                              NOT FOR PUBLICATION                        FILED
                    UNITED STATES COURT OF APPEALS                        JAN 2 2020
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                              FOR THE NINTH CIRCUIT

DIOGENES JASSO BERNAL, AKA Jesus                No.    18-70272
Escamilla Serrano, AKA Federico Velasco
Rivero,                                         Agency No. A027-149-962

                Petitioner,
                                                MEMORANDUM*
 v.

WILLIAM P. BARR, Attorney General,

                Respondent.

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

                    Argued and Submitted December 12, 2019
                             Pasadena, California

Before: KELLY,** PAEZ, and BADE, Circuit Judges.

      Diogenes Jasso Bernal, a native and citizen of Mexico, petitions for review

of the Board of Immigration Appeal’s (“BIA”) order affirming the Immigration

Judge’s (“IJ”) competency determination and denial of Convention Against



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
            The Honorable Paul J. Kelly, Jr., United States Circuit Judge for the
U.S. Court of Appeals for the Tenth Circuit, sitting by designation.
Torture (“CAT”) protection.1

      We have jurisdiction under 8 U.S.C. § 1252. We “review for abuse of

discretion whether the BIA clearly departs from its own standards.” Mejia v.

Sessions, 868 F.3d 1118, 1121 (9th Cir. 2017). We review factual findings for

substantial evidence. See Garcia v. Holder, 749 F.3d 785, 789 (9th Cir. 2014).

We grant the petition for review.

      The Department of Homeland Security (“DHS”) “has an obligation to

provide the [immigration] court with relevant materials in its possession that would

inform the court about the respondent’s mental competency.” Matter of M-A-M-,

25 I. & N. Dec. 474, 480 (B.I.A. 2011) (citing 8 C.F.R. § 1240.2(a) (2010)). An IJ

must ensure that DHS complies with this obligation. Calderon-Rodriguez, 878

F.3d at 1183 (citing Matter of M-A-M-, 25 I. & N. Dec. at 480)).

      DHS filed a notice of Franco-Gonzalez class membership with the

immigration court, see Franco-Gonzalez v. Holder, No. CV-10-02211 DMG

(DTBx), 2014 WL 5475097, at *3 (C.D. Cal. Oct. 29, 2014), and requested a

“judicial inquiry” to determine Jasso Bernal’s competency to represent himself.


1
  Jasso Bernal also filed applications for asylum and withholding of removal,
which the IJ denied after finding that Jasso Bernal was ineligible for such relief. In
his appeal to the BIA, Jasso Bernal did not challenge the IJ’s determination that he
was ineligible for asylum or withholding of removal. Jasso Bernal also did not
contest the IJ’s competency finding before the BIA. However, there is no
exhaustion issue that precludes this court’s review of that issue. See Calderon-
Rodriquez v. Sessions, 878 F.3d 1179, 1183 n.1 (9th Cir. 2018).

                                          2
DHS provided the immigration court with a mental health review (“MHR”) dated

June 10, 2016, and medical records indicating that Jasso Bernal was diagnosed

with unspecified psychosis for which he was taking medication. On June 28, 2016,

an IJ conducted a competency inquiry and concluded that Jasso Bernal was

competent for purposes of the immigration proceedings and to represent himself.

In 2017, a different IJ held several hearings on the merits of Jasso Bernal’s

applications for withholding of removal, asylum, and CAT protection. During

those hearings DHS did not provide, and the IJ did not request, updated records

relevant to Jasso Bernal’s mental competency. Nonetheless, during those hearings,

the IJ found Jasso Bernal competent to meaningfully participate in the proceedings

and to represent himself.

      When evaluating Jasso Bernal’s competency, the IJ departed from the

requirements of Matter of M-A-M- by failing to “adequately ensure that DHS

complied with its ‘obligation to provide the court with relevant materials in its

possession that would inform the court about [Jasso Bernal’s] mental

competency.’” Calderon-Rodriguez, 878 F.3d at 1183 (quoting Matter of M-A-M-,

25 I. & N. Dec. at 480)). At the time of the first 2017 hearing, the MHR was

nearly a year old. There were also specific indications that, after the date of the

MHR, DHS provided medical care to Jasso Bernal and, thus, likely possessed

records relevant to his mental competency. Despite these indications, DHS did not


                                          3
provide, and the IJ did not request, additional material in DHS’s possession that

would inform the court about Jasso Bernal’s competency. See id. Thus, the IJ

departed from the requirements of Matter of M-A-M-, and the BIA abused its

discretion in affirming the IJ’s competency determinations without explaining why

it permitted that departure.

      The petition is GRANTED. The case is REMANDED to the BIA with

instructions to remand to the IJ for further proceedings in accordance with this

disposition, including a competency determination based on current mental health

reviews and medical records, as well as any other relevant evidence.




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