In a wonderful decision this week, the Ninth Circuit held that a noncitizen who is subject to reinstatement of removal because of an old removal order can still file a motion to reopen to challenge the underlying removal order. The amazing Kari Hong and her law students at Boston College represented the client in this case. In a less wonderful decision, the Ninth Circuit held that if a noncitizen is going to claim a lack of competency, the person must show some inability to comprehend or to assist and participate in the proceedings. Simply claiming (without any evidence) that the noncitizen was in a car accident and that the car accident affected the noncitizen’s memory is not sufficient to establish a lack of competency. No cases came down this week from the Board of Immigration Appeals or from the Attorney General.
A Reinstatement of Removal Order Does Not Bar a Noncitizen from Filing a Motion to Reopen
Even if a noncitizen is subject to reinstatement of removal and ultimately obtains withholding of removal, she can still file a motion to reopen and vacate the underlying removal order. Ms. Miller is a native and citizen of El Salvador. She “fled her home country after suffering horrific abuse there on account of her race.” Miller v. Sessions, No. 15-72645, slip op. at 7 (9th Cir. May 8, 2018). According to the attorney on the case, the abuse was much worse than was detailed in the opinion. Ms. Miller unlawfully entered the United States in 2004, was put into proceedings and was served with a Notice to Appear (NTA) that told her to appear “on a date to be set at a time to be set.” (I think we should challenging all NTAs that have language as invalid). Ms. Miller gave EOIR and ICE her address but the notices of hearing came back as undeliverable. On May 7, 2004, Ms. Miller was ordered removed in absentia when she failed to appear at an immigration hearing. In 2011, Ms. Miller moved to Canada and applied for refugee status. The Canadian government denied her application. In 2013, she attempted to reenter the United States unlawfully once again. She was caught at the border and that was when she found out about the 2004 in absentia removal order. DHS reinstated the removal order and she was placed in criminal proceedings for illegal reentry. She pleaded guilty to illegal reentry. In immigration court she requested withholding of removal. In April 2014, the immigration court granted her withholding of removal.
In July 2014, after the immigration and criminal proceedings had concluded, Ms. Miller filed a motion to reopen and rescind the 2004 in absentia removal order so she could apply for asylum. The immigration judge denied the motion. He said that he lacked jurisdiction under INA § 241(a)(5) (reinstatement of removal orders). Section 241(a)(5) states that “the prior order of removal is reinstated from its original date and is not subject to being reopened or reviewed.” INA § 241(a)(5). If you stop reading the opinion at that point, you have to agree with the Immigration Judge – which is what the BIA did.
The case was appealed to the Ninth and the issue before the Ninth was whether Section 241(a)(5) (reinstatement of removal) bars an immigration judge from entertaining a motion to reopen under Section 240(b)(5)(C)(ii) (which provides that a motion to reopen may be granted at any time if the noncitizen proves that she did not receive notice)? The Ninth Circuit found that while due process challenges to a removal order may not be challenged in reinstatement proceedings, they may be challenged in a motion to reopen. Here’s the key language: “[A]n individual placed in reinstatement proceedings under § 1231(a)(5) [INA § 241(a)(5)] cannot as a general rule challenge the validity of the prior removal order in the reinstatement proceeding itself. But she retains the right conferred by § 1229a(b)(5)(C)(ii) [INA § 240(b)(5)(C)(ii)] to seek recission of a removal order entered in absentia, based on a lack of notice by filing a motion to reopen at any time. Miller No. 15-72645, slip op. at 11-12. The Ninth noted in a footnote that a noncitizen can challenge the validity of the prior order in the reinstatement proceeding itself in cases involving a “gross miscarriage of justice.” Garcia de Rincon v. Department of Homeland Security, 539 F.3d 1133 (9th Cir. 2008).
It’s important to note that while this case allows for motions to reopen in absentia cases where the noncitizen has a prior removal order, you might be able to make a strong case for a motion to reopen for other due process violations, such as ineffective assistance of counsel.
Miller v. Sessions, No. 15-72645, (9th Cir. May 8, 2018).
A Poor Memory Without Some Credible Evidence of an Inability to Comprehend or Meaningfully Participate in Proceedings
The noncitizen in this case is a long-time permanent resident who was placed into removal proceedings on alien smuggling allegations. He claimed that he was not competent because prior to the hearing he was involved in a car accident that affected his memory. The Immigration Judge and the BIA ultimately denied the case in an act of discretion. Because you cannot appeal discretionary issues to the Ninth (federal courts lack jurisdiction over discretionary decisions), the attorney in this case filed an appeal based on the Immigration Judge’s refusal to grant a continuance to determine Mr. Salgado’s competency. The Ninth Circuit held that there were no indicia of incompetency and that in any case Mr. Salgado’s due process rights were protected by his attorney.
Mr. Salgado became a lawful permanent resident of the United States in 1981. In 2006 he attempted to smuggle a friend’s child into the United States by stowing him under the back seat as he crossed the border with his two U.S. citizen sons. Mr. Salgado confessed to the crime of smuggling and requested cancellation of removal for lawful permanent residents. During the pendency of proceedings, Mr. Salgado paid to have his wife and her child smuggled to the United States. (He should have hired an immigration lawyer and filed an I-130, but that’s an entirely different blog post). In 2013, Mr. Salgado appeared for his individual hearing. He claimed that a week before the hearing, he had been involved in a small car accident that resulted in memory loss. He claimed that he hit another car while driving at between 35-40 miles per hour on highway I-5. He stated that he did not go see a doctor after the accident, and that he did not file a police report about the accident, but he claimed that he was having memory issues. At the hearing, Mr. Salgado had difficulty remembering dates, and addresses. The Immigration Judge denied the case in an exercise of discretion. She found that he had following negative discretionary factors: two DUI convictions, a conviction for domestic violence, he helped his wife illegally enter the United States on more than one occasion, he owned a home in Mexico, and his U.S. citizen children lived in Mexico during their formative years. The IJ weighed those negative factors against the positive factors which included his long residency in the United States, his two U.S. citizen children, and his job at Coronado Brewery. She denied the case in an exercise of discretion.
The case went to the Board of Immigration Appeals and the BIA found that although Mr. Salgado had trouble remembering dates and addresses there was no evidence that he lacked a “rational and factual understanding of the nature and object of the proceedings.” Salgado v. Sessions, No. 14-71890 (9th Cir. May 8, 2018) slip op. at 8. The BIA further found that Mr. 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) (M-A-M- discusses the threshold for competency in immigration proceedings).
Mr. Salgado appealed this decision to the Ninth arguing that the immigration court erred by not granting a request for a continuance when Mr. Salgado’s competency was questioned. He asserted that a lack of medical evidence of mental illness was not dispositive on the issue of competency. The Ninth Circuit held that alleged poor memory without some credible evidence of an inability to comprehend or meaningfully participate in the proceedings does not constitute indicia of incompetency. The Ninth Circuit held: “To demonstrate mental incompetency, a person must show some inability to comprehend or to assist and participate in the proceedings, some inability to consult with or assist their counsel or their representative, if pro se, and lack a reasonable opportunity to present evidence and examine witnesses, including cross-examination of opposing witnesses. The mere inability to recall some events, a common weakness, or other similar mental lapses, are not sufficient to show mental incompetency.” Salgado, No. 14-71890, slip op. at 14-15. The Ninth went on to note that there was no evidence that Mr. Salgado did not understand the nature or object of the proceedings. They noted that Mr. Salgado was represented by counsel, and there was no evidence that he was unable to meaningfully assist counsel’s defense efforts. They held that the immigration court did not err in denying his request for a mental health evaluation and the BIA was correct to conclude that he did not show indicia of incompetency.
Salgado v. Sessions, No. 14-71890 (9th Cir. May 8, 2010).