Rene Lemus-Escobar v. Pamela Bondi

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

RENE LEMUS-ESCOBAR, Nos. 18-73423

19-71892

Petitioner,

v. Agency No.

A029-182-463

PAMELA BONDI, Attorney General,

Respondent. OPINION

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted February 13, 2025

Submission Withdrawn February 13, 2025

Resubmitted March 26, 2025

San Francisco, California

Filed June 16, 2025

Before: Susan P. Graber and John B. Owens, Circuit

Judges, and Jack Zouhary,* District Judge.

Opinion by Judge Graber;

Partial Concurrence and Partial Dissent by Judge Zouhary

*

The Honorable Jack Zouhary, United States District Judge for the

Northern District of Ohio, sitting by designation.

2 LEMUS-ESCOBAR V. BONDI

SUMMARY**

Immigration

The panel denied in part, dismissed in part, and granted

in part Rene Lemus-Escobar’s petition for review of the

Board of Immigration Appeals’ decision denying relief from

removal, and his petition for review of the BIA’s denial of

his motion to reopen, and remanded.

Addressing the initial denial of relief, the panel began by

clarifying the court’s jurisdictional rules in light of recent

Supreme Court decisions affecting cases such as this one,

where Petitioner was denied cancellation of removal under 8

U.S.C. § 1229b(b)(1) and cancellation of removal under the

Nicaraguan Adjustment and Central American Relief Act

(“NACARA”): Wilkinson v. Garland, 601 U.S. 209 (2024);

Patel v. Garland, 596 U.S. 328 (2022); and Guerrero-

Lasprilla v. Barr, 589 U.S. 221 (2020).

In light of those decisions, the panel explained that the

court has jurisdiction over constitutional claims and

questions of law under 8 U.S.C. § 1252(a)(2)(D), including

fact-intensive mixed questions of law; the court thus has

jurisdiction over determinations of statutory eligibility.

However, under 8 U.S.C. § 1252(a)(2)(B)(i), the court lacks

jurisdiction over purely factual findings, such as an adverse

credibility determination or a finding of historical fact; and

the court lacks jurisdiction over purely discretionary

**

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

LEMUS-ESCOBAR V. BONDI 3

determinations, such as the agency’s denial of cancellation

as a matter of discretion.

Next, the panel concluded that the court’s precedent

foreclosed Petitioner’s argument that the agency lacked

jurisdiction because the initial notice to appear did not

specify the time and place to appear, and that Petitioner’s

new non-jurisdictional argument was unexhausted.

Addressing Petitioner’ mental competency, the panel

concluded that the BIA abused its discretion by holding that

the record contained insufficient indicia of incompetence to

mandate remand to the IJ. In light of the indicia here—head

trauma, severe alcohol abuse, dementia, anxiety, depression,

memory disturbance, significant medical prescriptions,

family testimony about forgetfulness and mental problems,

inability to work due to disability, some confusing

testimony, and inability to understand some questions—the

panel granted and remanded on this issue. However, for

efficiency, the panel addressed Petitioner’s remaining

arguments, on the assumption that Petitioner was competent.

As to asylum and related relief, the panel concluded that

the BIA permissibly concluded that Petitioner had

withdrawn his asylum application before the IJ.

Next, the panel concluded that the BIA did not err in

concluding that Petitioner was ineligible for cancellation of

removal on the ground that his conviction under California

Penal Code section 246, for shooting a firearm at an

inhabited dwelling, is categorically a crime involving moral

turpitude. Explaining that the state offense requires an

intentional shooting of a firearm, that is, the use of a deadly

weapon, in circumstances that necessarily pose a significant

risk of bodily harm to another, the panel concluded that the

state offense falls within the generic definition of a crime

4 LEMUS-ESCOBAR V. BONDI

involving moral turpitude. The panel noted that the Supreme

Court’s decision in Loper Bright Enterprises v. Raimondo,

603 U.S. 369 (2024), had no effect on its analysis.

As to NACARA cancellation, the panel concluded that

Petitioner forfeited and then affirmatively waived any

challenge to the BIA’s denial of that relief.

Turning to the BIA’s denial of Petitioner’s motion to

reopen, the panel began by clarifying the court’s jurisdiction

over challenges to the BIA’s denial of a motion to reopen an

application for cancellation of removal, NACARA

cancellation of removal, or other forms of relief listed in

§ 1252(a)(2)(B)(i). The panel concluded that the court has

jurisdiction over the denial of such a motion for a procedural

reason (e.g., untimeliness or failure to attach new evidence)

and over a denial on the ground that the petitioner has not

established a prima facie case of statutory eligibility for

relief. But the court lacks jurisdiction when the BIA rules

that the petitioner failed to establish that the new evidence

would likely change the determination that the petitioner

does not warrant a favorable exercise of discretion. And the

court always retains jurisdiction over constitutional claims

and questions of law. In reaching these conclusions, the

panel recognized, as overruled, this court’s holding in

Fernandez v. Gonzales, 439 F.3d 592 (9th Cir. 2006),

concerning jurisdiction over challenges to the denial of

reopening with respect to statutory eligibility.

As to the BIA’s denial of reopening to seek NACARA

cancellation, the panel concluded that the BIA committed no

legal error, and the court lacks jurisdiction to review the

BIA’s holding that it would deny as a matter of discretion.

Finally, the panel addressed the BIA’s denial of

reopening to seek asylum and related relief based on

LEMUS-ESCOBAR V. BONDI 5

Petitioner’s fears of being removed to Guatemala. The BIA

denied reopening for two reasons: failure to submit “new”

evidence; and failure to establish a prima facie case. As to

the BIA’s ruling that the evidence was not “new” because it

could have been discovered after the merits hearing but

before the appeal to the BIA, the panel concluded this was

legal error because evidence is “new” if it was not available

at the former hearing before the IJ.

As to the BIA’s ruling that Petitioner failed to establish

a prima facie case for asylum, withholding of removal and

CAT relief, the panel concluded that the BIA did not err by

focusing on the time of Petitioner’s past harm in concluding

that Petitioner was unlikely to prove past persecution.

Likewise, the BIA reasonably concluded that the record

contained no meaningful evidence that a gang member or

drug trafficker would harm him today.

However, the panel concluded that the BIA abused its

discretion in denying reopening with respect to Petitioner’

claim related to his mental illness. Petitioner fears that,

because of his age (68) and significant mental health

problems, he will be hospitalized in Federico Mora National

Hospital for Mental Health, where he will be abused and

tortured. Explaining that Petitioner fears direct physical

violence while institutionalized, and that his claim is

supported by specific and credible reports, the panel

concluded that Petitioner established at least a “reasonable

likelihood” that he would establish a reasonable fear of

future harm. The BIA illogically concluded otherwise only

by misunderstanding (or mischaracterizing) the nature of his

claim as being about generalized healthcare conditions in the

country as a whole. The panel also concluded that the same

error affected the BIA’s analysis of Petitioner’s CAT claim.

6 LEMUS-ESCOBAR V. BONDI

Concurring in part and dissenting in part, Judge Zouhary

wrote that he agreed with the majority on all points except

the decision to remand on competency. In Judge Zouhary’s

view, this was not a case in which Petitioner did not

rationally understand his proceedings; rather, he attempted

to minimize certain aspects of his claim. Judge Zouhary

wrote that remanding cases that lack a legitimate question of

competency undermines the finality of proceedings,

encourages delay, and further strains our already

overburdened immigration courts.

Judge Zouhary reluctantly agreed with the conclusion to

remand on fear of future harm. Noting that the record did not

reflect that Petitioner is likely to be hospitalized or that he

likely belongs to a particular social group, the BIA did not

make that finding, and this court cannot affirm the BIA on a

ground upon which it did not rely. Judge Zouhary observed

that in the decades since Petitioner filed for asylum in 1992,

this case has included thousands of pages of documents,

dozens of hearings, and multiple appeals, and now, another

unfortunate snag in the country’s congested and broken

immigration system.

LEMUS-ESCOBAR V. BONDI 7

COUNSEL

Thomas Perkinson (argued) and Enrique Arevalo, Law

Office of Enrique Arevalo, South Pasadena, California, for

Petitioner.

Claire L. Workman (argued), Senior Litigation Counsel;

Melissa Neiman-Kelting, John W. Blakeley, and Keith I.

McManus, Assistant Directors; Office of Immigration

Litigation; Jeffery B. Clark, Acting Assistant Attorney

General; Brian M. Boynton, Principal Deputy Assistant

Attorney General; Civil Division, United States Department

of Justice, Washington, D.C.; for Respondent.

OPINION

GRABER, Circuit Judge:

Petitioner Rene Lemus-Escobar left his native

Guatemala in 1985 and entered the United States without

admission or parole. In removal proceedings decades later,

he conceded removability but sought several forms of relief,

including asylum, withholding of removal, relief under the

Convention Against Torture (“CAT”), cancellation of

removal under 8 U.S.C. § 1229b(b)(1), and relief pursuant to

the Nicaraguan Adjustment and Central American Relief

Act (“NACARA”). An immigration judge (“IJ”) denied all

forms of relief, and the Board of Immigration Appeals

(“BIA”) upheld the removal order in 2018. Petitioner timely

filed a motion to reopen proceedings, but the BIA denied

reopening in 2019. Petitioner timely sought review of both

decisions.

8 LEMUS-ESCOBAR V. BONDI

Since then, the Supreme Court has issued decisions

affecting our jurisdiction in cases such as this one, where

Petitioner seeks cancellation of removal and NACARA

relief. Wilkinson v. Garland, 601 U.S. 209 (2024); Patel v.

Garland, 596 U.S. 328 (2022); Guerrero-Lasprilla v. Barr,

589 U.S. 221 (2020). In light of those intervening decisions,

we recognize as overruled several aspects of our existing

precedents, and we clarify the jurisdictional rules going

forward. Applying those rules, we conclude that we lack

jurisdiction over some of the agency’s decisions, so we

dismiss the petitions in part. Assessing the merits where we

do have jurisdiction, we deny the petitions in most respects

but grant the petitions in part.

FACTUAL AND PROCEDURAL HISTORY

Petitioner is a 67-year-old native and citizen of

Guatemala who, as noted, entered the United States in 1985.

In the decades following his arrival, he applied for several

forms of relief. In 1992, he applied for asylum, withholding

of removal, and CAT relief. In 2000, he applied for

cancellation of removal pursuant to NACARA. And in

2008, after the government initiated removal proceedings, he

applied for cancellation of removal pursuant to 8 U.S.C.

§ 1229b(b)(1).

At a series of merits hearings spanning the period from

2011 to 2013, Petitioner, his wife, and three of his children

testified. The IJ declined to issue an immediate decision, in

part because annual limits on grants of cancellation of

removal had been met. In 2017, a new IJ took over the case

and issued a written decision denying all forms of relief and

ordering Petitioner removed to Guatemala.

The IJ found credible the testimony of Petitioner’s

children, but she found not credible the testimony of

LEMUS-ESCOBAR V. BONDI 9

Petitioner and his wife. The IJ concluded that Petitioner had

withdrawn his application for asylum, withholding of

removal, and CAT relief. The IJ denied ordinary

cancellation of removal because Petitioner had committed at

least one crime involving moral turpitude. In particular, the

IJ concluded that two of Petitioner’s criminal convictions—

for shooting at an inhabited house in 1988, in violation of

California Penal Code section 246, and for causing a

corporal injury of a spouse in 1993, in violation of California

Penal Code section 273.5(a)—were crimes involving moral

turpitude. Finally, the IJ denied NACARA relief,

concluding that Petitioner had not demonstrated exceptional

and extremely unusual hardship and that, in the alternative,

she would deny NACARA relief in the exercise of

discretion, primarily because of Petitioner’s “multiple

criminal convictions and [his] failure to take responsibility

for his crimes.”

Petitioner hired a new lawyer and appealed to the BIA.

In addition to challenging the issues addressed by the IJ,

Petitioner argued that the notice to appear was legally

deficient and that, because the record contained many indicia

of incompetency, the BIA must remand to the IJ for a

competency evaluation.

In late 2018, the BIA dismissed the appeal. The BIA

upheld the IJ’s credibility determinations; rejected the

argument concerning the notice to appear; concluded that the

record “does not contain sufficient indicia of incompetency

such that remand is necessary for the [IJ] to conduct a

competency evaluation”; and denied Petitioner’s request that

the case be remanded for consideration of asylum and related

relief. The BIA affirmed the IJ’s conclusion that Petitioner

was ineligible for ordinary cancellation of removal because

he had been convicted of a crime involving moral turpitude.

10 LEMUS-ESCOBAR V. BONDI

Specifically, the BIA held that Petitioner’s 1988 conviction

for shooting at an inhabited house was a crime involving

moral turpitude and declined to reach, as unnecessary,

whether Petitioner’s 1993 crime also involved moral

turpitude. Finally, the BIA denied NACARA relief,

agreeing with the IJ both that Petitioner failed to establish

that his removal would result in exceptional and extremely

unusual hardship and that, in the alternative, Petitioner “does

not merit a favorable exercise of discretion.”

In early 2019, Petitioner timely filed a motion to reopen

with the BIA. Petitioner attached hundreds of pages of

evidence related to his declining health and to his fear of

future harm. He sought to reopen his application for

NACARA relief due to additional evidence of hardship to

him and his family members. And he sought to reopen his

applications for asylum, withholding of removal, and CAT

relief both because of evidence that he feared harm if

removed to Guatemala and because of evidence that he, in

fact, had not withdrawn those applications.

In June 2019, the BIA denied the motion to reopen.

Assessing the evidence pertaining to NACARA relief, the

BIA held that some of the evidence could have been

discovered or presented earlier and that, in any event,

Petitioner failed to show that the evidence would likely

change the BIA’s discretionary denial of relief. With respect

to asylum, withholding, and CAT relief, the BIA held that

the evidence was not “new” and that Petitioner was not

prima facie eligible for the requested relief.

Petitioner timely filed petitions for review of both the

2018 denial of relief on the merits and the 2019 denial of

reopening. We consolidated the cases and ordered

LEMUS-ESCOBAR V. BONDI 11

supplemental briefing on the effect of intervening decisions

by the Supreme Court and by this court.

STANDARDS OF REVIEW

We review de novo questions of law. Ruiz-Colmenares

v. Garland, 25 F.4th 742, 748 (9th Cir. 2022). We review

for abuse of discretion the BIA’s denial of reopening. Bent

v. Garland, 115 F.4th 934, 939 (9th Cir. 2024). The BIA

abuses its discretion when it acts “arbitrarily, irrationally, or

contrary to the law,” or “when it fails to provide a reasoned

explanation for its actions.” Id. (citations and internal

quotation marks omitted).

DISCUSSION

We first consider Petitioner’s challenge to the initial

denial of relief in 2018, before turning to Petitioner’s

challenge to the denial of reopening in 2019.

A. The BIA’s Initial Denial of Relief in 2018

We address the following issues related to the BIA’s

initial denial of relief from removal: (1) our jurisdiction; (2)

arguments pertaining to the notice to appear; (3) Petitioner’s

competency; (4) asylum, withholding of removal, and CAT

relief; (5) cancellation of removal; and (6) NACARA

cancellation of removal.

1. Our Jurisdiction

Recent cases have affected our jurisdiction to decide

challenges to the BIA’s denial of cancellation of removal

under 8 U.S.C. § 1229b and cancellation of removal under

NACARA. We clarify our caselaw at the outset.

Title 8 U.S.C. § 1229b authorizes the BIA to cancel the

removal of a petitioner. The analysis proceeds in two steps.

Step one concerns statutory eligibility. A nonpermanent

12 LEMUS-ESCOBAR V. BONDI

resident is statutorily eligible for cancellation of removal if

four elements are met: (A) physical presence for ten years;

(B) good moral character; (C) no conviction for certain

categories of crimes, including crimes involving moral

turpitude; and (D) exceptional and extremely unusual

hardship. 8 U.S.C. § 1229b(b)(1). Even if a person is

statutorily eligible for cancellation of removal at step one,

the BIA nevertheless may deny cancellation of removal, as

a matter of discretion, at step two. See id. § 1229a(c)(4)(A)

(authorizing most relief from removal if the person “(i)

satisfies the applicable eligibility requirements; and (ii) . . .

merits a favorable exercise of discretion”).

Cancellation of removal under NACARA has similar,

but not identical, requirements. As relevant here, a person

convicted of a crime of moral turpitude remains eligible for

NACARA cancellation of removal if the other three

requirements listed above are met (physical presence, good

moral character, and hardship). 8 C.F.R. § 1240.66(c). And,

as with cancellation of removal pursuant to § 1229b(b)(1),

even if the person is statutorily eligible at step one, the BIA

retains discretion, at step two, to deny NACARA

cancellation of removal. 8 C.F.R. § 1240.64(a); Monroy v.

Lynch, 821 F.3d 1175, 1177 (9th Cir. 2016).

Under 8 U.S.C. § 1252(a)(2)(B)(i), we lack jurisdiction

over “any judgment regarding the granting of relief under”

five statutory sections, including the cancellation of removal

statute, § 1229b. We thus lack jurisdiction over “any

judgment regarding the granting of” cancellation of removal.

Id. That rule applies equally to NACARA cancellation of

removal because NACARA builds expressly on the

procedural and substantive provisions of § 1229b. Monroy,

821 F.3d at 1177. In sum, then, we lack jurisdiction over

LEMUS-ESCOBAR V. BONDI 13

any judgment regarding cancellation of removal or

NACARA cancellation of removal.

In Patel, the Supreme Court interpreted broadly

§ 1252(a)(2)(B)(i)’s jurisdiction-stripping phrase, “any

judgment regarding the granting of relief under” the five

listed statutory sections. 596 U.S. at 338–39. The use of the

word “‘any’ means that the provision applies to judgments

of whatever kind.” Id. at 338 (citation and some internal

quotation marks omitted). And the word “regarding”

similarly “has a broadening effect, ensuring that the scope of

a provision covers not only its subject but also matters

relating to that subject.” Id. at 339 (citation and internal

quotation marks omitted). “Thus, § 1252(a)(2)(B)(i)

encompasses not just ‘the granting of relief’ but also any

judgment relating to the granting of relief,” including the

agency’s underlying factual findings. Id.; see also Figueroa

Ochoa v. Garland, 91 F.4th 1289, 1294–95 (9th Cir. 2024)

(describing Patel).

Notably, however, § 1252(a)(2)(D) restores our

jurisdiction over “constitutional claims” and, as relevant

here, “questions of law.” On the topic of what constitutes a

“question of law,” the Supreme Court issued important

rulings in Guerrero-Lasprilla and Wilkinson. In both cases,

the Court made clear that the phrase “questions of law” in

§ 1252(a)(2)(D) encompasses all pure questions of law and

mixed questions of law and fact, even very fact-intensive

inquiries.

In Guerrero-Lasprilla, the BIA held that the petitioners

failed to establish due diligence, which is required to warrant

equitable tolling of the deadline for filing a motion to reopen.

589 U.S. at 226. “[T]he underlying facts were not in

dispute,” but the Fifth Circuit held that diligence is an

14 LEMUS-ESCOBAR V. BONDI

unreviewable factual question. Id. The Supreme Court

disagreed, holding that “whether a given set of facts meets a

particular legal standard” is a “question of law” for purposes

of § 1252(a)(2)(D). Id. at 227.

In Wilkinson, the IJ concluded that the petitioner was

ineligible for cancellation of removal because he failed to

establish “exceptional and extremely unusual hardship,” and

the BIA affirmed. 601 U.S. at 216. Some circuit courts,

including ours, had held that the hardship determination was

unreviewable because it was a “subjective, discretionary

judgment.” Romero-Torres v. Ashcroft, 327 F.3d 887, 888

(9th Cir. 2003); see Wilkinson, 601 U.S. at 217 n.2

(collecting cases). The Supreme Court disagreed with that

interpretation, holding that the hardship inquiry is an

ordinary application of a legal standard to a set of facts.

Wilkinson, 601 U.S. at 221–22. “Mixed questions of law

and fact, even when they are primarily factual, fall within the

statutory definition of ‘questions of law’ in § 1252(a)(2)(D)

and are therefore reviewable.” Id. at 225.

Those cases make clear that the step-one statutory

eligibility requirements—including hardship—present

“questions of law” for purposes of § 1252(a)(2)(D) and that,

consequently, we have jurisdiction to review the agency’s

determination that a particular set of facts does not meet

those requirements.1 We therefore recognize, as overruled,

1

Because the agency’s determination of facts remains unreviewable,

the reviewability of the statutory eligibility standards in some cases

may, as a practical matter, have little effect. For example, where the

only dispute about continuous physical presence concerns the

petitioner’s arrival date, the agency’s factual finding on that point may

mean that this court has no meaningful legal question to review.

Similarly, where the agency disbelieves a petitioner’s testimony as to

LEMUS-ESCOBAR V. BONDI 15

our holding in Romero-Torres that the hardship

determination is unreviewable. See Miller v. Gammie, 335

F.3d 889, 900 (9th Cir. 2003) (en banc) (holding that we may

recognize, as overruled, an earlier holding that conflicts with

an intervening Supreme Court decision); see also Gonzalez-

Juarez v. Bondi, No. 21-927, 2025 WL 1440220, at *3 (9th

Cir. May 20, 2025) (reaching this same conclusion). Other

cases that applied Romero-Torres’s holding, such as

Fernandez v. Gonzales, 439 F.3d 592, 596 (9th Cir. 2006),

and Martinez-Rosas v. Gonzales, 424 F.3d 926, 929–30 (9th

Cir. 2005), likewise are no longer good law in that respect.

Before moving on, we note two additional points from

Wilkinson. First, even though a fact-intensive mixed

question is a “question of law” for the purpose of

§ 1252(a)(2)(D), those questions still warrant “deferential”

review by the circuit court. Wilkinson, 601 U.S. at 225. We

recently concluded that we review for substantial evidence

fact-intensive mixed questions of this sort. Gonzalez-Juarez,

2025 WL 1440220, at *3–5. Second, “if the IJ decides a

noncitizen is eligible for cancellation of removal at step one,

his step-two discretionary determination on whether or not

to grant cancellation of removal in the particular case is not

reviewable as a question of law.” Wilkinson, 601 U.S. at

225 n.4. In other words, purely discretionary decisions, like

underlying factual determinations, remain unreviewable.

Gonzalez-Juarez, 2025 WL 1440220, at *3 n.2.

The overall jurisdictional rule that emerges is

straightforward. For challenges to the agency’s denial of

cancellation of removal or NACARA cancellation of

removal, we have jurisdiction over all constitutional claims

hardship, the unreviewable adverse-credibility determination may leave

little evidence of hardship for this court to consider.

16 LEMUS-ESCOBAR V. BONDI

and questions of law, including fact-intensive mixed

questions of law; we thus have jurisdiction over step-one

determinations of statutory eligibility. But we lack

jurisdiction over purely factual findings, such as an adverse

credibility determination or a finding of historical fact; and

we lack jurisdiction over purely discretionary

determinations, such as the agency’s step-two determination

that it would deny cancellation as a matter of discretion.

2. The Notice to Appear

Petitioner argues, as he did before the BIA, that the

agency lacked jurisdiction because the initial notice to

appear did not specify the time and place to appear, even

though Petitioner received that information in a later notice.

Our precedent forecloses that argument. United States v.

Bastide-Hernandez, 39 F.4th 1187, 1193–94 (9th Cir. 2022)

(en banc).

Before us, Petitioner also raises a new, non-jurisdictional

argument pertaining to the notice to appear. Because

Petitioner raised to the BIA only a jurisdictional argument

pertaining to the notice to appear, Petitioner failed to exhaust

the new argument. Umana-Escobar v. Garland, 69 F.4th

544, 550 (9th Cir. 2023). We therefore deny this portion of

the petition. Id.

3. Petitioner’s Competency

Competency for immigration purposes means having “a

rational and factual understanding of the nature and object

of the proceedings,” an ability to consult with one’s lawyer

or representative, and “a reasonable opportunity to examine

and present evidence and to cross-examine witnesses.”

Matter of M-A-M-, 25 I&N Dec. 474, 479 (BIA 2011). In

Matter of M-A-M-, the BIA set forth the applicable

LEMUS-ESCOBAR V. BONDI 17

framework for determining competency in immigration

proceedings, which stems from the due process rights of the

petitioner. Id. We have approved of, and applied, Matter of

M-A-M- in several cases. Salgado v. Sessions, 889 F.3d 982

(9th Cir. 2018); Calderon-Rodriguez v. Sessions, 878 F.3d

1179 (9th Cir. 2018); Mejia v. Sessions, 868 F.3d 1118 (9th

Cir. 2017).

A petitioner is presumed to be competent and, “[a]bsent

indicia of mental incompetency, an Immigration Judge is

under no obligation to analyze [a petitioner’s] competency.”

Matter of M-A-M-, 25 I&N Dec. at 477. But “[w]hen there

are indicia of incompetency, an Immigration Judge must

take measures to determine whether a [petitioner] is

competent to participate in proceedings.” Id. at 480.

“Indicia of incompetency include a wide variety of

observations and evidence,” including an inability to

understand questions, a high level of distraction, evidence of

mental illness or incompetency, medical reports or

assessments from past medical treatment related to

competency, and testimony of friends and family members

concerning that topic. Id. at 479–80. If indicia of

incompetency are present, the IJ must determine competency

and “must . . . articulate” the competency determination and

the IJ’s reasons. Id. at 481. If a petitioner lacks “sufficient

competency,” the IJ must consider imposing procedural

safeguards to ensure that the proceeding is fair. Id. at 481–

83.

Before the IJ, neither Petitioner nor his lawyer raised the

issue of competency, and the IJ did not address it sua sponte.

On appeal to the BIA, Petitioner’s new lawyer argued that

the IJ erred by failing to inquire into the issue. The BIA

rejected the argument, concluding that the record contained

no indicia of incompetency. Petitioner argues that the BIA

18 LEMUS-ESCOBAR V. BONDI

abused its discretion in concluding that the record contains

no indicia of incompetency.2

Whether the BIA permissibly concluded that the record

contains no indicia of incompetency asks whether a

particular set of facts meets a legal standard; accordingly, it

is a “question of law” for purposes of 8 U.S.C.

§ 1252(a)(2)(D). Wilkinson, 601 U.S. at 225. We therefore

have jurisdiction to review Petitioner’s argument. But the

question is a fact-intensive one that warrants deferential

review. Id. Reflecting that deference, we review for abuse

of discretion whether the BIA permissibly concluded that the

record contains no indicia of incompetency. Salgado, 889

F.3d at 987 (citing Mejia, 868 F.3d at 1121).

Petitioner points to the following facts in the record. He

suffered a significant head injury from a motorcycle accident

many years ago, causing a large scar on the back of his head.

That accident, along with past alcohol abuse, has damaged

his memory, causing what doctors described as “memory

loss,” “significant memory impairment,” and an “inability to

recall numerous events.” Doctors have diagnosed him with

memory disturbance; daily occipital headaches; and

Wernicke-Korsakoff Syndrome, a form of dementia. One

symptom of the Syndrome is “confabulation,” a tendency to

make up information that the person cannot recall. The

person is not lying in any meaningful sense; the person truly

believes the self-fabricated memory. Petitioner testified that

2

We reject Petitioner’s other two arguments concerning competency.

The BIA did not allocate the burden of proving competency

improperly. Nor is the BIA always required to remand competency

challenges to the IJ. Instead, as the BIA properly recognized, it must

determine whether the record contains “sufficient indicia of

incompetency such that remand is necessary for the [IJ] to conduct a

competency evaluation.”

LEMUS-ESCOBAR V. BONDI 19

one of his present-day doctors “wanted to do surgery on my

head, but I didn’t accept that.” Doctors also have diagnosed

him with mental illness, including anxiety and depression,

along with concentration difficulties. He takes a wide array

of prescription medications, including pain medications,

Xanax to treat anxiety and depression, and Donepezil, an

anti-dementia drug. He is disabled and unable to work. His

wife and son testified about his forgetfulness and his

“serious mental problems.” Petitioner gave confusing

testimony at times, and he was unable to understand some

questions. Indeed, at one point, the IJ opined that Petitioner

was simply “guessing,” rather than remembering.

Considering the totality of the circumstances, the BIA

abused its discretion by holding that the record contains

insufficient indicia of incompetence to mandate further

inquiry into competency by the IJ. It is true that each of

those pieces of evidence, by itself, may not trigger an IJ’s

duty to inquire into competency. For example, “there are

many types of mental illness that, even though serious,

would not prevent a [petitioner] from meaningfully

participating in immigration proceedings.” Matter of M-A-

M-, 25 I&N Dec. at 480. And the evidence does not mean

that Petitioner necessarily was incompetent. Moreover, the

standard of review—abuse of discretion—gives the BIA

some leeway in determining whether the record contains

sufficient indicia of incompetency.

But taken in the aggregate, the evidence in the record

clearly contains, at a minimum, indicia of incompetence

warranting further inquiry by the IJ pursuant to Matter of M-

A-M-. Each of the types of evidence described above is

precisely the type of evidence that Matter of M-A-M- held

can be an indicium of incompetence. See id. at 479–80 (“the

inability to understand and respond to questions,” “evidence

20 LEMUS-ESCOBAR V. BONDI

of mental illness,” “medical reports,” “evidence of

applications for disability benefits,” “testimony from . . .

family members”). The indicia of incompetence here—head

trauma, severe alcohol abuse, dementia, anxiety, depression,

memory disturbance, significant medical prescriptions,

testimony by family members about forgetfulness and

mental problems, an inability to work due to disability, some

confusing testimony, and an inability to understand some

questions—plainly warranted further inquiry by the IJ

pursuant to Matter of M-A-M-.

The BIA concluded otherwise primarily because

Petitioner testified “coherently” during part of his testimony.

But, as the BIA acknowledged, Petitioner’s testimony was

far from coherent when testifying—at length—about two

key topics: the events surrounding his 1988 crime and the

circumstances of his signing a declaration. Given the

extensive and varied evidence of potential incompetence, the

BIA’s conclusion that the record contains no indicia of

incompetency was irrational. We therefore hold that the BIA

abused its discretion.

Caselaw supports our conclusion. In Mejia, we held that

the BIA abused its discretion by not remanding the matter to

the IJ, where the petitioner had fairly significant mental

illness. 868 F.3d at 1121–22. We reasoned:

Here, there were clear indicia of Petitioner’s

incompetency. He has a history of serious

mental illness, including hallucinations,

bipolar disorder, and major depression with

psychotic features. During hearings before

the IJ, Petitioner testified that he was not

taking his medications and was feeling

unwell. He said he was experiencing

LEMUS-ESCOBAR V. BONDI 21

symptoms of mental illness and felt a “very

strong pressure” in his head. He had

difficulty following the IJ’s questions, and

many of his responses were confused and

disjointed. Under In re M-A-M-, those

indicia triggered the IJ’s duty to explain

whether Petitioner was competent and

whether procedural safeguards were needed.

Id. In some ways, the evidence of incompetency in this case

is not quite as extreme as the evidence in Mejia, because the

petitioner in Mejia suffered from more significant mental

illness. But, in other ways, the evidence of incompetency

here is greater; the evidence such as past head trauma, a form

of dementia that leads to fabricated memories, and testimony

by family members of mental issues is more varied than in

Mejia. Either way, here, just as in Mejia, the record contains

“clear indicia of Petitioner’s incompetency” such that the

BIA abused its discretion in concluding that the record

contained no indicia of incompetency. Id. at 1121.

Petitioner was represented by counsel before the IJ, but

that fact does not resolve whether the record contains indicia

of incompetency warranting further proceedings. The

petitioner in Mejia, too, was represented by counsel before

the IJ, but we concluded that the BIA had abused its

discretion. Id. at 1120–21. Whether or not the petitioner has

counsel, the BIA has placed an affirmative duty on the IJ to

make a competency determination whenever the record

contains sufficient indicia of incompetency.3 Matter of M-

A-M-, 25 I&N Dec. at 479–80.

3

In other circumstances, it might be troubling that Petitioner’s lawyer

failed to raise the issue of competency before the IJ, only to raise the

22 LEMUS-ESCOBAR V. BONDI

In arguing to the contrary, the government leans heavily

on Salgado, where we held that the BIA had not erred in

upholding the IJ’s determination that the petitioner was

competent. 889 F.3d at 987–89. In that case, the petitioner’s

only potential indicium of incompetency was that he had

been involved in a minor car collision—the police were not

called, the damage to the cars was minimal, he suffered no

physical injuries and did not go to the hospital, and he did

not tell his lawyer about the incident. Id. at 985–86. The

petitioner stated that he was a little confused and was having

some memory problems after the accident. Id. We held that

“[t]his is a case of poor memory at the most.” Id. at 988.

“The mere inability to recall some events, a common

weakness, and other similar mental lapses, are not sufficient

to show mental incompetency.” Id. at 989.

This case differs greatly from Salgado, both procedurally

and factually. Procedurally, and by contrast to the IJ’s

determination in Salgado that the petitioner was competent,

the IJ here never made a finding of competency. On the

facts, Petitioner presented extensive medical evidence of

significant diagnoses and prescriptions, along with

testimony by family members, whereas the petitioner in

Salgado presented no medical evidence at all and no

testimony from family members. Unlike the minor car

collision at issue in Salgado, the motorcycle crash here

resulted in a head injury and a large scar, and Petitioner

engaged in severe alcohol abuse for years, causing a form of

issue on appeal to the BIA; that tactic could be seen as gamesmanship.

Here, though, Petitioner hired a new lawyer after proceedings with the

IJ, and that lawyer spotted the issue when reviewing the record.

Everyone—including the IJ and the government’s lawyer—can avoid

the potential inefficiency of a remand by noticing the issue during

proceedings before the IJ and by requesting an evaluation.

LEMUS-ESCOBAR V. BONDI 23

dementia and medically diagnosed memory impairment. In

short, this is not a simple case of poor memory.

A failure to remand to the IJ can be harmless. Id. The

government here wisely does not argue that any error here is

harmless, likely because the record demonstrates that, had

the IJ followed procedural safeguards, the outcome may

have been different. For example, had the IJ verified with

Petitioner that he truly intended to withdraw his claims of

asylum, withholding of removal, and CAT relief, Petitioner

may have told the IJ that his lawyer was mistaken. As

another example, had the IJ been sensitive to Petitioner’s

medical conditions, the IJ may have taken steps to ensure

that Petitioner was not, as the IJ speculated, merely

“guessing.” (Instead, the IJ found his confusing testimony

not credible and ultimately denied discretionary relief due to

Petitioner’s lack of remorse and lack of forthright

testimony.) In any event, the government has forfeited any

argument about harmlessness. Iraheta-Martinez v. Garland,

12 F.4th 942, 959 (9th Cir. 2021).

We hold that the BIA abused its discretion by declining

to remand to the IJ for a competency determination. We

therefore grant this portion of the petition and remand for

further proceedings. For efficiency, we address the

remaining arguments presented by Petitioner, on the

assumption that Petitioner was competent. Should the IJ

determine that Petitioner’s condition warrants procedural

safeguards pursuant to Matter of M-A-M-, we leave it to the

agency to determine, in the first instance, the effect of that

ruling on the forms of relief sought by Petitioner and on the

issues raised in the motion to reopen.

24 LEMUS-ESCOBAR V. BONDI

4. Asylum, Withholding of Removal, and CAT Relief

Petitioner submitted an asylum application in 1992, but

Petitioner’s lawyer withdrew that application during a

hearing in 2017. The IJ noted that Petitioner had withdrawn

that application. On appeal to the BIA, Petitioner argued that

the IJ erred by failing to reach the merits of the asylum

application. The BIA disagreed, noting that the record

contained no evidence that Petitioner’s lawyer did not

discuss the withdrawal with him or that Petitioner “was

unaware of or opposed to the withdrawal.” Petitioner

challenges that determination under several headings,

including due process.

Assuming that Petitioner was competent, we reject

Petitioner’s argument under any standard of review. In

2017, Petitioner’s lawyer expressly stated on the record that

the asylum application was “withdrawn.” The IJ

immediately asked, “Withdrawn?” and Petitioner’s lawyer

responded, “Yes.” Petitioner generally is bound by the acts

of his lawyer. Garcia v. INS, 222 F.3d 1208, 1209 (9th Cir.

2000) (per curiam). Moreover, during the merits hearings,

Petitioner did not present any significant testimony or other

evidence in favor of his application for asylum or related

relief. The testimony and the focus of the merits hearings

were on Petitioner’s applications for cancellation of removal

and NACARA cancellation of removal. In the

circumstances, the BIA permissibly concluded that

Petitioner had withdrawn the asylum application.

5. Cancellation of Removal

To be statutorily eligible for cancellation of removal,

Petitioner must prove that he has not been convicted of a

crime involving moral turpitude. 8 U.S.C.

§§ 1229b(b)(1)(C), 1182(a)(2)(A)(i)(I); Flores-Vasquez v.

LEMUS-ESCOBAR V. BONDI 25

Garland, 80 F.4th 921, 924 (9th Cir. 2023). The BIA held

that Petitioner’s conviction under California Penal Code

section 246, for shooting a firearm at an inhabited dwelling,

categorically qualified as a crime involving moral turpitude.

The BIA accordingly upheld the denial of cancellation of

removal. Petitioner challenges that conclusion on appeal.

Whether a state statute categorically defines a crime

involving moral turpitude is a question of law that we review

de novo. Walcott v. Garland, 21 F.4th 590, 593 (9th Cir.

2021). We therefore have jurisdiction to review the BIA’s

determination. 8 U.S.C. § 1252(a)(2)(D).

In some circumstances in the past, we deferred, pursuant

to Chevron USA v. Natural Resources Defense Council,

Inc., 467 U.S. 837 (1984), to the agency’s assessment of

whether a crime involves moral turpitude. E.g., Silva v.

Garland, 993 F.3d 705, 713 (9th Cir. 2021). Just last year,

the Supreme Court overruled Chevron in Loper Bright

Enterprises v. Raimondo, 603 U.S. 369 (2024). For the

reasons that follow, however, we conclude that Loper Bright

has no effect on our analysis here.

When assessing whether a state crime categorically

involves moral turpitude, we first “identify the elements of

the statute of conviction.” Safaryan v. Barr, 975 F.3d 976,

983–84 (9th Cir. 2020) (citations and internal quotation

marks omitted). We have always reviewed this legal

question de novo, without any deference to the agency.

Barrera-Lima v. Sessions, 901 F.3d 1108, 1114 (9th Cir.

2018). Loper Bright thus has no effect on this step of the

analysis.

California Penal Code section 246 punishes “[a]ny

person who shall maliciously and willfully discharge a

firearm at an inhabited dwelling house, occupied building,

26 LEMUS-ESCOBAR V. BONDI

occupied motor vehicle, occupied aircraft, inhabited

housecar, . . . or inhabited camper.” Cal. Penal Code § 246.

The statute defines “inhabited” as “currently being used for

dwelling purposes, whether occupied or not.” Id. The

requisite state of mind is recklessness with respect to hitting

a target, but it requires intentionally (“maliciously and

willfully”) shooting a firearm. Covarrubias Teposte v.

Holder, 632 F.3d 1049, 1053–54 (9th Cir. 2011). The statute

requires, at a minimum, that the perpetrator “intentionally

discharged a gun with reckless disregard as to whether the

bullet would hit an inhabited vehicle or dwelling.” Id. at

1054. The statute “proscribes shooting either directly at or

in close proximity to an inhabited or occupied target under

circumstances showing a conscious disregard for the

probability that one or more bullets will strike the target or

persons in or around it.” People v. Overman, 24 Cal. Rptr.

3d 798, 805 (Ct. App. 2005).

Having defined the elements of the state statute, we next

ask whether the offense “falls within the generic federal

definition of a crime involving moral turpitude.” Safaryan,

975 F.3d at 985 (alteration adopted) (citation and internal

quotation marks omitted). “To involve moral turpitude, a

crime requires two essential elements: reprehensible

conduct and a culpable mental state.” Matter of Silva-

Trevino, 26 I&N Dec. 826, 834 (BIA 2016). We have

adopted that definition as our own, independent of any

deference to the agency. See Safaryan, 975 F.3d at 981

(holding that Chevron deference “is ultimately of ‘no

practical significance,’ because ‘we have noted that our

understanding of the phrase does not differ materially from

the BIA’s’” (quoting Marmolejo-Campos v. Holder, 558

F.3d 903, 910 (9th Cir. 2009) (en banc))) (alterations

LEMUS-ESCOBAR V. BONDI 27

adopted). For that reason, Loper Bright has no effect on the

general definition of moral turpitude.

We consider the actus reus and the mens rea “in concert”

and on “a sliding scale.” Id. at 981–82. For a more

egregious actus reus, a lesser mens rea suffices; and for a

more intentional mens rea, a lesser actus reus suffices. Id.

But there are minimum requirements for both aspects: in

general, a recklessness mens rea and some reprehensible

conduct are required. Id. at 982. “[W]e presume the

conviction rested upon nothing more than the least of the acts

criminalized.” Ramirez-Contreras v. Sessions, 858 F.3d

1298, 1302 (9th Cir. 2017).

Most of the crimes involving this flavor of moral

turpitude have, as an element, a direct risk to the safety of a

person. See, e.g., Leal v. Holder, 771 F.3d 1140, 1146 (9th

Cir. 2014) (evaluating a statute that required proof of actual

and substantial risk of imminent death). Indeed, we have

summarized that “non-fraudulent crimes of moral turpitude

almost always involve an intent to harm someone, the actual

infliction of harm upon someone, or an action that affects a

protected class of victim.” Nunez v. Holder, 594 F.3d 1124,

1131 (9th Cir. 2010), superseded in other part as stated in

Betansos v. Barr, 928 F.3d 1133, 1135–36 (9th Cir. 2019).

But, although most turpitudinous crimes have an element of

an intent to harm or substantial risk of harm, not all

turpitudinous crimes do—a point that we have stated

expressly. See id. at 1131 n.4 (“We do not suggest that every

crime that has been held by us to involve moral turpitude

falls within this grouping. There are a number of exceptions

or outliers.”); see also Murillo-Chavez v. Bondi, 128 F.4th

1076, 1088–89 (9th Cir. 2025) (holding that a “specific

intent to cause harm ‘is not required for a crime to involve

moral turpitude’” (quoting United States v. Santacruz, 563

28 LEMUS-ESCOBAR V. BONDI

F.3d 894, 897 (9th Cir. 2009) (per curiam))). The relevant

test examines the mens rea and actus reus in concert to

determine the overall culpability required by the crime.

Safaryan, 975 F.3d at 981.

Before Loper Bright, we applied Chevron deference to a

BIA’s published decision concerning what crimes involve

moral turpitude. Lopez v. Garland, 116 F.4th 1032, 1039

(9th Cir. 2024). Now, whether or not the BIA published its

decision, “our task is to evaluate the statute independently

under Skidmore[ v. Swift & Co, 323 U.S. 134 (1944)],

giving ‘due respect,’ but not binding deference[,] to the

agency’s interpretation.” Id. (citation omitted). We

therefore apply Skidmore deference here.4 The weight given

to an agency’s interpretation under Skidmore depends on the

thoroughness, consistency, and persuasiveness of the

decision itself. See id. (summarizing Skidmore deference).

“[W]e have upheld BIA interpretations under Skidmore

when the BIA confronted an issue germane to the eventual

resolution of the case and resolved it after reasoned

consideration.” Id. (all alterations adopted) (citations and

internal quotation marks omitted).

Looking first to the mens rea, the statute requires an

intentional shooting, “an elevated mens rea.” Moran v. Barr,

960 F.3d 1158, 1162 (9th Cir. 2020). With respect to hitting

a building or person, though, the statute requires only

recklessness, the lowest possible mens rea that could qualify

4

The continuing vitality of some of our precedents is in doubt because

they rested on deference to the agency under Chevron, which is no

longer the appropriate framework. We need not address whether our

precedents remain good law because we conclude independently,

without reliance on our precedents at this step, that Petitioner was

convicted of a crime involving moral turpitude.

LEMUS-ESCOBAR V. BONDI 29

as a crime involving moral turpitude. Safaryan, 975 F.3d at

982.

Looking next to the actus reus, Petitioner emphasizes

that the statute requires neither harm to a person nor an intent

to harm nor even a reckless disregard of the probability of

harming a person. Considering the least of the acts required

by the statute for a conviction, the perpetrator could target

an unoccupied, albeit “inhabited,” building, and the

perpetrator could recklessly disregard the risk of harming the

building itself, rather than harming a person.

The California courts convincingly have explained why

a conviction for violating section 246 necessarily entails a

substantial risk of bodily harm. The California Court of

Appeal rejected, as “disingenuous,” the same argument

advanced by Petitioner here: that, “since a person could be

convicted of Penal Code section 246 by shooting at a

building which was actually unoccupied at the time the shot

was fired, the least adjudicated element would simply

consist of maliciously shooting at an unoccupied building

without the intent or likelihood of committing serious bodily

injury.” People v. White, 6 Cal. Rptr. 2d 259, 261 (Ct. App.

1992). The court reasoned:

It is elementary, yet essential to this analysis,

to note that inhabited is defined as “lived in.”

By definition then, inhabitants are generally

in or around the premises. From this, we can

readily perceive the inherent danger in one

firing a weapon at an inhabited dwelling.

Such an act is done with reckless disregard of

30 LEMUS-ESCOBAR V. BONDI

probable consequences (someone being

struck).

Id. (citations omitted). The California Supreme Court

followed the same reasoning in concluding that the crime

“inherently involves a danger to human life.” People v.

Hansen, 885 P.2d 1022, 1027 (Cal. 1994), overruled in other

part by People v. Chun, 203 P.3d 425, 442 (Cal. 2009).

In firing a gun at [an inhabited house], there

always will exist a significant likelihood that

an occupant may be present. Although it is

true that a defendant may be guilty of this

felony even if, at the time of the shooting, the

residents of the inhabited dwelling happen to

be absent, the offense nonetheless is one that,

viewed in the abstract—as shooting at a

structure that currently is used for dwelling

purposes—poses a great risk . . . of death.

Id. (internal citation omitted); see also Chun, 203 P.3d at 434

(“[S]hooting at an ‘inhabited dwelling house’ under section

246 is inherently dangerous even though the inhabited

dwelling house does not have to be actually occupied at the

time of the shooting.”).

Relatedly, we note that a conviction requires the

shooting of a deadly weapon. We repeatedly have held that

“the ‘use of a deadly or dangerous weapon or instrument’

has been treated as a significant aggravating factor in

assessing moral turpitude [because] it ‘magnifies the danger

posed by the perpetrator and demonstrates his or her

heightened propensity for violence and indifference to

human life.’” Safaryan, 975 F.3d at 988 (quoting Matter of

LEMUS-ESCOBAR V. BONDI 31

Wu, 27 I&N Dec. 8, 11 (BIA 2017)). We do not suggest that

every crime committed by using a deadly weapon

necessarily involves moral turpitude. But it is undeniably an

aggravating factor, particularly here because the statute

requires an intentional shooting.

Putting it all together, California Penal Code section 246

requires an intentional shooting of a firearm, that is, the use

of a deadly weapon, in circumstances that necessarily pose a

significant risk of bodily harm to another. We hold that the

BIA correctly concluded that section 246 categorically

qualifies as a crime involving moral turpitude. Accordingly,

the BIA did not err in denying cancellation of removal.

6. NACARA Cancellation of Removal

Petitioner forfeited and then affirmatively waived any

challenge to the BIA’s denial of NACARA cancellation of

removal. In his opening brief, Petitioner failed to challenge

the denial of NACARA relief, thus forfeiting the issue.

Iraheta-Martinez, 12 F.4th at 959. Then, after the

government pointed out the forfeiture, Petitioner

emphatically disclaimed any challenge to NACARA relief:

“Lemus does not petition for review of the NACARA

denial.” Petitioner’s Reply Brief at 3 (bold emphasis in

original). We conclude that no discretionary exception to

forfeiture or waiver is warranted here. We therefore do not

consider the BIA’s initial denial of NACARA cancellation

of removal.5

5

Because credibility pertained solely to the BIA’s denial of NACARA

cancellation of removal, we also do not address Petitioner’s arguments,

some of which he casts as legal challenges, concerning the agency’s

adverse-credibility determination.

32 LEMUS-ESCOBAR V. BONDI

B. The BIA’s Denial of Reopening in 2019

We address the following issues related to the BIA’s

denial of reopening: (1) our jurisdiction; (2) NACARA

cancellation of removal; and (3) asylum, withholding of

removal, and CAT protection.

1. Our Jurisdiction

As with review of the initial denial of relief, the Supreme

Court’s recent cases have affected our jurisdiction over

challenges to the BIA’s denial of a motion to reopen an

application for cancellation of removal. Once again, we

clarify our jurisdiction at the outset.

Congress authorized motions to reopen proceedings. 8

U.S.C. § 1229a(c)(7)(A). “The motion to reopen is an

important safeguard intended to ensure a proper and lawful

disposition of immigration proceedings.” Kucana v. Holder,

558 U.S. 233, 242 (2010) (citations and internal quotation

marks omitted). “The motion to reopen shall state the new

facts that will be proven at a hearing to be held if the motion

is granted, and shall be supported by affidavits or other

evidentiary material.” 8 U.S.C. § 1229a(c)(7)(B). A motion

generally must be filed within 90 days of the entry of a final

order of removal. Id. § 1229a(c)(7)(C)(i).

The BIA may deny a motion to reopen for three reasons:

(a) if the motion is deficient for a preliminary procedural

reason, such as untimeliness or a failure to attach new

evidence; (b) if the motion does not establish a prima facie

case for the underlying relief sought; or (c) if the BIA

determines that, even if a prima facie case is established for

a form of discretionary relief, the BIA nevertheless would

LEMUS-ESCOBAR V. BONDI 33

deny relief as a matter of discretion.6 Fernandez, 439 F.3d

at 599; INS v. Abudu, 485 U.S. 94, 104–05 (1988).

Our defining precedent in this context was our 2006

ruling in Fernandez, 439 F.3d 592, which arose from a denial

of reopening of an application for cancellation of removal.

We are guided as well by the relevant statutory provisions

and the Supreme Court’s recent decisions. As we detailed in

Part A-1, 8 U.S.C. § 1252(a)(2)(B)(i) provides that we lack

jurisdiction over “any judgment regarding the granting of”

several forms of relief, including cancellation of removal,

and the Supreme Court gave an expansive interpretation of

that phrase in Patel, 596 U.S. at 338–39. But

§ 1252(a)(2)(D) grants jurisdiction over all constitutional

questions and “questions of law,” including all mixed

questions of fact and law, no matter how fact-intensive,

Wilkinson, 601 U.S. at 225.

a. Preliminary Procedural Denial

In Fernandez, we held that we have jurisdiction when

“the agency’s denial of a motion to reopen applies a

procedural statute, regulation, or rule.” 439 F.3d at 602. We

agree with that result, though our reasoning in light of recent

Supreme Court decisions is much more straightforward. A

ruling by the BIA that the facts do not meet the legal

requirements of a particular procedural statute or regulation

is a “question[] of law,” 8 U.S.C. § 1252(a)(2)(D), over

6

Because the BIA cannot find facts, 8 C.F.R. § 1003.1(d)(3)(iv);

Rodriguez v. Holder, 683 F.3d 1164, 1173 (9th Cir. 2012), the potential

jurisdictional bar on purely factual findings does not arise in a BIA’s

denial of a motion to reopen, see Figueroa Ochoa, 91 F.4th at 1293

(holding, in a case challenging the IJ’s denial of a continuance and the

BIA’s denial of a remand, that we lack jurisdiction over purely factual

findings by an IJ).

34 LEMUS-ESCOBAR V. BONDI

which we have jurisdiction. Wilkinson, 601 U.S. at 225. We

therefore have jurisdiction.

The BIA’s determination here—that certain evidence is

not “new”—clearly constitutes a decision that a particular set

of facts does not meet a legal standard. The set of facts

includes the circumstances of the BIA’s original decision

and the origin and discovery of the proffered evidence. The

legal standard is whether the evidence is “new,” as that term

was used by Congress, 8 U.S.C. § 1229a(c)(7)(B), and as

that term has been interpreted by the agency in its

regulations, 8 C.F.R. § 1003.2(c)(1). Whether the facts meet

the legal standard is a “question[] of law” under §

1252(a)(2)(D). Wilkinson, 601 U.S. at 225. We therefore

have jurisdiction to review a BIA’s denial of a motion to

reopen on the ground that the proffered evidence is not

“new.” See also Mata v. Lynch, 576 U.S. 143, 148 (2015)

(holding that courts have jurisdiction over a BIA’s

preliminary ruling that a motion to reopen is untimely or

“falls short in some other respect”); Kucana, 558 U.S. at

242–53 (holding that courts have jurisdiction over the BIA’s

preliminary ruling that the petitioner failed to establish

changed country conditions to excuse the procedural defects

in a second motion to reopen); Magana-Magana v. Bondi,

129 F.4th 557, 566–71 (9th Cir. 2025) (concluding that we

have jurisdiction to review whether “extraordinary

circumstances” excused a late motion to reopen).

b. Prima Facie Case of Statutory Eligibility

For the same reasons, we conclude that we also have

jurisdiction to review the second category of denials. The

BIA’s determination that the evidence, accepted as true, does

not establish a prima facie case for relief constitutes a

decision that a particular set of facts does not meet a legal

LEMUS-ESCOBAR V. BONDI 35

standard. The set of facts includes the proffered evidence,

accepted as true, and the remaining evidence in the record.

The legal standard is two-fold: a petitioner must establish a

prima facie case, which means a “reasonable likelihood that

the statutory requirements for relief have been satisfied,”

Salim v. Lynch, 831 F.3d 1133, 1139 (9th Cir. 2016)

(citation and internal quotation marks omitted); and the

eligibility requirements for the specific type of relief sought

provide the underlying legal standards. For example, here,

Petitioner sought to reopen the application for NACARA

cancellation of removal, so he had to establish a reasonable

likelihood, id., of demonstrating physical presence for ten

years, good moral character, and the requisite hardship, 8

C.F.R. § 1240.66(c). Accordingly, we have jurisdiction to

review a BIA’s denial of a motion to reopen on the ground

that a petitioner failed to establish a prima facie case of

statutory eligibility for relief.

In Fernandez, we engaged in a lengthy discussion about

whether we had jurisdiction to review denials of this sort,

ultimately concluding that we had jurisdiction over most—

but not all—challenges to these denials. 439 F.3d at 599–

603; see also id. at 596–99 (describing at length the

background statutory and case law). The reason for the

complexity was our starting premise that a step-one hardship

determination was a discretionary judgment over which we

lacked jurisdiction. Id. at 596. But Wilkinson overruled that

starting premise by, as we have explained, clarifying that

whether a particular set of facts meets a statutory eligibility

requirement is a question of law, not a discretionary

judgment. 601 U.S. at 222.

Because Fernandez’s reasoning is clearly irreconcilable

with Wilkinson, we recognize, as overruled, Fernandez’s

holding concerning our jurisdiction over challenges to the

36 LEMUS-ESCOBAR V. BONDI

BIA’s denial of reopening with respect to statutory

eligibility. Miller, 335 F.3d at 893. After the Supreme

Court’s recent decisions, we have jurisdiction to review a

decision by the BIA that the petitioner failed to present a

prima facie case of statutory eligibility. See Martinez v.

Garland, 98 F.4th 1018, 1020–21 (10th Cir. 2024) (holding

that the court had jurisdiction to review the BIA’s denial of

reopening, where the BIA ruled that the petitioner failed to

establish a prima facie case of statutory eligibility for

cancellation of removal); Cruz-Velasco v. Garland, 58 F.4th

900, 902–03 (7th Cir. 2023) (same); Llanas-Trejo v.

Garland, 53 F.4th 458, 461–62 (8th Cir. 2022) (same).

c. Discretionary Denial

The final category of denial is a determination by the

BIA that, accepting the facts as true and assuming that the

petitioner is statutorily eligible for a discretionary form of

relief such as NACARA cancellation of removal, the

petitioner has not established that the BIA would likely

change its discretionary denial. In Fernandez, we held that

courts lack jurisdiction over this category of denials because

such decisions are judgments relating to the granting of

discretionary relief pursuant to § 1252(a)(2)(B)(i). 439 F.3d

at 599 n.5.

Fernandez remains good law in that respect because its

holding is not clearly irreconcilable with any of the Supreme

Court’s later cases. Miller, 335 F.3d at 899–900. To the

contrary, the Court’s later decision in Patel supports

Fernandez’s holding. Patel emphasized the expansive scope

of § 1252(a)(2)(B)(i)’s stripping of jurisdiction over “any

judgment regarding the granting of” discretionary relief such

as cancellation of removal. 596 U.S. at 338–39. A

discretionary judgment regarding the granting of

LEMUS-ESCOBAR V. BONDI 37

cancellation that causes the denial of a motion to reopen

likely remains a judgment regarding the granting of

cancellation. See id. at 339 (holding that Ҥ 1252(a)(2)(B)(i)

encompasses not just ‘the granting of relief’ but also any

judgment relating to the granting of relief”); see also

Figueroa Ochoa, 91 F.4th at 1294 (holding, primarily

because of Patel, that § 1252(a)(2)(B)(i) encompasses the

denial of a continuance and the denial of a remand where the

underlying relief sought was one of the five statutory

provisions listed in § 1252(a)(2)(B)(i)).

That conclusion is confirmed by the rule that, where the

immigration statutes provide the BIA unbounded discretion

to deny relief, we have no meaningful legal standard to

apply. See, e.g., Medina-Morales v. Ashcroft, 371 F.3d 520,

528 (9th Cir. 2004) (referring to decisions of this sort as an

exercise of “pure discretion unguided by legal standards or

statutory guidelines”); see also Ekimian v. INS, 303 F.3d

1153, 1159 (9th Cir. 2002) (holding that we lack jurisdiction

to review the BIA’s denial of sua sponte reopening because

“we cannot discover a sufficiently meaningful standard

against which to judge the BIA’s decision not to reopen”).

For the same reason, the BIA’s discretionary judgment

call is not a “question of law” for the purpose of

§ 1252(a)(2)(D). The BIA considers whether the new

evidence “would likely change” its original determination

that discretionary relief was unwarranted. Fonseca-Fonseca

v. Garland, 76 F.4th 1176, 1181 (9th Cir. 2023). The “would

likely change” standard is a legal one, but is incomplete on

its own. The full inquiry is whether the evidence would

likely change the BIA’s purely discretionary judgment. We

have no meaningful ability to review that judgment, and it

falls outside the scope of § 1252(a)(2)(D).

38 LEMUS-ESCOBAR V. BONDI

In Kucana, the Supreme Court held, in a case involving

untimeliness, that courts generally have jurisdiction to

review the BIA’s denial of reopening. 558 U.S. at 242–53;

see also Mata, 576 U.S. at 147–48 (reaffirming, in a context

divorced from § 1252(a)(2)(B)(i), Kucana’s holding that

courts generally have jurisdiction to review denials of

reopening due to untimeliness). But the Court expressly left

open the question “whether review of a reopening denial

would be precluded if the court would lack jurisdiction over

the [petitioner’s] underlying claim for relief.” Kucana, 558

U.S. at 250 n.17. Here, we would lack jurisdiction over a

decision by the BIA that, as a matter of discretion, Petitioner

does not warrant NACARA cancellation of removal.

Wilkinson, 601 U.S. at 222. Neither Kucana nor any other

intervening case is clearly irreconcilable with Fernandez’s

holding that we lack jurisdiction over this category of

denials.

In sum, we lack jurisdiction over a BIA’s denial of

reopening on the ground that it would deny cancellation of

removal as a matter of discretion. We reiterate that we

always retain jurisdiction to review constitutional claims and

questions of law. 8 U.S.C. § 1252(a)(2)(D). Even where the

BIA states that it would deny relief as a matter of discretion,

we retain jurisdiction over legal arguments that the BIA, for

example, applied the wrong preliminary law, failed to accept

the proffered evidence as true, or misapplied its regulations.

Cf. Fonseca-Fonseca, 76 F.4th at 1181–83 (reviewing

whether the BIA applied the correct legal standard when it

asked whether the new evidence “would likely change” its

decision on statutory eligibility). We lack jurisdiction only

over the BIA’s purely discretionary judgment that it would

deny relief as a matter of discretion. See Moreno v. Garland,

51 F.4th 40, 47 (1st Cir. 2022) (holding, in a case involving

LEMUS-ESCOBAR V. BONDI 39

a discretionary denial of reopening, that “because we cannot

discern any error of law in the BIA’s explanation of its

conclusion, we have no authority to review the BIA’s

exercise of discretion”).

d. Summary

In a case where the petitioner seeks to reopen

applications for cancellation of removal, NACARA

cancellation of removal, or other forms of relief listed in

§ 1252(a)(2)(B)(i), we conclude as follows.7 We have

jurisdiction over a denial for a preliminary procedural reason

and over a denial on the ground that the petitioner has not

established a prima facie case of statutory eligibility for

relief. But we lack jurisdiction when the BIA rules that the

petitioner failed to establish that the new evidence would

likely change the BIA’s determination that the petitioner

does not warrant a favorable exercise of discretion. We

always retain jurisdiction over constitutional claims and

questions of law.

2. NACARA Cancellation of Removal

The BIA originally denied NACARA cancellation of

removal for two alternative reasons: because Petitioner

failed to establish the requisite hardship and because, even if

he met the statutory eligibility requirements, he does not

warrant a favorable exercise of discretion. In his motion to

reopen this claim, Petitioner submitted extensive documents,

including medical evidence of his own health conditions,

7

Although we expect these rules to apply in nearly all cases, additional

considerations may come into play in other cases, such as jurisdictional

bars found in 8 U.S.C. § 1252(a)(2)(A), (B)(ii), & (C). Cf. Bouarfa v.

Mayorkas, 604 U.S. 6, 9 (2025) (holding that § 1252(a)(2)(B)(ii)

precludes judicial review of revocation of a visa approval). We do not

reach those issues.

40 LEMUS-ESCOBAR V. BONDI

medical evidence of his wife’s health conditions, and

declarations from family members. Petitioner asserted that

the evidence tipped the scales with respect to both hardship

and discretion.

The BIA denied reopening. The BIA first held that much

of the evidence was not “new” within the meaning of the

statute. But the BIA also held, in the alternative, that

Petitioner had not met his burden of establishing that the

evidence would likely change the BIA’s denial of relief as a

matter of discretion.

Applying the analysis in Part B-1, above, we reach the

following conclusions as to our jurisdiction. The BIA’s

ruling that some of the evidence was not new presents a

mixed question of fact and law over which we have

jurisdiction. Wilkinson, 601 U.S. at 212. But we need not,

and do not, reach that question, because we lack jurisdiction

to review the BIA’s alternative, dispositive holding that it

would deny NACARA relief as a matter of discretion.

Fernandez, 439 F.3d at 599 n.5. Even if the BIA erred in

ruling that some evidence was not new, that conclusion

would have no effect on the BIA’s alternative denial as a

matter of discretion, which considered all the evidence.

Petitioner does raise a legal argument over which we

have jurisdiction: he argues that, when making its

discretionary judgment, the BIA failed to consider the

evidence in the aggregate. See Franco-Rosendo v. Gonzales,

454 F.3d 965, 966 (9th Cir. 2006) (holding that the BIA must

consider the evidence cumulatively in making a

discretionary determination). We reject that claim as

unsupported by the record. Nothing suggests that the BIA

disregarded any evidence or otherwise misapplied the law.

See Kohli v. Gonzales, 473 F.3d 1061, 1068 (9th Cir. 2007)

LEMUS-ESCOBAR V. BONDI 41

(holding that the BIA is presumed to apply the law

correctly).

In sum, in assessing the motion to reopen the NACARA

application, the BIA committed no legal error, and we lack

jurisdiction to review the BIA’s discretionary denial of

relief. See Moreno, 51 F.4th at 47 (“[B]ecause we cannot

discern any error of law in the BIA’s explanation of its

conclusion, we have no authority to review the BIA’s

exercise of discretion.”).

3. Asylum, Withholding of Removal, and CAT Relief

The BIA originally declined to consider Petitioner’s

applications for asylum, withholding, and CAT relief. The

BIA held Petitioner to his first lawyer’s express withdrawal

of those applications, noting that Petitioner had not

submitted a declaration that his lawyer had erred. In his

motion to reopen, Petitioner attached a declaration that he

never authorized his lawyer to withdraw those applications

and evidence that he filed a complaint with the California

State Bar. Concerning his fear of harm, he submitted a

declaration and evidence of conditions in Guatemala.

The BIA acknowledged that Petitioner had now

complied with the procedural requirements of Matter of

Lozada, 19 I&N Dec. 637 (BIA 1988), concerning his

original lawyer’s ineffectiveness. But the BIA denied

reopening of these claims for two reasons: failure to submit

“new” evidence that was not previously available, 8 U.S.C.

§ 1229a(c)(7)(B), 8 C.F.R. § 1003.2(c)(1); and, even

accepting the evidence, failure to establish a prima facie

case.

The BIA legally erred in its evidentiary ruling. Petitioner

hired his current lawyer after the hearings before the IJ had

42 LEMUS-ESCOBAR V. BONDI

concluded. The BIA held that the evidence of Petitioner’s

lawyer’s ineffectiveness could have been discovered after

the merits hearings but before the appeal to the BIA;

accordingly, the evidence was not “new.” That ruling is

contrary to law:

[B]oth the statute and the regulation indicate

that the evidence must not have been

available to be presented “at the former

hearing.” 8 U.S.C. § 1229a(c)(6)(B); 8

C.F.R. § 1003.2(c)(1). The proffered

testimony concerns events that happened

after the “former hearing” before the IJ. The

government’s argument that the information

was previously available because it became

available during the pendency of the appeal

to the Board does not comport with the statute

and regulation.

Bhasin v. Gonzales, 423 F.3d 977, 987 (9th Cir. 2005)

(emphasis omitted).8 Bhasin controls here. The BIA erred

as a matter of law by ruling that the evidence was not new

because it became available after the hearing before the IJ.

8

The statute no longer contains the “at the former hearing” wording,

requiring instead only the assertion of “new facts.” 8 U.S.C.

§ 1229a(c)(7)(B). The regulation continues to define that term as

evidence that “could not have been discovered or presented at the

former hearing.” 8 C.F.R. § 1003.2(c)(1) (emphasis added). The

government accordingly does not argue that Bhasin is no longer good

law. To the contrary, the government affirmatively states, after quoting

the relevant regulatory text, that “[t]he statutory language requiring

‘new facts’ does not abrogate the preexisting regulatory requirement

that appropriately elaborates on what that means.” Gov’t’s Response

Brief at 62.

LEMUS-ESCOBAR V. BONDI 43

We therefore consider the BIA’s alternative ruling that

Petitioner failed to establish a prima facie case of statutory

eligibility. Petitioner expressed a fear of harm from

guerrillas and drug traffickers due to events that occurred in

the early 1980s, and he asserted that, because of his severe

mental illness, he will be institutionalized and harmed.

a. Fear of Harm From Guerrillas and Drug Traffickers

The BIA ruled that Petitioner was unlikely to prove past

persecution because he failed to show that, at the time of the

past harm, the Guatemalan government was either unable or

unwilling to protect him from the harm. The BIA did not

abuse its discretion in assessing the evidence in the record of

Guatemala’s willingness to protect him from harm in the

early 1980s.

Nor did the BIA legally err by focusing on that

timeframe. When assessing whether a petitioner has

established past persecution, the relevant inquiry focuses on

the government’s actions at that time. See Truong v. Holder,

613 F.3d 938, 941 (9th Cir. 2010) (per curiam) (holding that

a petitioner must show that “the persecution was committed

either by the government or by forces that the government

was unable or unwilling to control” and assessing that prong

by considering how the government responded at the time of

the past harm (quoting Gormley v. Ashcroft, 364 F.3d 1172,

1177 (9th Cir. 2004)) (emphasis added)). Petitioner cites no

legal support for the proposition that one measures past

persecution by considering how the foreign government

today would act.

The BIA also did not abuse its discretion in concluding

that Petitioner was unlikely to prevail in establishing an

objectively reasonable fear of future harm due to events that

occurred more than 30 years earlier. The BIA reasonably

44 LEMUS-ESCOBAR V. BONDI

concluded that the record contains no meaningful evidence

that a gang member or drug trafficker would harm him

today.

b. Mental Illness

Petitioner submitted considerable evidence that

institutionalized mentally ill persons in Guatemala are

significantly mistreated. The Human Rights Report for

Guatemala written by the U.S. State Department states:

The Federico Mora National Hospital for

Mental Health, the only public healthcare

provider for persons with mental illness,

lacked basic supplies, equipment, hygienic

living conditions, and adequate professional

staff. Media reported mistreatment of

residents, including physical, psychological,

and sexual violence by other residents,

guards, and hospital staff, especially with

respect to women and children with

disabilities. Multiple legal actions were

pending against the hospital.

A nonprofit organization concluded from its investigation

that “Federico Mora [is] one of the most violen[t] and

dangerous facilities anywhere in the world. Staff and

detainees have reported that rape, violence, and other forms

of abuse are routine within the facility.” Another document

reported:

The actions of the Government often

perpetuated segregation and discrimination

against persons with disabilities. The country

Rapporteur expressed her grave concern

LEMUS-ESCOBAR V. BONDI 45

about the serious violations of the human

rights of persons with disabilities detained in

the Federico Mora mental health

hospital . . . . Serious human rights

violations, including torture and ill treatment

of persons with disabilities detained in this

hospital, had been reported[.]

In sum, Federico Mora is the only public mental health

hospital in the country, and there are many reports of abuse

and torture of patients. Petitioner asserted that, because of

his age and significant mental health problems, he will be

hospitalized in Federico Mora, and then abused and tortured.

In asserting asylum and withholding claims, he argued that

he belonged to a particular social group of “mentally ill and

disabled” persons.

The BIA did not hold that Petitioner was unlikely to be

hospitalized or that he likely does not belong to a particular

social group. The BIA held, instead, that Petitioner was

unlikely to prevail on the merits of his asylum and

withholding claims for one reason only: “Evidence that

Guatemala has an inadequate healthcare system is not

evidence of persecution on account of a protected ground.”

(Citing Mendoza-Alvarez v. Holder, 714 F.3d 1161, 1165 &

n.2. (9th Cir. 2013) (per curiam)). We conclude that the BIA

abused its discretion.

In Mendoza-Alvarez, we held that an inadequate

healthcare system that broadly affects many persons by

failing to provide sufficient medication such as insulin

cannot support an asylum or withholding claim. Id. at 1165.

Petitioner’s claim here is far more specific: he fears being

hospitalized at one particular hospital, where patients are

“routine[ly]” abused. Petitioner’s claim is not a nationwide,

46 LEMUS-ESCOBAR V. BONDI

generalized claim of inadequate access to medication; he

fears direct physical violence while institutionalized, and his

claim is supported by specific reports from credible entities.

Under any sensible assessment of the record at the motion-

to-reopen stage, Petitioner established at least a “reasonable

likelihood” that he would prevail in establishing a reasonable

fear of future harm. Fonseca-Fonseca, 76 F.4th at 1179. The

BIA illogically concluded otherwise only by

misunderstanding (or mischaracterizing) the nature of his

claim as being about generalized healthcare conditions in the

country as a whole.

That same error affected the BIA’s analysis of

Petitioner’s CAT claim. The BIA held that, “although

[Petitioner] has submitted evidence of abusive conditions in

mental health institutions in Guatemala, this evidence does

not establish a prima facie showing for protection against

torture.” The BIA reasoned that “abusive and squalid

conditions in mental health institutions will not constitute

torture where the evidence plausibly establishes that the

conditions are the result of neglect, a lack of resources, or

insufficient training and education, rather than a specific

intent to cause severe pain and suffering.” Again, the BIA

misunderstood Petitioner’s claim. He does not fear

generalized harm from an inadequate healthcare system or

from generally poor conditions in the hospital; he fears that

he will be locked in the hospital and will experience what

has reportedly happened to many others, specifically violent

abuse, rape, and torture caused by those with a specific intent

to harm.

A comparison to Villegas v. Mukasey, 523 F.3d 984 (9th

Cir. 2008), is instructive. There, the petitioner pointed to

poor conditions in some Mexican mental hospitals, and we

upheld the BIA’s determination that no one had a specific

LEMUS-ESCOBAR V. BONDI 47

intent to harm. Id. at 989. By contrast to the evidence here—

detailed reports of significant mistreatment at the sole public

mental health hospital in the country, including violence and

torture caused by those with an intent to harm, not mere

squalor or neglect—the evidence in Villegas generally

concerned terrible conditions in hospitals. See id. (“While

Villegas is correct that a variety of evidence showed that

Mexican mental patients are housed in terrible squalor,

nothing indicates that Mexican officials (or private actors to

whom officials have acquiesced) created these conditions for

the specific purpose of inflicting suffering upon the

patients.”). Moreover, unlike in Villegas, the BIA here was

considering only whether there was a reasonable likelihood

that Petitioner would prevail on his CAT claim; in Villegas,

the petitioner received a full hearing on the claim, and the IJ

and the BIA ruled on the merits of the claim. Id. at 986–87.

We conclude that, under any reasonable consideration of the

record at the motion-to-reopen stage, Petitioner established

a “reasonable likelihood” that he would prevail in

establishing a likelihood of future torture. Fonseca-Fonseca,

76 F.4th at 1179.

For its part, the government errs in two respects. First, it

refers to the reports of abuse as arising in “only one

psychiatric hospital in Guatemala where abuse has

occurred,” suggesting that Petitioner might avoid the same

fate as other mentally ill patients. Gov’t’s Response Brief at

76. But the State Department’s report referred to that

hospital as “the only public healthcare provider for persons

with mental illness.” (Emphasis added.) Second, the

government attempts to bolster the BIA’s conclusion by

pointing to evidence that the Guatemalan government “is

actively trying to improve conditions for patients in mental

health facilities.” Id. at 77. But the BIA did not cite that

48 LEMUS-ESCOBAR V. BONDI

reason; it relied solely on the lack of an intent to harm. We

may review only the reasons given by the BIA. Suate-

Orellana v. Garland, 101 F.4th 624, 628 n.2 (9th Cir. 2024).

PETITIONS DISMISSED IN PART, DENIED IN

PART, AND GRANTED IN PART. The parties shall

bear their own costs on appeal.

ZOUHARY, District Judge, concurring in part and

dissenting in part:

I agree with the majority opinion on all points except the

decision to remand for the agency to examine Petitioner’s

competency. And, as to fear of future persecution, I join that

portion of the Opinion, writing further only to elaborate on

why the record supports the BIA’s ultimate conclusion.

1. The test for determining whether a petitioner “is

competent to participate in immigration proceedings is

whether he or she has a rational and factual understanding of

the nature and object of the proceedings, can consult with the

attorney or representative if there is one, and has a

reasonable opportunity to examine and present evidence and

cross-examine witnesses.” Matter of M-a-m-, 25 I. & N.

Dec. 474, 479 (2011).

During the proceedings below, the IJ questioned

Petitioner extensively about the discrepancies in his

testimony related to his criminal history. She found

Petitioner was attempting to “minimize the seriousness of his

criminal convictions” and that he had “lied to the court.” To

explain the discrepancies, Petitioner provided a “last

minute” letter from a doctor, which stated Petitioner suffered

from Wernicke-Korsakoff Syndrome. The IJ correctly noted

LEMUS-ESCOBAR V. BONDI 49

that she could not simply rely on the letter, as she had “no

background information or CV” and “didn’t even know if he

was [Petitioner’s] doctor during those time periods.” She

gave Petitioner additional time to provide a CV and further

medical testimony.

At the next hearing, Petitioner provided a new

neurologist report. But that report noted Petitioner was

readily able to communicate -- he was “[a]lert and oriented,”

“recall[ed] the names of his wife and children readily,” was

“[a]ble to speak about his line of work,” and had normal

“language function including spontaneous output,

comprehension and repetition intact.”

The IJ concluded that there was “some documentation to

show that [Petitioner] has memory lapses.” But the medical

documents did not show Petitioner lacked a rational

understanding of his surroundings. Petitioner easily

answered questions about his family and his life. And he

had multiple opportunities to present sufficient medical

evidence, but failed to do so.

In any event, memory loss alone is not enough to show

incompetency. See Salgado v. Sessions, 889 F.3d 982, 987–

89 (9th Cir. 2018) (finding poor memory insufficient where

the petitioner answered questions, was alert, and asked for

clarification when confused). As the BIA noted, the medical

records did “not provide any details regarding the extent of

[Petitioner’s] memory loss,” and Petitioner “was able to

readily answer questions about this family, where he lives,

and his employment.” This was not a case in which

Petitioner did not rationally understand the proceedings.

Rather, Petitioner attempted to minimize certain aspects of

his past.

50 LEMUS-ESCOBAR V. BONDI

For these reasons, while I respect the majority’s

thorough analysis of the other claims, I cannot agree with the

decision to remand on competency grounds. Remanding

cases that lack a legitimate question of competency

undermines the finality of proceedings, encourages delay,

and further strains our already overburdened immigration

courts.

2. I reluctantly agree with the conclusion to remand on

the issue of fear of future harm. While the record does not

reflect that Petitioner is likely to be hospitalized or that he

likely belongs to a particular social group, the BIA did not

make that finding -- though such a finding necessarily flows

from the competency discussion above. Petitioner’s current

family support, relatives in Guatemala, and lack of medical

evidence of disability, do not point to him being

institutionalized for a mental illness. “However, this court

cannot affirm the BIA on a ground upon which it did not

rely.” Navas v. I.N.S., 217 F.3d 646, 658 n.16 (9th Cir.

2000).

Petitioner initially filed for asylum in 1992. In the

decades since, this case has included thousands of pages of

documents, dozens of hearings before different IJs, and

multiple appeals. Now, another unfortunate snag in our

congested and broken immigration system.