NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _______________

No. 18-1827 _______________

MESSIAS WEIDER ESTEVAO; LAUANNY ANTONIELLY SILVA-ESTEVAO; P. N. S.E.; P. H. S.E., Petitioners

v.

ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA, Respondent _______________

On Petition for Review of a Decision of the United States Department of Justice Board of Immigration Appeals (A202-126-940, A202-126-941, A202-128-340, A202-128-341) Immigration Judge: John B. Carle _______________

Submitted Under Third Circuit L.A.R. 34.1(a) on November 15, 2018

Before: GREENAWAY, JR., BIBAS, and FUENTES, Circuit Judges.

(Filed: February 1, 2019) _______________

OPINION * ______________

* This disposition is not an opinion of the full Court and, under I.O.P. 5.7, is not binding precedent. BIBAS, Circuit Judge.

An immigration judge need not analyze the mental competency of every alien he sees.

He need do so only if there is some sign of incompetency. Messias Estevao made a mistake

on his asylum application. That alone does not signal incompetency. So we will deny his

petition for review.

I. BACKGROUND

Estevao and his family are Brazilian citizens who entered the United States illegally in

2014. During removal proceedings, he applied for asylum, withholding of removal, and

protection under the Convention Against Torture. And he named his wife and children as

derivative beneficiaries.

At the merits hearing, Estevao told the immigration judge that this was the second time

he had unlawfully entered the United States: the first was in 2004. But he had not listed the

first entry on his asylum application. Nor had he mentioned it to his lawyer before the

hearing. He told the judge that he “didn’t understand that [he] had to put [it] down” on the

application. AR 150.

Estevao’s lawyer claimed that this error cast doubt on Estevao’s ability to understand

the proceedings. He asked for a short break so that he could confer with his client. The

judge denied that request, noting that Estevao had understood and answered all of his law-

yer’s other questions. His competency never came up again at the hearing.

After the hearing, the judge denied Estevao’s applications for relief and ordered him

and his family removed to Brazil. Estevao appealed, arguing that the judge should have

granted him the adjournment. The Board of Immigration Appeals affirmed.

2 Estevao did not petition for review. Instead, he asked the Board to reconsider. This

time, he argued only that the judge should have gauged Estevao’s mental competency. And

he asked the Board to remand the case for the judge to do so.

The Board denied the motion. It reasoned that “a sole instance of neglecting to mention

a prior entry on an asylum application is not, in itself, sufficient” to warrant a competency

assessment. AR 4. Estevao files this petition for review of that denial.

The Board had jurisdiction under

(g)(2) and

(b)(3)

and 1240.15. It exercised jurisdiction over the motion to reconsider under

(b). We have jurisdiction to review final orders of removal, including orders deny-

ing reconsideration, under

(a)(1). We review the Board’s denial of a motion

to reconsider for abuse of discretion. Castro v. Att’y Gen.,

(3d Cir. 2012).

II. FORGETTING TO LIST AN ENTRY IS NOT ENOUGH TO WARRANT A COMPETENCY EVALUATION

Immigration judges must look out for and “prescribe safeguards to protect the rights

and privileges of” mentally incompetent aliens. 8 U.S.C. § 1229a(b)(3); Matter of M-A-M-,

(2011). An alien is mentally incompetent if he does not un-

derstand “the nature and object of the proceedings” or cannot meaningfully take part in

them. Matter of M-A-M-, 25 I. & N. at 479. In Matter of M-A-M-, the Board set forth pro-

cedures for assessing and handling aliens who might be incompetent.

. Estevao

argues that the immigration judge erred by not following those procedures.

Those procedures are triggered if, and only if, the record contains signs of incompe-

tency.

. Signs can include the alien’s behavior at the hearing. For example,

3 he might not be able to stay on topic, or to understand questions and respond to them.

. Evidence that he suffers or suffered from certain mental illnesses could also count.

But not all mental illnesses, even serious ones, suffice. The touchstone is whether the

illness would “prevent [an alien] from meaningfully participating in immigration proceed-

ings.”

.

Here, the record reveals no sign of incompetency. Estevao relies solely on his apparent

failure to understand one question on his asylum application and on his attorney’s concerns

about that. But these raise no doubts about his ability to take part in the proceedings. As

the immigration judge said, “there are occasions when a person just neglects to put some-

thing like that on the application.” AR 153. And at the hearing itself, he had no problem

understanding and responding to every question.

Estevao’s failure to understand one question on his asylum application was an isolated

mistake, not a sign of incompetency. Because his lawyer’s concerns were based on the

same isolated mistake, they add nothing. And nothing else in the record suggests

incompetency. On the contrary, Estevao participated fully in his removal proceedings. So

the judge did not need to inquire into his competency, and Estevao’s procedural-due-pro-

cess claims fail. We will deny the petition for review.

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