                     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.
