Sessions, 868 F.3d 1118, 1121 (9th Cir. 2017). “We review factual findings, including adverse credibility * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. determinations, for substantial evidence.” Mukulumbutu v. Barr, 977 F.3d 924, 925 (9th Cir. 2020). A finding is supported by substantial evidence unless “‘any reasonable adjudicator would be compelled to conclude to the contrary’ based on the evidence in the record.” Ai Jun Zhi v. Holder, 751 F.3d 1088, 1091 (9th Cir. 2014) (quoting 8 U.S.C. § 1252(b)(4)(B)). We have jurisdiction under § 242 of the Immigration and Nationality Act, 8 U.S.C. § 1252, and we deny the petition. 1. Bailey argues that the IJ abused his discretion by failing to conduct a more thorough competency evaluation in light of asserted indicia of incompetency demonstrated by Bailey during his proceedings, including the following: (1) in the final moments of his proceedings, Bailey testified that a doctor at his immigration detention facility recommended that he see a psychologist; (2) his claims for relief were based in part on the allegation that he had been shot in the back of the head in 2016; and (3) as the IJ acknowledged in his decision, Bailey had given several answers that were “unintelligible” and “nonresponsive.” Although Bailey did not make this argument before the BIA, we may review this issue because the BIA addressed in its decision whether the record raised a question as to Bailey’s competency. Parada v. Sessions, 902 F.3d 901, 914 (9th Cir. 2018). “Aliens in immigration proceedings are presumed to be competent and, if there are no indicia of incompetency in a case, no further inquiry regarding competency is required.” Salgado v. Sessions, 889 F.3d 982, 987 (9th Cir. 2018) 2 (quoting Matter of M-A-M-, 25 I. & N. Dec. 474, 474 (B.I.A. 2011)). Here, the IJ was not alerted to a potential competency issue until near the end of Bailey’s final removal hearing. Bailey had previously indicated that he had no mental or physical problems, and the IJ observed him for a substantial amount of time across multiple hearings, in which Bailey testified, submitted letters by witnesses, and …
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