Bistermu Mora Salgado v. Jefferson Sessions
889 F.3d 982
| 9th Cir. | 2018Background
- Salgado, a lawful permanent resident who entered the U.S. in 1981, faced removal after admitting he attempted to smuggle a child in 2006; removal proceedings were delayed from 2006 to 2013.
- At the 2013 merits hearing Salgado reported recent memory problems from a minor car accident and his counsel requested a continuance for a medical exam; the IJ denied it.
- Salgado gave inconsistent, vague testimony about addresses, residence history, and past events; he has criminal convictions (two DUIs, domestic violence, trespass/theft) and admitted paying to smuggle his wife into the U.S. on multiple occasions.
- The IJ found Salgado competent to testify, assumed arguendo he met residency eligibility, but denied cancellation of removal in the exercise of discretion because adverse factors outweighed positives.
- A three-judge BIA panel affirmed both the competency determination and the discretionary denial, concluding Salgado showed only poor memory rather than inability to understand or participate.
- The Ninth Circuit denied Salgado’s petition, holding memory lapses without evidence of inability to comprehend or assist do not establish incompetency and any error was harmless to the discretionary denial.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether IJ abused discretion by denying continuance for mental evaluation when competency questioned | Salgado: recent accident-caused memory loss made him incompetent and warranted medical evaluation/continuance | Government: no indicia of incompetency; Salgado could understand and participate; no medical proof required | Denied — poor memory alone does not show incompetency; IJ did not abuse discretion in refusing continuance |
| Whether any alleged incompetency prejudiced cancellation-of-removal outcome | Salgado: poor memory affected ability to establish continuous residence and seek relief | Government: IJ’s discretionary denial rested on adverse conduct and ties, not memory gaps; result would be same | Held harmless/no prejudice — IJ assumed eligibility and denied relief on discretionary grounds unrelated to memory lapses |
Key Cases Cited
- Calderon-Rodriguez v. Sessions, 878 F.3d 1179 (9th Cir. 2017) (IJ must take measures to assess competency when indicia exist)
- Mejia v. Sessions, 868 F.3d 1118 (9th Cir. 2017) (clear indicia of serious mental illness require IJ to articulate competency inquiry and safeguards)
- Nelson v. INS, 232 F.3d 258 (1st Cir. 2000) (complaints of poor memory and headaches do not necessarily show incompetency)
- Nee Hao Wong v. INS, 550 F.2d 521 (9th Cir. 1977) (memory lapses alone insufficient to establish incompetency)
- Romero-Torres v. Ashcroft, 327 F.3d 887 (9th Cir. 2003) (court lacks jurisdiction to review BIA discretionary denial of cancellation based on hardship)