Henri Calderon-Rodriguez v. Jefferson Sessions

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

HENRI CALDERON-RODRIGUEZ, No. 16-70225

Petitioner,

Agency No.

v. A205-273-112

JEFFERSON B. SESSIONS III,

Attorney General, OPINION

Respondent.

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted December 4, 2017

Pasadena, California

Filed January 3, 2018

Before: A. Wallace Tashima and Marsha S. Berzon,

Circuit Judges, and Matthew F. Kennelly,* District Judge.

Opinion by Judge Berzon

*

The Honorable Matthew F. Kennelly, United States District Judge

for the Northern District of Illinois, sitting by designation.

2 CALDERON V. SESSIONS

SUMMARY**

Immigration

The panel granted Henri Calderon-Rodriguez’s petition

for review of the Board of Immigration Appeals’ decision,

concluding that the Board in two related ways abused its

discretion in affirming the IJ’s competence evaluation and

determination.

First, the Board affirmed the IJ’s inaccurate factual

findings, failing to recognize that the medical record upon

which the IJ and Board heavily relied was nearly a year old,

and that it may have no longer reflected Calderon’s mental

state.

Second, the Board affirmed the IJ’s departure from the

standards set out by the Board for competency determinations

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

Specifically, the panel concluded that the IJ did not

adequately ensure that the Department of Homeland Security

complied with its obligation to provide the court with relevant

materials in its possession that would inform the court about

Calderon's mental competency. In this respect, the panel

noted that, importantly, neither the IJ nor the Board

recognized that, as DHS was providing ongoing medical care

to Calderon as a detainee, it necessarily possessed additional

relevant, but not introduced, medical records.

**

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

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

CALDERON V. SESSIONS 3

The panel remanded to the Board with instructions to

remand Calderon’s case to the IJ for a competence evaluation

based on current mental health reviews and medical records,

as well as any other relevant evidence.

COUNSEL

Taiyyeba S. Skomra (argued), Helen A. Sklar, and Amy P.

Lenhert, Stone Grzegorek & Gonzalez, LLP, Los Angeles,

California, for Petitioner.

Sarah Byrd (argued), Trial Attorney; Chad A. Readler, Acting

Assistant Attorney General; Linda S. Wernery, Assistant

Director; Office of Immigration Litigation, Washington,

D.C.; for Respondent.

OPINION

BERZON, Circuit Judge:

This case concerns an individual’s right to a competence

evaluation if there are indicia of his or her incompetence

present during immigration proceedings. In particular, we

consider the Department of Homeland Security’s (“DHS”)

obligation to provide the Immigration Judge (“IJ”) with

relevant evidence with regard to that individual’s

competence.

I.

Petitioner Henri Calderon-Rodriguez (“Calderon”), who

has been detained since 2012, petitions for review of the

4 CALDERON V. SESSIONS

Board of Immigration Appeal’s (“BIA”) dismissal of his

appeal, arguing that his competence was inappropriately and

incompletely evaluated by his IJ. We agree.

In 2012, Calderon applied for cancellation of removal

and several other forms of relief. Two months before his

merits hearing in 2013, DHS filed a document informing the

IJ that Calderon might be a member of a class of detained,

unrepresented, possibly incompetent individuals in

immigration proceedings, potentially affected by ongoing

proceedings in Franco-Gonzalez v. Holder, No. 10-02211

(C.D. Cal.).

The filing noted that Calderon was in detention and had

been diagnosed with “Post-Traumatic Stress Disorder and

Depression – Not Otherwise Specified.” Neither the

government nor Calderon’s counsel addressed the filing

during Calderon’s merits hearing. The IJ denied Calderon’s

request for relief, and the BIA dismissed Calderon’s appeal.

After a petition for review was filed in this court, the

Attorney General requested that we remand the case to the

BIA for consideration of the competence question. The BIA,

in turn, remanded “to permit the Immigration Judge to make

explicit findings of fact and conclusions of law concerning

the respondent’s mental competency. . . .”

On remand, a hearing was held in June 2015. After the

hearing, the IJ found Calderon competent and denied his

applications for relief. In doing so, the IJ relied on her

“observation of and interaction with” Calderon “at multiple

hearings over several years”; Calderon’s ability to seek legal

assistance; his collection and introduction of evidence and

testimony; and the content of his testimony, which the IJ

found credible. The IJ also relied heavily on a mental health

CALDERON V. SESSIONS 5

review submitted by DHS, which stated that Calderon was

“currently . . . managing anxiety overall well,” had “[n]o

active PTSD [symptoms],” although he “historically had

more significant problems,” and had “some situational

depression and sleep disturbance.” The IJ called the

document “an updated mental health review,” and stated that

the review was “dated July 24, 2015.” In fact, the document

was dated July 24, 2014, almost a year before the hearing.

In addition, the IJ noted that Calderon submitted current

“patient medication information,” and briefly asked him

about it, but did not evaluate that information in more detail.

Several medications in that current list were either not

identified as prescribed, or were identified at lower dosages,

in the 2014 mental health review submitted by DHS.

Calderon appealed the IJ’s ruling to the BIA. In his brief,

he did not mention his competence. Instead, Calderon

submitted a “Request for Correction of Transcrip,” [sic], in

which he argued that there was “a lot information missing in

the court proceeding,” like when he “advise the Immigration

Judge . . . I not feeling good I start to feeling very

uncomfortable, hot and sweat the I.J. don’t care. . . . I start

goin in crisis or breakdown.” He also said,

After court I go back to my pad I can not

control my self at the pad I go with the

psychologic and then I finis in the Room

under “Suicide Watch.” Few days later or a

month later I asking my Doctor of menthal

health . . . if is true that the immigration judge

. . . call her and asking for my menthal health.

The Doctor sayin that she never receive any

call. . . .

6 CALDERON V. SESSIONS

He wrote, “Now I want know why the I.J. put on risk my life

and menthal health.”

The BIA found no clear error in the IJ’s competence

determination and adopted it. Calderon petitioned for review.

II.

A.

The Immigration and Nationality Act (“INA”) requires

that, “[i]f it is impracticable by reason of an alien’s mental

incompetency for the alien to be present at the proceeding,

the Attorney General shall prescribe safeguards to protect the

rights and privileges of the alien,” 8 U.S.C. § 1229a(b)(3)

(INA § 240(b)(3)). Several regulations flesh out these

“safeguards.” See 8 C.F.R. §§ 103.8(c)(2)(ii), 1240.4,

1240.10(c). But neither the INA nor the regulations specify

how to decide whether an individual is incompetent, or how

to proceed if an individual is incompetent but it is not

impracticable for him or her to be present.

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

BIA filled in some of the gaps in the INA. Drawing on the

general due process principles for assuring competence in

criminal proceedings, as articulated in Drope v. Missouri,

420 U.S. 162, 171 (1975), as well as on INA-provided rights

to be represented and present evidence, the BIA established

that:

[T]he test for determining whether an alien is

competent to participate in immigration

proceedings is whether he or she has a rational

and factual understanding of the nature and

CALDERON V. SESSIONS 7

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. at 479. Under Matter of

M-A-M-, if there are indicia of incompetence—which may

“include a wide variety of observations and evidence,”

ranging from “medical reports or assessments from past

medical treatment” to “school records” and “testimony from

friends,” id. at 479–80—“the Immigration Judge must make

further inquiry to determine whether the alien is competent

for purposes of immigration proceedings,” id. at 484. See

Mejia v. Sessions, 868 F.3d 1118, 1121–22 (9th Cir. 2017)

(holding that the indicia of incompetence required the IJ in

that case “to explain whether Petitioner was competent and

whether procedural safeguards were needed”).

While “[t]he approach taken in any particular case will

vary based on the circumstances,” IJs “must take measures”

to assess an individual’s competence when there are indicia

of incompetence, such as questioning the individual simply,

continuing proceedings to allow for evidence gathering,

allowing assistance from friends and family, asking the

individual about his or her psychiatric medication and its

purpose and effects, and arranging for a psychiatric

evaluation. Matter of M-A-M-, 25 I&N Dec. at 480–81; see

also Matter of J-S-S-, 26 I&N Dec. 679, 681–84 (BIA 2015)

(describing IJs’ responsibilities in, and standards of proof for,

determining competence). Most relevant here, “DHS will

often be in possession of relevant evidence, particularly

where the alien is detained. The DHS has an obligation to

provide the court with relevant materials in its possession that

8 CALDERON V. SESSIONS

would inform the court about the respondent’s mental

competency.” Matter of M-A-M-, 25 I&N Dec. at 480 (citing

8 C.F.R. § 1240.2(a); Matter of S-M-J-, 21 I&N Dec. 722,

726–27 (BIA 1997)).

B.

In Calderon’s case, the BIA in two related ways abused

its discretion in affirming the IJ’s competence evaluation and

determination.1

First, the BIA affirmed the IJ’s inaccurate factual finding

about the mental health evidence in the record. Neither the IJ

nor the BIA recognized that the medical record upon which

they heavily relied was nearly a year old, and that it may have

no longer reflected Calderon’s mental state. Instead, the IJ

referred to the medical record as an “updated” reflection of

Calderon’s present mental health condition, and stated that

the record showed that Calderon “[p]resently . . . is not

exhibiting any active PTSD symptoms, suicide ideation,

hallucinations, or psychosis” (emphasis added). Those

findings as to Calderon’s condition at the time of the hearing

were not supported by the year-old date on the mental health

record. As these critical factual findings were made “without

‘support in inferences that may be drawn from the facts in the

record,’” Rodriguez v. Holder, 683 F.3d 1164, 1170 (9th Cir.

2012) (quoting Anderson v. Bessemer City, 470 U.S. 564, 577

(1985) and citing United States v. Hinkson, 585 F.3d 1247,

1

The Attorney General recognizes that there is no exhaustion

problem regarding the competence claim. The BIA addressed the merits

of the IJ’s competence determination, so we “cannot . . . decline to

consider the issue based upon [an alleged] procedural defect.” Abebe v.

Gonzales, 432 F.3d 1037, 1041 (9th Cir. 2005) (en banc).

CALDERON V. SESSIONS 9

1262 (9th Cir. 2009) (en banc)), they constituted an abuse of

discretion.

Second, the BIA abused its discretion by affirming

the IJ’s departure from the standards set forth in Matter of

M-A-M-, 25 I&N Dec. at 480–81. See Mejia, 868 F.3d at

1121. While the IJ did “take” at least some “measures” to

determine whether Calderon was competent, Matter of M-A-

M-, 25 I&N Dec. at 480, she did not adequately ensure that

DHS complied with its “obligation to provide the court with

relevant materials in its possession that would inform the

court about the respondent’s mental competency,” as required

by Matter of M-A-M-. Id.

Importantly, neither the IJ nor the BIA recognized that, as

DHS was providing ongoing medical care to Calderon as a

detainee, it necessarily possessed additional relevant, but not

introduced, medical records. There were, indeed, specific

indications that there were later medical records not provided

to the IJ or the BIA that could have reflected a deterioration

in Calderon’s condition.

First, the mental health review in 2014 indicated that

Calderon would have a follow-up appointment, but no

medical records were submitted to the IJ regarding that

appointment or any later ones. Second, Calderon submitted

a list of his current medications that differed in type and

dosage from those described in the 2014 review. The change

in medication could have reflected a change in Calderon’s

mental state, or the change could have itself affected

Calderon’s mental state due to potential side effects; at a

minimum, the change confirmed that there were more recent

medical treatment records than the year-old one. And third,

Calderon’s pro se submission to the BIA included a

10 CALDERON V. SESSIONS

complaint that his treating doctor was not asked for current

information about his condition.

As the Attorney General notes, “there are many types of

mental illness that, even though serious, would not prevent a

respondent from meaningfully participating in immigration

proceedings.” Matter of M-A-M-, 25 I&N Dec. at 480.

But, by not assuring that DHS had provided Calderon’s

most recent medical records, diagnoses, and prescriptions,

the IJ was unable to evaluate whether Calderon’s current

mental illness prevented him from meaningfully participating

in his June 2015 immigration proceedings, and so violated

“M-A-M-’s rigorous procedural requirements.” Mejia,

868 F.3d at 1122. The IJ therefore erred, and the BIA abused

its discretion in affirming the IJ’s decision.2

C.

Calderon also argues that his waiver of counsel was not

knowing and voluntary. Whether Calderon was competent

may well affect that inquiry. We therefore do not address the

waiver of counsel argument at this juncture.

Calderon also makes an equal protection argument

concerning the impact of his alcoholism on the grounds for

denying relief from removal. His argument relies on

2

We note that, as Calderon argues, DHS may have violated an order

implementing the permanent injunction in Franco-Gonzalez by failing to

provide Calderon’s updated mental health information to the IJ and BIA.

See Franco-Gonzalez v. Holder, No. 10-02211, Dkt. No. 786 (C.D. Cal.

October 29, 2014). However, because Calderon’s complete mental health

information was not introduced into the record, we are unable to determine

if Calderon was a member of the Franco-Gonzalez class, see id. at 6–7,

and thus cannot determine if the order was violated.

CALDERON V. SESSIONS 11

Ledezma-Cosino v. Lynch, 819 F.3d 1070 (9th Cir. 2016), a

decision overruled by Ledezma-Cosino v. Sessions, 857 F.3d

1042 (9th Cir. 2017) (en banc). The equal protection

argument therefore fails.

III.

The petition is GRANTED. The case is REMANDED

to the Board of Immigration Appeals with instructions to

remand Calderon’s case to the Immigration Judge for a

competence evaluation based on current mental health

reviews and medical records, as well as any other relevant

evidence.