                            NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                             APR 20 2015

                                                                          MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS

VERONICA FLOR RICO-                              No. 14-70779
LANDAVERDE,
                                                 Agency No. A076-635-677
              Petitioner,

 v.                                              MEMORANDUM*

ERIC H. HOLDER, Jr., Attorney General,

              Respondent.


                     On Petition for Review of an Order of the
                         Board of Immigration Appeals

                        Argued and Submitted April 8, 2015
                               Pasadena, California

Before: SILVERMAN and BEA, Circuit Judges and DONATO,** District Judge.

      Veronica Flor Rico-Landaverde petitions for review of the Board of

Immigration Appeal’s dismissal of her appeal from the Immigration Judge’s final




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable James Donato, District Judge for the U.S. District
Court for the Northern District of California, sitting by designation.
                                         -2-
order of removal. Except as noted below, we have jurisdiction pursuant to 8

U.S.C. § 1252. We DISMISS IN PART and DENY IN PART the petition.

      The court lacks jurisdiction to consider Rico-Landaverde’s argument that the

IJ erred in finding her asylum application untimely. Rico-Landaverde argues that

the IJ should have considered whether her depression prevented her from

complying with the one-year deadline, but she did not raise this argument before

the BIA.1 8 U.S.C. § 1252(d)(1); Barron v. Ashcroft, 358 F.3d 674, 677-78 (9th

Cir. 2004). The court also lacks jurisdiction to consider the unexhausted question

of whether Rico-Landaverde’s due process rights were violated when the IJ failed

to inform her of her apparent eligibility for a U Visa.2 Brezilien v. Holder, 569

F.3d 403, 412 (9th Cir. 2009); Tall v. Mukasey, 517 F.3d 1115, 1120 (9th Cir.

2008); Barron, 358 F.3d at 678. These aspects of the petition are dismissed.




      1
       The IJ denied Rico-Landaverde’s applications for withholding of removal
and protection under the Convention Against Torture on the merits, but Rico-
Landaverde explicitly abandoned those applications in her petition for review.
      2
       United States v. Ubaldo-Figueroa, 364 F.3d 1042 (9th Cir. 2004), upon
which Rico-Landaverde relies to contend the exhaustion requirement does not
apply to failure-to-inform challenges on direct review of a removal order, is
inapposite. That case addresses the exhaustion requirement of 8 U.S.C. § 1326(d),
which allows for collateral review of a deportation order as a defense to an illegal
reentry charge. Id. at 1048-50.
                                          -3-
      Rico-Landaverde’s argument that her conviction for endangerment under

A.R.S. § 13-1201 is not a crime involving moral turpitude, rendering her

removable, is foreclosed by Leal v. Holder, 771 F.3d 1140 (9th Cir. 2014). Even if

her conviction were not a CIMT, Rico-Landaverde is removable because she is

present in the United States without having been admitted or paroled after

inspection. 8 U.S.C. §§ 1182(a)(6)(A)(1), 1227(a)(1). She does not challenge the

IJ’s finding of removability on that basis. This aspect of her petition is therefore

denied.

      Finally, the court also denies Rico-Landaverde’s petition to the extent it

argues the IJ improperly applied Matter of M-A-M-, 25 I. & N. Dec. 474 (BIA

2011). The record before the IJ showed nothing more than that Rico-Landaverde

had been treated for depression in the past. Even assuming for the sake of

argument that this history should have triggered further inquiry into Rico-

Landaverde’s mental competency under M-A-M-, the IJ’s explicit findings that

Rico-Landaverde was competent were amply based upon the record evidence as

well as Rico-Landaverde’s appropriate behavior in court, her ability to file a pro se

asylum application and call the appropriate witnesses to testify, and her lucid and

appropriate interactions with the IJ over the course of five hearings that spanned

three-and-a-half months. While we stress that M-A-M-’s “further inquiry”
                                         -4-
requirement no doubt requires IJs to undertake more than routine questioning

before making a competency finding when faced with concrete indicia of

incompetency, we conclude that under the particular facts of this case, the IJ’s

inquiry into Rico-Landaverde’s competency was sufficient.

      We also note that Rico-Landaverde does not argue that she was actually

incompetent, and we further note that she opposed amici’s recommendation that

we remand her petition so that she could take advantage of the unarguably much

stronger protections provided to supposedly pro se mentally ill detainee

classmembers under the permanent injunction in Franco-Gonzalez v. Holder, Case

No. CV-10-02211 DMG (DTBx), 2014 WL 5475097 (C.D. Cal. Oct. 29, 2014).

      PETITION FOR REVIEW DISMISSED IN PART; DENIED IN PART.
                                                                                FILED
Rico-Landaverde v Eric Holder 14-70779                                          APR 20 2015

                                                                             MOLLY C. DWYER, CLERK
Bea, J., concurring in part and dissenting in part.                           U.S. COURT OF APPEALS



      I agree with the majority that we lack jurisdiction over petitioner Veronica

Flor Rico-Landaverde’s claim that the IJ erred in finding her application for

asylum untimely. And I also agree that our caselaw forecloses her argument that

her conviction for endangerment is not a crime involving moral turpitude. But

because I conclude that the IJ did not correctly apply the framework for

determining competency set out in Matter of M-A-M-, 25 I. & N. Dec. 474 (BIA

2011), I think we should send the case back so the agency can apply its own

binding precedent. And so, I respectfully dissent.

      In Matter of M-A-M-, the Board of Immigration Appeals (BIA) announced

the test for determining whether an alien is competent and set out a legal

framework for making that determination. 25 I. & N. Dec. at 479–484. The BIA

summarized its decision as follows:

      [I]f there are no indicia of incompetency in an alien’s case, no further
      inquiry regarding competency is required. The 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 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. If there are
      indicia of incompetency, the Immigration Judge must make further
      inquiry to determine whether the alien is competent for purposes of
      immigration proceedings. If the alien lacks sufficient competency to
      proceed, the Immigration Judge will evaluate and apply appropriate


                                           1
      safeguards. The Immigration Judge must articulate the rationale for his
      or her decision.

Id. at 484.

      Under the framework articulated in Matter of M-A-M-, respondents in

immigration proceedings are presumed to be competent, and if there are no indicia

of incompetency in a case, no further inquiry regarding competency is required.

But where indicia of incompetency exist, the IJ “must make further inquiry to

determine whether the alien is competent for purposes of immigration

proceedings.” Matter of M-A-M-, 25 I. & N. Dec. at 484 (emphasis added).

      Here, there were sufficient indicia of incompetency before the IJ. Prior to

Rico’s hearing, counsel for the Executive Office of Immigration Review (EOIR)

submitted to the IJ a notice of Rico’s possible class membership in an action

pending in the Central District of California challenging the standards for

competency in immigration courts. EOIR informed the IJ Rico “ha[d] been

diagnosed with Depression (Adjustment Disorder with Anxiety)” and that she may

be “entitled to certain procedural protections” if she remains unrepresented. The

notice then reminded the IJ that he should follow the Matter of M-A-M- framework

to determine whether Rico was indeed competent. Aside from the class notice, the

record included a probation-violation report, which noted that Rico “has physical

and mental health concerns” and “admits to suffering from mental health issues

and states she has thought about harming herself recently.” The record also

                                          2
reflects more oblique indications of mental issues, such as her recurring problems

with alcohol abuse, her multiple arrests for drunk driving, and her difficulty

providing for herself and her eight American-citizen children. Taken together, I

believe these indicia were sufficient to trigger the IJ’s duty under Matter of

M-A-M- to inquire further into Rico’s competency. That the IJ did not do.

      The majority and I agree that Matter of M-A-M-’s “further inquiry” requires

IJs to undertake more than routine questioning before making a competency

finding when faced with indicia of competency. But I cannot agree that the IJ’s

questions to Rico were anything more than business as usual. At no time did the IJ

inquire into Rico’s mental state, her mental-illness diagnosis, her problems with

substance abuse, her treatment or any medications she was taking, or whether she

was being treated while in detention. See id. at 480 (“The inquiries made should

include questions about . . . the respondent’s state of mind.”); see also id. at

480–81 (suggesting measures that an IJ could take to assess alien’s competency,

including “ask[ing] the respondent whether he or she currently takes or has taken

medication to treat a mental illness and what the purpose and effects of that

medication are”).

      Because the IJ failed to make the further inquiry required by Matter of

M-A-M-, I would remand to the agency so that it can properly apply its own




                                           3
precedent in the first instance. See Azanor v. Ashcroft, 364 F.3d 1013, 1020–21

(9th Cir. 2004). I respectfully dissent.




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