Neptali Loreto Morales v. Merrick Garland, 19-70404

Background:

Petitioner Neptali Loreto Morales, a Salvadoran/Mexican national, sought asylum and withholding of removal; the BIA affirmed an IJ's denial and Morales petitioned for review under 8 U.S.C. § 1252.
On the eve of his removal hearing counsel asserted Morales "just informed [him] a couple days ago that he has severe PTSD," and requested a competency evaluation or a short continuance to gather evidence.
The IJ denied a competency inquiry and a continuance; the BIA affirmed, finding the PTSD allegation was an uncorroborated, bare assertion insufficient to show incompetency.
The IJ also found Morales not credible regarding alleged coordination between Mexican and El Salvadoran gangs and concluded Morales failed to show a well‑founded fear of persecution in El Salvador.
The court denied Morales’ motion to supplement the record with extra-record mental‑health evidence and declined to review IJ findings the BIA did not adopt.
The Ninth Circuit denied the petition, upholding the agency’s rulings on competency inquiry, continuance denial, and the asylum credibility/substantial‑evidence determination.

Issues:

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the IJ/BIA abused discretion by not conducting a competency inquiry	Morales: counsel’s statement that Morales has "severe PTSD" indicated incompetency and required inquiry	Government: statement was a bare, uncorroborated assertion; no indicia of inability to participate	No abuse; bare PTSD claim without details or evidence insufficient to trigger inquiry
Whether denial of a continuance to develop competency evidence was abuse of discretion	Morales: needed time to obtain records/evidence of PTSD	Government: two weeks unlikely to produce meaningful evidence; issue raised at the last minute after years of proceedings	No abuse; Cui factors (importance, delay, inconvenience, prior continuances) support denial
Whether substantial evidence supports denial of asylum/withholding (fear of persecution in El Salvador)	Morales: gangs in Mexico would coordinate with El Salvadoran counterparts to target him as a former Mexican soldier	Government: record lacks evidence that Mexican persecutors have El Salvador counterparts or would coordinate; some assertions beyond Morales’s personal knowledge	Substantial evidence supports denial; credibility finding and lack of compelling evidence of cross‑border coordination upheld
Whether IJ/BIA applied incorrect legal standards (preponderance standard, time‑bar)	Morales: IJ used wrong preponderance standard and erred by ruling asylum time‑barred	Government: BIA did not adopt those IJ rulings; review limited to BIA’s decision	Court declined to review IJ’s separate errors because BIA did not adopt them; no reversible error by BIA

Key Cases Cited

Mejia v. Sessions, 868 F.3d 1118 (9th Cir. 2017) (applicant must show indicia of incompetency to trigger IJ’s independent duty to inquire)
Salgado v. Sessions, 889 F.3d 982 (9th Cir. 2018) (bare assertions of memory loss or similar symptoms insufficient to trigger competency inquiry)
Garland v. Dai, 141 S. Ct. 1669 (2021) (agency need not accept assertions outside a witness’s personal knowledge)
Lolong v. Gonzales, 484 F.3d 1173 (9th Cir. 2007) (insufficient evidence that persecutors in one country will have counterparts in another)
Cui v. Mukasey, 538 F.3d 1289 (9th Cir. 2008) (factors for reviewing denial of continuance)
Joseph v. Holder, 600 F.3d 1235 (9th Cir. 2010) (review limited to the BIA’s decision)
Fisher v. INS, 79 F.3d 955 (9th Cir. 1996) (court may not take judicial notice of extra‑record evidence)
Singh v. Ashcroft, 393 F.3d 903 (9th Cir. 2004) (exceptions to supplementation of the administrative record)