Marlon Sibrian v. Merrick Garland

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 11 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT MARLON RUDY SIBRIAN, AKA Jairo No. 18-71993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 …

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