NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JAN 7 2022
FOR THE NINTH CIRCUIT MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS
OMAR M. BAILEY, No. 18-73044 Petitioner, Agency No. A097-447-791 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General, Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted June 9, 2021 Seattle, Washington
Before: W. FLETCHER, WATFORD, and COLLINS, Circuit Judges.
Omar M. Bailey, a native and citizen of Jamaica, petitions for review of the
decision of the Board of Immigration Appeals (“BIA”) affirming the order of the
Immigration Judge (“IJ”) denying his applications for asylum, withholding of
removal, and protection under the Convention Against Torture. “We review for
abuse of discretion whether the BIA clearly departs from its own standards” with
respect to competency procedures. Mejia v. Sessions, 868 F.3d 1118, 1121 (9th
Cir. 2017). “We review factual findings, including adverse credibility
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. determinations, for substantial evidence.” Mukulumbutu v. Barr, 977 F.3d 924,
925 (9th Cir. 2020). A finding is supported by substantial evidence unless “‘any
reasonable adjudicator would be compelled to conclude to the contrary’ based on
the evidence in the record.” Ai Jun Zhi v. Holder, 751 F.3d 1088, 1091 (9th Cir.
2014) (quoting 8 U.S.C. § 1252(b)(4)(B)). We have jurisdiction under § 242 of the
Immigration and Nationality Act, 8 U.S.C. § 1252, and we deny the petition.
1. Bailey argues that the IJ abused his discretion by failing to conduct a
more thorough competency evaluation in light of asserted indicia of incompetency
demonstrated by Bailey during his proceedings, including the following: (1) in the
final moments of his proceedings, Bailey testified that a doctor at his immigration
detention facility recommended that he see a psychologist; (2) his claims for relief
were based in part on the allegation that he had been shot in the back of the head in
2016; and (3) as the IJ acknowledged in his decision, Bailey had given several
answers that were “unintelligible” and “nonresponsive.” Although Bailey did not
make this argument before the BIA, we may review this issue because the BIA
addressed in its decision whether the record raised a question as to Bailey’s
competency. Parada v. Sessions, 902 F.3d 901, 914 (9th Cir. 2018).
“Aliens in immigration proceedings are presumed to be competent and, if
there are no indicia of incompetency in a case, no further inquiry regarding
competency is required.” Salgado v. Sessions, 889 F.3d 982, 987 (9th Cir. 2018)
2 (quoting Matter of M-A-M-, 25 I. & N. Dec. 474, 474 (B.I.A. 2011)). Here, the IJ
was not alerted to a potential competency issue until near the end of Bailey’s final
removal hearing. Bailey had previously indicated that he had no mental or
physical problems, and the IJ observed him for a substantial amount of time across
multiple hearings, in which Bailey testified, submitted letters by witnesses, and
examined a witness. The transcript of the proceedings supports the agency’s
conclusion that Bailey did not demonstrate indicia of incompetency and that his
“unintelligible” and “nonresponsive” answers resulted when he was confronted
with problematic aspects of his statements. Further, although Bailey testified that
he was shot in the back of the head in 2016, none of the limited details he provided
about his injury triggered a suspicion of incompetency.
Although an IJ “‘must take measures’ to assess an individual’s competence
when there are indicia of incompetence,” the “‘approach taken in any particular
case will vary based on the circumstances.’” Calderon-Rodriguez v. Sessions, 878
F.3d 1179, 1182 (9th Cir. 2018) (quoting M-A-M-, 25 I. & N. Dec. at 480–81).
Upon learning about the recommendation by Bailey’s doctor that he see a
psychologist, the IJ asked Bailey about the basis for and the timing of that
recommendation, as well as whether Bailey ultimately saw the psychologist,
received a diagnosis, or was taking medication. Bailey told the IJ that he was
merely having trouble sleeping and talking in his sleep and that he was prescribed
3 sleeping pills but had stopped taking them. Based on those responses, and given
that the IJ had already observed Bailey over the course of multiple proceedings by
that point, the IJ did not abuse his discretion by conducting only a limited inquiry
before concluding that Bailey was competent. Further, the IJ complied with
agency standards by clearly articulating these reasons as the bases for his
determination that Bailey was competent. See Salgado, 889 F.3d at 987 (noting
that IJs “must articulate the rationale for their decisions regarding competency
issues” (quoting M-A-M-, 25 I. & N. Dec. at 474)).
2. Bailey claims that he was threatened and assaulted on multiple occasions
because he is bisexual, but the agency concluded that neither Bailey nor his two
witnesses testified credibly, and it therefore rejected his applications for relief. We
conclude that the agency provided “specific and cogent reasons supporting [the]
adverse credibility determination,” Shrestha v. Holder, 590 F.3d 1034, 1042 (9th
Cir. 2010), and that those reasons are supported by substantial evidence in the
record.
a. The agency properly relied upon significant inconsistencies and
omissions in Bailey’s statements. For example, Bailey testified before the IJ that
he was stabbed in 1998 and 2013 on account of his bisexuality, but he did not
mention these stabbings during his credible fear interview, even though the asylum
officer asked him to identify any additional instances in which he was threatened
4 or harmed based on his asserted bisexuality. Moreover, Bailey specifically told the
asylum officer that, during the 2016 shooting incident, the shooter only told him to
“get up” and “don’t move,” but Bailey testified at his removal hearing that the
shooter called him a homophobic slur. Further, Bailey provided inconsistent
statements about whether he had a suspicion about the identity of his shooter.
These inconsistencies are not “mere trivial error[s],” Shrestha, 590 F.3d at
1044, but rather important details about the events giving rise to Bailey’s claims
for relief. See id. at 1047 (“[W]hen an inconsistency is at the heart of the claim it
doubtless is of great weight.”). Bailey argues that there are plausible reasons for
the discrepancies that are consistent with finding him to be credible. However, the
IJ considered his explanations and was not required to accept them. See Zamanov
v.
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JAN 7 2022
FOR THE NINTH CIRCUIT MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS
OMAR M. BAILEY, No. 18-73044 Petitioner, Agency No. A097-447-791 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General, Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted June 9, 2021 Seattle, Washington
Before: W. FLETCHER, WATFORD, and COLLINS, Circuit Judges.
Omar M. Bailey, a native and citizen of Jamaica, petitions for review of the
decision of the Board of Immigration Appeals (“BIA”) affirming the order of the
Immigration Judge (“IJ”) denying his applications for asylum, withholding of
removal, and protection under the Convention Against Torture. “We review for
abuse of discretion whether the BIA clearly departs from its own standards” with
respect to competency procedures. Mejia v. Sessions, 868 F.3d 1118, 1121 (9th
Cir. 2017). “We review factual findings, including adverse credibility
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. determinations, for substantial evidence.” Mukulumbutu v. Barr, 977 F.3d 924,
925 (9th Cir. 2020). A finding is supported by substantial evidence unless “‘any
reasonable adjudicator would be compelled to conclude to the contrary’ based on
the evidence in the record.” Ai Jun Zhi v. Holder, 751 F.3d 1088, 1091 (9th Cir.
2014) (quoting 8 U.S.C. § 1252(b)(4)(B)). We have jurisdiction under § 242 of the
Immigration and Nationality Act, 8 U.S.C. § 1252, and we deny the petition.
1. Bailey argues that the IJ abused his discretion by failing to conduct a
more thorough competency evaluation in light of asserted indicia of incompetency
demonstrated by Bailey during his proceedings, including the following: (1) in the
final moments of his proceedings, Bailey testified that a doctor at his immigration
detention facility recommended that he see a psychologist; (2) his claims for relief
were based in part on the allegation that he had been shot in the back of the head in
2016; and (3) as the IJ acknowledged in his decision, Bailey had given several
answers that were “unintelligible” and “nonresponsive.” Although Bailey did not
make this argument before the BIA, we may review this issue because the BIA
addressed in its decision whether the record raised a question as to Bailey’s
competency. Parada v. Sessions, 902 F.3d 901, 914 (9th Cir. 2018).
“Aliens in immigration proceedings are presumed to be competent and, if
there are no indicia of incompetency in a case, no further inquiry regarding
competency is required.” Salgado v. Sessions, 889 F.3d 982, 987 (9th Cir. 2018)
2 (quoting Matter of M-A-M-, 25 I. & N. Dec. 474, 474 (B.I.A. 2011)). Here, the IJ
was not alerted to a potential competency issue until near the end of Bailey’s final
removal hearing. Bailey had previously indicated that he had no mental or
physical problems, and the IJ observed him for a substantial amount of time across
multiple hearings, in which Bailey testified, submitted letters by witnesses, and
examined a witness. The transcript of the proceedings supports the agency’s
conclusion that Bailey did not demonstrate indicia of incompetency and that his
“unintelligible” and “nonresponsive” answers resulted when he was confronted
with problematic aspects of his statements. Further, although Bailey testified that
he was shot in the back of the head in 2016, none of the limited details he provided
about his injury triggered a suspicion of incompetency.
Although an IJ “‘must take measures’ to assess an individual’s competence
when there are indicia of incompetence,” the “‘approach taken in any particular
case will vary based on the circumstances.’” Calderon-Rodriguez v. Sessions, 878
F.3d 1179, 1182 (9th Cir. 2018) (quoting M-A-M-, 25 I. & N. Dec. at 480–81).
Upon learning about the recommendation by Bailey’s doctor that he see a
psychologist, the IJ asked Bailey about the basis for and the timing of that
recommendation, as well as whether Bailey ultimately saw the psychologist,
received a diagnosis, or was taking medication. Bailey told the IJ that he was
merely having trouble sleeping and talking in his sleep and that he was prescribed
3 sleeping pills but had stopped taking them. Based on those responses, and given
that the IJ had already observed Bailey over the course of multiple proceedings by
that point, the IJ did not abuse his discretion by conducting only a limited inquiry
before concluding that Bailey was competent. Further, the IJ complied with
agency standards by clearly articulating these reasons as the bases for his
determination that Bailey was competent. See Salgado, 889 F.3d at 987 (noting
that IJs “must articulate the rationale for their decisions regarding competency
issues” (quoting M-A-M-, 25 I. & N. Dec. at 474)).
2. Bailey claims that he was threatened and assaulted on multiple occasions
because he is bisexual, but the agency concluded that neither Bailey nor his two
witnesses testified credibly, and it therefore rejected his applications for relief. We
conclude that the agency provided “specific and cogent reasons supporting [the]
adverse credibility determination,” Shrestha v. Holder, 590 F.3d 1034, 1042 (9th
Cir. 2010), and that those reasons are supported by substantial evidence in the
record.
a. The agency properly relied upon significant inconsistencies and
omissions in Bailey’s statements. For example, Bailey testified before the IJ that
he was stabbed in 1998 and 2013 on account of his bisexuality, but he did not
mention these stabbings during his credible fear interview, even though the asylum
officer asked him to identify any additional instances in which he was threatened
4 or harmed based on his asserted bisexuality. Moreover, Bailey specifically told the
asylum officer that, during the 2016 shooting incident, the shooter only told him to
“get up” and “don’t move,” but Bailey testified at his removal hearing that the
shooter called him a homophobic slur. Further, Bailey provided inconsistent
statements about whether he had a suspicion about the identity of his shooter.
These inconsistencies are not “mere trivial error[s],” Shrestha, 590 F.3d at
1044, but rather important details about the events giving rise to Bailey’s claims
for relief. See id. at 1047 (“[W]hen an inconsistency is at the heart of the claim it
doubtless is of great weight.”). Bailey argues that there are plausible reasons for
the discrepancies that are consistent with finding him to be credible. However, the
IJ considered his explanations and was not required to accept them. See Zamanov
v. Holder, 649 F.3d 969, 974 (9th Cir. 2011).
b. The agency also permissibly concluded that Bailey’s two witnesses, each
of whom submitted a letter and testified at the final removal hearing, were not
credible. First, although Bailey stated that he was shot five months after his
cousin’s death, David Clark’s letter indicated that Bailey was shot on the same day
that Bailey’s cousin was killed, while Clark’s oral testimony claimed that the
incidents occurred two years apart. Second, Clark wrote in his letter and testified
that Bailey was present when his cousin was killed, whereas Bailey testified that he
learned about the death over the phone. Third, Bailey testified that he spoke to
5 Clark regarding an issue with Clark’s letter to the court, but Clark denied that he
and Bailey had discussed the letter.
There were also inconsistencies as to whether Bailey had told Clark or his
second witness, Troy Robinson, that he was bisexual. Clark’s testimony was
inconsistent with Bailey’s statements that Bailey did not tell Clark that he was
bisexual or that he was shot on account of his sexual orientation. The same
inconsistencies were present in Robinson’s testimony, and neither witness’s letter
mentioned Bailey’s bisexuality at all. The agency permissibly relied upon the
inconsistencies in the witnesses’ testimony in making its adverse credibility
determinations. See Kin v. Holder, 595 F.3d 1050, 1056–57 (9th Cir. 2010).
c. The agency also permissibly relied upon Bailey’s demeanor and
responsiveness to questions, and the record supports the agency’s conclusion that
Bailey provided “unintelligible” and “nonresponsive” answers when asked
questions concerning potential inconsistencies in his statements. See 8 U.S.C.
§ 1158(b)(1)(B)(iii) (requiring the IJ to consider “the demeanor, candor, or
responsiveness of the applicant”); see also Shrestha, 590 F.3d at 1041 (noting that
“IJs are in the best position to assess demeanor and other credibility cues that we
cannot readily access on review”).
d. The agency also permissibly concluded that Bailey had failed to provide
corroborating documentary evidence to support his claims given that the IJ
6 adequately warned him that such documentation was necessary and provided him
the opportunity to obtain it. See Jie Shi Liu v. Sessions, 891 F.3d 834, 838 (9th Cir.
2018); Ren v. Holder, 648 F.3d 1079, 1093 (9th Cir. 2011).
In light of these various deficiencies in proof, the agency properly concluded
that Bailey had failed to carry his burden on his asylum and withholding of
removal claims. See Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir. 2003).
3. The agency also properly concluded that Bailey had not carried his
burden to establish that it was more likely than not that he would be tortured if
returned to Jamaica and that Bailey’s claim under the Convention Against Torture
therefore failed. Although the IJ’s decision did not specifically mention the
country conditions evidence that had been submitted, the IJ properly concluded
that, on the record as a whole, Bailey had not shown that he was likely to be
tortured. Given the “complete lack of credible testimony in this case,” the
generalized country condition evidence in the record did not establish that Bailey
confronted a “particularized risk of torture” if removed to Jamaica. See Lalayan v.
Garland, 4 F.4th 822, 840 (9th Cir. 2021).
The petition for review is DENIED.