Gonzalez Molina v. Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 21, 2024
• Docket: 22-1930
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION FEB 21 2024 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

CLAUDIA PATRICIA GONZALEZ No. 22-1930 MOLINA; UZIEL HASBAI SANCHEZ GONZALEZ, Agency Nos. A206-269-972 Petitioners, A206-269-973

v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted February 14, 2024** Pasadena, California

Before: W. FLETCHER, NGUYEN, and LEE, Circuit Judges.

Claudia Patricia Gonzalez Molina (“Gonzalez Molina”) and her minor son,

Uziel Hasbai Sanchez Gonzalez, (collectively, “petitioners”), natives and citizens

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). of Honduras, petition for review of a decision of the Board of Immigration Appeals

(“BIA”). The BIA affirmed the Immigration Judge’s (“IJ”) denial of petitioners’

motion to reopen their removal proceedings.

We have jurisdiction under 8 U.S.C. § 1252. We review the BIA’s denial of

a motion to reopen under the abuse of discretion standard and uphold the denial

unless the BIA “acted arbitrarily, irrationally, or contrary to law.” Najmabadi v.

Holder, 597 F.3d 983, 986 (9th Cir. 2010). Under the abuse of discretion standard,

factual findings are upheld so long as they are supported by substantial evidence,

and legal questions are reviewed de novo. Id. We deny the petition.

Petitioners’ motion to reopen asserts that Gonzalez Molina takes two daily

prescription medications to treat anxiety and depression, a fact she did not tell her

counsel or the court at the time of the merits hearing. Petitioners argue that side

effects from medication caused Gonzalez Molina’s “inconsistent and incoherent

testimony” at the merits hearing and that her testimony contained clear indications

that she lacked competency, such that the IJ violated its independent duty to

inquire into her competency.

An alien is “competent to participate in immigration proceedings” if he or

she “has a rational and factual understanding of the nature and object of the

proceedings, can consult with the attorney or representative if there is one, and has

2 a reasonable opportunity to examine and present evidence and cross-examine

witnesses.” Matter of M-A-M, 25 I. & N. Dec. 474, 479 (BIA 2011). In a motion

to reopen, the petitioner must show that the evidence that is the basis for the

motion “is material and was not available and could not have been discovered or

presented at the former hearing.” Ayala v. Sessions, 855 F. 3d 1012, 1020 (9th Cir.

2017) (quoting 8 C.F.R. § 1003.23(2), (3)). Additionally, to show prima facie

eligibility for relief on a motion to reopen, the petitioner must demonstrate “a

reasonable likelihood that the petitioner would prevail on the merits if the motion

to reopen were granted.” Fonseca-Fonseca v. Garland, 76 F. 4th 1176, 1179 (9th

Cir. 2023).

The BIA affirmed the IJ’s denial of petitioners’ motion to reopen on two

grounds. Either ground is a sufficient basis for us to deny the petition.

First, the BIA found that because Gonzalez Molina began taking the

medications prior to the merits hearing, she had not met her burden to show that

the evidence that was the basis for her motion to reopen was ‘new’ and could not

have been raised at the merits hearing. Gonzalez Molina admits that she began

taking the medication before the merits hearing, and that she did not raise the issue

to counsel or the IJ.

3 Second, the BIA found that Gonzalez Molina had not shown a reasonable

likelihood that she would be deemed incompetent if, based on the evidence she

now seeks to present, her motion to reopen were granted. Based on the transcript

of the merits hearing, Gonzalez Molina’s testimony did not raise “indicia of

incompetency.” Salgado v. Sessions, 889 F.3d 982, 989 (9th Cir. 2018). Gonzalez

Molina has not explained how her mental health diagnosis or prescription drug use

made her incompetent.

PETITION DENIED.