Salgado v. Sessions

• Decision Date: 08 May 2018
• Docket Number: No. 14-71890,14-71890
• Citation: 889 F.3d 982
• Parties: Bistermu S. Mora SALGADO, Petitioner, v. Jefferson B. SESSIONS III, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

889 F.3d 982

Bistermu S. Mora SALGADO, Petitioner,

v.Jefferson B. SESSIONS III, Attorney General, Respondent.

No. 14-71890

United States Court of Appeals, Ninth Circuit.

Submitted March 8, 2018,^* Pasadena, California

Filed May 8, 2018

Pieter D. Speyer, La Jolla, California, for Petitioner.

Lindsay M. Murphy, Trial Attorney; Keith I. McManus, Senior Litigation Counsel; Office of Immigration Litigation, United States Department of Justice, Washington, D.C.; for Respondent.

Before: Ronald M. Gould and Mary H. Murguia, Circuit Judges, and Jack Zouhary,^** District Judge.

OPINION

GOULD, Circuit Judge:

Petitioner Bistermu Mora Salgado (Salgado) is a lawful permanent resident of the United States who emigrated from Mexico in 1981. Salgado has lived and worked in the United States off and on since 1981. His wife also lives in the United States, and is not a U.S. citizen, but his two sons are citizens. In 2006, Salgado attempted to smuggle a friend's child into the United States by storing the child under the back seat of his vehicle as he crossed the border with his two sons. U.S. Customs and Border Protection found the stowaway child, detained Salgado, and released Salgado's children. Salgado confessed to the crime of smuggling, making him eligible for removal, but argued that he was eligible for cancellation of removal. Salgado's removal proceedings have been pending since 2006 because of a series of continuances and changes of venue. During this period of time from 2006 to the present, Salgado continued to work in the United States and paid to have his wife and her son smuggled into the United States.

In 2013, there was finally a merits hearing in Salgado's case. At that hearing, Salgado claimed that he had been involved in a small car accident a week before that was causing him memory loss. The Immigration Judge (IJ) denied counsel's motion to continue the hearing for Salgado to undergo a medical exam. Salgado gave unclear testimony about his U.S. addresses and prior convictions, but the IJ did not make an adverse credibility finding. The IJ rendered an oral decision finding Salgado ineligible for relief because the negatives of Salgado's application, including prior arrests and convictions, participation in smuggling, and lack of significant ties to the United States, outweighed the positives, such as his work and length of residence in the United States. A three-judge panel of the Board of Immigration Appeals (BIA) affirmed the IJ's decision, concluding that the IJ's mental competency assessment was not in error and that the IJ correctly exercised his discretion to deny Salgado relief.

Salgado argues on appeal that the IJ erred by finding him competent to testify at the hearing. We hold that Salgado's complaints of poor memory, without evidence of an inability to understand the nature and object of the proceedings, are insufficient to show mental incompetency. We further conclude that any memory loss Salgado may have experienced did not prejudice his immigration proceedings, because his application, not his poor memory, was the basis for the IJ's denial of cancellation of removal.

I

A

After seven years of continuances and transfers, Salgado at long last had his merits hearing before the IJ. When asked for his current address, Salgado said that he could not remember because "I had an accident last Friday ... and my memory is not very well." Salgado had been living at his then current address for at least two years. On the one hand, in support of his mental incompetency claim, Salgado testified that he was "a bit confused" and that he did not "have a memory to remember things right now." But, on the other hand, he did not go to the hospital after the accident. Nevertheless, Salgado stated that he did not feel he could testify. Salgado's counsel petitioned the IJ to continue the hearing in light of Salgado's memory difficulties, and the IJ requested questioning regarding the accident.

Salgado then testified that he was going 35 to 40 miles per hour on I-5 when he hit another car. He testified that the accident was not bad, and that the police were not called. But he testified that he and the other driver exchanged insurance information, and that his car was damaged more than the other car. Salgado stated that he had not suffered physical injuries but was having mental difficulties. Salgado had not told his counsel about the accident, although he saw her after the accident and before the hearing. The IJ declined to grant the continuance.

Salgado could not give full addresses for places where he had lived in the United States, and he gave unclear testimony about a series of years when his wife and two sons lived in Mexico while he lived in the United States. Salgado at first stated that he was unemployed during that time, but later stated that he was self-employed, collecting items he could resell for money.

When Salgado was arrested on the smuggling charge in 2006, his family was living in Mexico. Salgado attempted to smuggle a child into the United States for a friend, but he could not remember the name of the child or the friend's last name. Salgado stated that it was the only time he had tried to smuggle someone into the country. Salgado stated that he was "confused" and "remorseful" when he was detained in 2006. He testified that the 2006 interview was in English, although the sworn statement reflects the interview was in Spanish. Apart from his smuggling crime, Salgado has several other criminal convictions and arrests: a 1999 domestic violence incident when he slapped his wife across the cheek while intoxicated, a 1991 trespassing/petty theft conviction, and two DUIs.

Salgado testified that he first came to the United States at the age of 15, in about 1981. While Salgado's wife and children generally lived in Mexico, he would bring his children to school in the United States. Salgado could not give the name of the school his children attended, but noted that his children did not start attending school here until after the 2006 smuggling incident. For three years, Salgado would spend three to four nights a week in Mexico, where his children were living, and then drive his children to school in the United States in the morning. Salgado had been making payments on a home in Tijuana, Mexico for 13 or 14 years at the time of the hearing.

B

The IJ began his oral decision by noting that Salgado admitted to the attempted smuggling of a minor child into the United States. The IJ observed that Salgado testified at the hearing despite the fact that he had been involved in a "very minor" accident, with little damage to his car and no physical injuries, the Friday before the hearing. Salgado failed to mention the accident to his counsel, even though he met with her a few days later. The IJ found no "signs whatsoever of any kind of problem that would affect [Salgado's] ability to testify and make him incompetent to testify." The IJ further found that Salgado was alert, asked for clarification when he did not understand, and sometimes answered before the translator had finished his translation.

The IJ determined that Salgado's eligibility for cancellation was in question because Salgado had lived in Tijuana, Mexico for at least two years. The IJ noted that Salgado's testimony regarding his U.S. addresses was "very sketchy and vague" and that Salgado could not even remember his current U.S. address, where he had resided for the last two years. The IJ assumed arguendo that despite inconsistencies in testimony and work history documentation, Salgado could meet the residency requirements.

But the IJ concluded that Salgado had not met his burden to show that he deserved a favorable exercise of discretion for cancellation: Salgado had two DUI convictions, a conviction for domestic violence, and several arrests; he helped his wife to illegally enter the United States on more than one occasion, including after the child smuggling incident which was the basis for this removal proceeding; there was uncertainty about the length of his residence in the United States, particularly because he owned a home in Tijuana, Mexico, where he lived at various points; and both of Salgado's children lived in Mexico during their formative years.

The IJ considered Salgado's positives, including that he had a long period of residence in the United States, that his two children were born in the United States, and that he could not continue his job at the Coronado Brewery if he were removed. But the IJ concluded that the positives did not outweigh the negatives to favor a discretionary grant of cancellation of removal.

C

A three-judge panel of the BIA affirmed the IJ's determination that Salgado was mentally competent to participate in the removal proceedings. The BIA found that based on the testimony Salgado gave, the IJ correctly rejected his request for a continuance for a medical evaluation. The BIA found that "[a]lthough the record reflects that the respondent did have trouble remembering certain addresses and residences, there is no evidence or assertion that the respondent lacked ‘a rational and factual understanding of the nature and object of the proceedings.’ " It further concluded that Salgado had an opportunity to consult with counsel and examine and present evidence as required by Matter of M-A-M- , 25 I. & N. Dec. 474 (BIA 2011). The BIA noted that the facts that Salgado could not remember, including addresses and dates of residence, went to the issue of continuous residence, on which the IJ did not rule in denying Salgado's application for cancellation of removal.

The BIA also found that the IJ correctly denied Salgado's requested relief of cancellation of removal because his adverse factors—paying for his wife to be smuggled and attempting to smuggle a friend's child into the United States, criminal convictions, and not creating significant United States ties—together outweighed his residence in the United States. The BIA affirmed the IJ's conclusion that...