Veronica Rico-Landaverde v. Eric Holder, Jr.

concurring in part and dissenting in part.

I agree with the majority that we lack jurisdiction over petitioner Veronica Flor Rico-Landaverde’s claim that the IJ erred in finding her application for asylum untimely. And I also agree that our caselaw forecloses her argument that her conviction for endangerment is not a crime involving moral turpitude. But because I conclude that the IJ did not correctly apply the framework for determining competency set out in Matter of M-A-M-, 25 I. & N. Dec. 474 (BIA 2011), I think we should send the case back so the agency can apply its own binding precedent. And so, I respectfully dissent.

In Matter of M-A-M- , the Board of Immigration Appeals (BIA) announced the test for determining whether an alien is competent and set out a legal framework for making that determination. 25 I. & N. Dec. at 479-484 . The BIA summarized its decision as follows:

Id. at 484 .

Under the framework articulated in Matter of M-A-M- , respondents 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. But where indicia of incompetency exist, the IJ “must…

MEMORANDUM **

Veronica Flor Rico-Landaverde petitions for review of the Board of Immigration Appeal’s dismissal of her appeal from the Immigration Judge’s final order of removal. Except as noted below, we have jurisdiction pursuant to 8 U.S.C. § 1252 . We DISMISS IN PART and DENY IN PART the petition.

The court lacks jurisdiction to consider Rico-Landaverde’s argument that the IJ erred in finding her asylum application untimely. Rico-Landaverde argues that the IJ should have considered whether her depression prevented her from complying with the one-year deadline, but she did not raise this argument before the BIA. 1 8 U.S.C. § 1252 (d)(1); Barron v. Ashcroft, 358 F.3d 674, 677-78 (9th Cir.2004). The court also lacks jurisdiction to consider the unexhausted question of whether Rico-Landaverde’s due process rights were violated when the IJ failed to inform her of her apparent eligibility for a U Visa. 2 Brezilien v. Holder, 569 F.3d 403, *668 412 (9th Cir.2009); Tall v. Mukasey, 517 F.3d 1115, 1120 (9th Cir.2008); Barron, 358 F.3d at 678 . These aspects of the petition are dismissed.

Rico-Landaverde’s argument that her conviction for endangerment under A.R.S. § 13-1201 is not a…

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS FILED

FOR THE NINTH CIRCUIT APR 20 2015

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

VERONICA FLOR RICO- No. 14-70779

LANDAVERDE,

Agency No. A076-635-677 Petitioner,

v. MEMORANDUM*

ERIC H. HOLDER, Jr., Attorney General,

Respondent.

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

Argued and Submitted April 8, 2015 Pasadena, California

Before: SILVERMAN and BEA, Circuit Judges and DONATO,** District Judge.

Veronica Flor Rico-Landaverde petitions for review of the Board of

Immigration Appeal’s dismissal of her appeal from the Immigration Judge’s final

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The Honorable James Donato, District Judge for the U.S. District Court for the Northern District of California, sitting by designation. -2- order of removal. Except as noted below, we have jurisdiction pursuant to

U.S.C. § 1252. We DISMISS IN PART and DENY IN PART the petition.

The court lacks…