Marlon Sibrian v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 11, 2022
• Docket: 18-71993
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 11 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

MARLON RUDY SIBRIAN, AKA Jairo No. 18-71993 Artega, AKA Marlin Rudy Sibrian, AKA Marlon Sibrian, AKA Marlon R. Sibrian, Agency No. A095-721-224 AKA Marlon Willy Sibrian, AKA Skinny Sibrian, MEMORANDUM* Petitioner, v.

MERRICK B. GARLAND, Attorney General,

Respondent.

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

Argued and Submitted March 18, 2022 San Francisco, California

Before: CHRISTEN and BRESS, Circuit Judges, and LYNN,** District Judge. Partial Dissent by Judge BRESS

Petitioner Marlon Rudy Sibrian (“Sibrian”), a citizen of El Salvador, seeks

review of a Board of Immigration Appeals (“BIA”) decision affirming the order of

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Barbara M. G. Lynn, Chief United States District Judge for the Northern District of Texas, sitting by designation. an Immigration Judge (“IJ”) finding him ineligible for cancellation of removal and

denying his applications for asylum, withholding of removal, and relief under the

Convention Against Torture (“CAT”). We review for substantial evidence and

may grant relief only if the record compels a contrary conclusion. Yali Wang v.

Sessions, 861 F.3d 1003, 1007 (9th Cir. 2017). We have jurisdiction under

8 U.S.C. § 1252, and we deny the petition. Because the parties are familiar with

the facts, we do not recount them here.

In his petition in this court, Sibrian argued that the Department of Homeland

Security (“DHS”) failed to identify indicia of mental illness or share information

about his mental illness with the IJ, in alleged violation of the injunction in

Franco-Gonzalez v. Holder, No. CV–10–02211 DMG (DTBx), 2014 WL 5475097

(C.D. Cal. Oct. 29, 2014). The government’s response suggested that Sibrian

failed to exhaust his due process claim. The government’s contention runs

contrary to the rationale of Franco-Gonzalez, which does not rely on potentially

mentally ill detainees to raise their own mental health concerns, but instead

requires DHS to routinely screen detainees for mental illness.

After the government disclosed during oral argument that it believed it had

complied with Franco-Gonzalez, we requested that the government provide

supplemental excerpts of the record demonstrating its compliance, and it did so.

We have carefully reviewed the government’s filing and conclude there is no basis

2 to believe the government failed to adhere to Franco-Gonzalez, or that Sibrian

suffered from sufficiently severe mental illness. We do not now decide how an

exhaustion analysis could differ in a future situation in which a petitioner suffers

from mental illness and the government fails to comply with Franco-Gonzalez.

Because the record in this case shows that Sibrian’s mental health issues did not go

unaddressed at the administrative level and the Franco-Gonzalez screening process

functioned as intended, Sibrian’s claims relating to his mental health are denied.1

The IJ’s decision to deny Sibrian’s applications for asylum, withholding of

removal, and relief under CAT is supported by substantial evidence.

In addition, Sibrian petitioned for relief from the IJ’s order finding him

ineligible for cancellation of removal. Sibrian’s appeal is foreclosed by this

Court’s decision in Silva v. Garland, 993 F.3d 705, 717 (9th Cir. 2021), which

affirmed that a violation of California Penal Code § 484(a) constitutes a crime

involving moral turpitude, rendering Sibrian ineligible for cancellation of removal

based on his two prior convictions for violating California Penal Code § 484(a).

See 8 U.S.C. § 1229b(a); 8 U.S.C. § 1227(a)(2).

PETITION FOR REVIEW DENIED.

1 In light of our request for the government to provide supplemental excerpts of the record demonstrating the government’s compliance with Franco-Gonzalez, we deny as moot the government’s motion to strike documents attached to Sibrian’s pro se reply on the grounds that the documents were not part of the administrative record.

3 FILED AUG 11 2022 Sibrian v. Garland, No. 18-71993 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS BRESS, Circuit Judge, dissenting in part:

I part ways with the majority only as to Sibrian’s due process claim. Rather

than deny it, I would dismiss this aspect of the petition for lack of jurisdiction.

Under 8 U.S.C. § 1252(d), we lack jurisdiction over issues that a petitioner

did not exhaust before the agency. Barron v. Ashcroft, 358 F.3d 674, 677–78 (9th

Cir. 2004). A failure to exhaust may be excused only when resort to the agency

would have been futile. Sun v. Ashcroft, 370 F.3d 932, 942 (9th Cir. 2004). Here,

Sibrian did not raise before the IJ or BIA any claims relating to his alleged mental

illness. Even if there could be some circumstances in which a severely mentally ill

petitioner who did not receive the benefit of the injunction in Franco-Gonzalez v.

Holder, 2014 WL 5475097 (C.D. Cal. Oct. 29, 2014), may not be required to exhaust

issues of mental health before the agency, Sibrian has not demonstrated that he was

unable to raise competency issues before the IJ or BIA. Section 1252(d)’s

exhaustion requirement should therefore continue to apply. I would thus dismiss

Sibrian’s unexhausted due process challenge for lack of jurisdiction.