AGAPITO GAMEZ GARCIA, AKA Agapito Gamez, Pete Agapito Gamez, AKA Agapito GamezGarcia v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
AGAPITO GAMEZ GARCIA, AKA
Agapito Gamez, Pete Agapito Gamez, AKA
Agapito GamezGarcia,
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 20-71355
Agency No. A090-182-719
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted October 19, 2021
San Francisco, California
Before: GOULD and BEA, Circuit Judges, and VITALIANO,** District Judge.
1. Petitioner Agapito Gamez Garcia (Gamez) seeks review of a Board of
Immigration Appeals (BIA) decision which affirmed an Immigration Judge (IJ)
decision which denied his various applications for relief. For the following reasons,
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The Honorable Eric N. Vitaliano, United States District Judge for the
Eastern District of New York, sitting by designation.
FILED
NOV 22 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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we deny-in-part and dismiss-in-part Gamez’s petition for review.
2. The parties are familiar with the facts of the case, so we do not recite them
here. Gamez first argues that the BIA committed error when it affirmed the IJ’s
decision to not hold a competency hearing pursuant to Matter of M-A-M-, 25 I. & N.
Dec. 474 (BIA 2011). However, Gamez failed to submit any evidence that he
merited a competency hearing. Accordingly, the BIA was correct to affirm the IJ’s
decision not to hold a competency hearing pursuant to M-A-M-.
3. Gamez next argues that the BIA committed error when it determined that
he failed to establish membership in three particular social groups (PSGs) which
each required mental illness, even though he had prescriptions for medications that
could be used as antidepressants. However, Gamez produced no documentation
from a physician stating that he suffered from a mental illness. Moreover, both
amitriptyline and sertraline, antidepressants prescribed to Gamez over the course of
the past several years, have been demonstrated in peer-reviewed scientific articles to
be effective in treating diabetic neuropathy, a chronic condition experienced by
Gamez.1 Accordingly, substantial evidence supports the BIA’s determination that
Gamez failed to establish membership in three PSGs requiring mental illness.
1 See, e.g., M.B. Max et. al, Amitriptyline relives diabetic neuropathy pain in patients
with normal or depressed mood, 37(4) Neurology 589 (1987); P.J. Goodnick et. al.,
Sertraline in diabetic neuropathy: preliminary results, 9(4) Annals of Clinical
Psychiatry 255 (1997).

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4. Gamez next argues the BIA committed error when it failed to afford him
protection under the Convention Against Torture (CAT), in part by “improperly
reject[ing] [588 pages of documents proffered as evidence] as untimely.” The BIA
did commit error when it failed to address the IJ’s untimeliness rejection on the
grounds that “respondent has not shown that he fears future persecution on account
of a viable social group.” (emphasis added). This is legally incorrect, as the
documents rejected by the IJ as untimely, which were submitted in support of
Gamez’s Form I-589, applied as much to Gamez’s applications for asylum and
withholding of removal, which both require membership in a PSG, as they did to
Gamez’s application for CAT relief, which does not require membership in a PSG.
Put differently, the BIA misstated the breadth of claims those 588 pages of
documents applied to when it declined to address the IJ’s rejection of these materials
as untimely submitted.2 However, the excluded documents are simply not relevant
to Gamez’s particular risk for the possibility of future torture. Hence, no prejudice
resulted from the rejection of the proffered 588 pages of documents; therefore, this
error is harmless. See Alanniz v. Barr, 924 F.3d 1061, 1068 (9th Cir. 2019).
5. Finally, Gamez asserts that he “challenges the Board’s and IJ’s due process
failures to provide a fair hearing and to consider the entire record” in connection
2 Compare 8 C.F.R. § 208.13(b) (asylum) and 8 C.F.R. § 1208.16(b) (withholding
of removal) with 8 C.F.R. § 1208.16(c) (protection under the CAT).

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with his application for cancellation of removal. 8 U.S.C. § 1252(a)(2)(B)(i)
“eliminates our jurisdiction to review discretionary decisions concerning
cancellation of removal unless the petition raises a cognizable legal or constitutional
question concerning that determination.” Safaryan v. Barr, 975 F.3d 976, 989 (9th
Cir. 2020) (cleaned up). Gamez’s “fair hearing” due process challenge was duly
reviewed and found lacking. The only remaining cognizable legal challenges relate
to 1) the ability of Gamez’s credible testimony dispositively to establish facts, and
2) the BIA’s engagement in impermissible fact-finding to determine that the amount
of methamphetamine possessed by Gamez was “equivalent to 19,000 doses,” a fact
not found by the IJ. The credible testimony argument was proffered before Garland
v. Dai, 141 S. Ct. 1669, 1677–78 (2021) was decided, which now forecloses it. And
while Gamez is correct that the BIA engaged in impermissible fact-finding with
respect to the specific amount of methamphetamine in his possession, evidence in
the record, namely the police report, supports the inference that Gamez’s possession
of narcotics was not solely for personal use. We lack jurisdiction over Gamez’s
remaining arguments as to cancellation of removal.
6. For the foregoing reasons, we DENY IN PART and DISMISS IN PART
Gamez’s petition for review.

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