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U,S, Department of Justice.

Decision of the Board of Immigl'ation Appeals

Executive Office for Immigration Review Falls Church, Virginia 20530

Tacoma, WA

File:

Date:

SEP •. 52014 In re: IN REMOVAL PROCEEDINGS APPEAL ON BEHALF OF RESPONDENT: Erica Schommer, Esquire CHARGE: Notice: Sec,

237(a)(2)(A)(iii), I&N Act [8 U,S.C. § 1227(a)(2)(A)(iii)] ~ Convicted of aggravated felony

APPLICATION: Convention Against Torture

On March 10,2014, an Immigration Judge denied the respondent's application for deferral of removal pursuant to the regulations implementing the United States' obligations under the Convention Against Tortu1'e ("CAT"), The respondent, a native and citizen of Mexico, now appeals. The appeal will be sustained, and the record will be remanded. We review an Immigration Judge's findings of fact, including findings regarding witness credibility and what is likely to happen to the respondent, under a "clearly erroneous" standard, 8 C.F.R. § 1003.l(d)(3)(i); Vitug v, Holder, 723 FJd 1056, 1063 (9th Cir, 2013); Ridore v. Holder, 696 F.3d 907,915-16 (9th Cir, 2012), We review all other issues, including questions of law, discretion, and judgment, under a de novo standard. 8 C,F.R. § 1003,1(d)(3)(ii), The respondent's application was filed aJter May 11,2005, and thus, is governed by the REAL ID Act, Matter ofS-B-, 24 I&N Dec. 42 (BlA 2006). The Immigration Judge found the respondent to be credible (U. at 12). According to the record, the respondent takes multiple medications for schizophrenia, bipolar disorder, impulse control disorder, paranoid personality disorder, antisocial personality disorder, and depression (U. at 6; Respondent's Br. at 3; n, at 63; Exh. 8, Tab A, Tab B at 156),1 He testified that when he stops taking his medication, he becomes paranoid and angry, and thinks that people are talking about and laughing at him (U. at 6; Respondent's Br. at 3; n, at 65-66,67-68). I-Ie also reacts without the ability to control himself (Respondent's Br. at 3; Tr. at 66). The respondent also explained that he is delusional and suicidal (U, at 7; Tr. at 64, 78). From 2007 to 2013, during his imprisonment for attempted murder, the respondent received treatment, including 1The Immigration Judge determined that the respondent was incompetent to represent himself and instituted the required safeguards, including re-service of the Notice to Appear and the assignment of counsel (U. at 2, 13; 1'1'. at 29). See Matter of E-S-I-, 26 I&N Dec. 136 (BIA 2013).

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psychiatric therapy as part of an enhanced outpatient treatment program (I.J, at 6; Yr. at 69~ 71; Exh, 8, Tab A), The respondent testified that he needs therapy and medication to help him manage-his mentalhe~th issues (U. at 6; Respondent's Br, at 3A; Tr, at 70~71, 93). Without the medication he will self-destruct (Respondent's Br. at 5; Tr, at 71). The respondent is not sure how he will obtain his medication if he is removed to Mexico,2 He stated that his Spanish is limited, and he does not believe he will be able to find an English-speaking therapist in Mexico. His family in the United States would be unable to pay for the medication he needs because his family is poor (U, at 7, 8; Respondent's Br. at 5; Tr, at

77-78,97). As a teenager the respondent joined the gang. Wh~ his _ . ~nviction, the respondent affiliated himself with the~ang (i,e" _ _ _ _ _ out of fear of being harmed. He was convicted of additional charges while in prison for stabbing a III '~ang member. The respondent explained that he moved up in the_hierarchy and was given 'Gthe keys" to the prison, meaning that he was in charge of giving orders to. fellow prison gang members. After prison guards found weapons in his cell, the respondent decided to leave the prison gang. He "debriefed" the authorities, revealing what he lmew about the prison gang (U. at 6; Respondent's Br. at 3; Tr. at 56-58, 5962). The respondent has many visible gang-related tattoos, inc1uding~attoos that identify him Thus, he fears that he will be""killed by members of the in Mexico. The respondent also fears that the police will assume that he belongs to a drug cartel because of his tattoos. He also fears the drug cartels, the Mexican Mafia, and corrupt police officers (LJ. at 7; Respondent's Br. at 5; Tr, at 72-76-77, 81-82,88,90; Exh. 8, Tab Bat 162-66).

~ gang member. _ g a n g (t, e,

The respondent proffered two expert witnesses, both of whom the Immigration Judge found to be credible (1.J. at 12). Agustin Raymundo De Pavia Frias is an attorney who acts as investigator and researcher for a human rights committee in Mexico (Tr. at 101-03,114-15). He indicated that the respondent would not receive the same level of mental health care that he received as part of the enhanced outpatient treatment program because such treatment does not exist in Mexico (U. at 9; Respondent's Br. at 5; Tr, at 104). Mr, De Pavia explained that there is a shOltage of medication in Mexico, and that the respondent would only have access to medication ifhe were institutionalized (U. at 9; Respondent's Br, at 5; Tr, at 105), Additionally, patients in Mexico are limited to one medication so the respondent would not have access to his multiple prescription medioations (U. at 9; Tr. at 108). Beoause the respondent has not worked in Mexico, he also would not have access to medication benefits through sooial services (U. at 9; Tr.at 105).

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The respondent testified that the prison paid for his medication while he was incarcerated

(Yr. at 97).

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Mr. De Pavia concluded that the respondent would end up in an institution or in prison within a short period of time because he would not have access to his medication and does not have a support system in Mexico. He testified that the respondent would be limited to one medication ifhe is institutionalized, and he would not get any therapy. The respondent's antisocial behavior also would result in his being mistreated in prison (LJ. at 9; Respondent's Br. at 6; Tr. at 107~08; Exh. 10 at 5). Dr. Thomas -Boerman testified as an expert in Central American and Mexican gangs. He testified that the respondent has a high risk of suffering harm in Mexico from immigration and police officials; gangs and drug trafficking organizations; and vigilante groups. Dr. Boerman stated that the respondent faces a high risk that (a) t h e _ w o u l d retaliate against him for leaving the gang; (b) th~ould hann him as a member of a rival gang; (0) drug trafficking organizations will want the respondent to work for them; and (d) police officers will target him because of his gang-related tattoos. He also will be a target because he has been a long term resident of the United States, and has a serious mental illness (LJ. at 9; Respondent's Br. at 8; Tr. at 134,146-48, 152-54, 164~68; Exh. 10 at 18~21). To qualify for deferral of removal under CAT, the respondent must demonstrate that it is more likely than not that he would be tortured in his country of removal. 8 C.F.R. § 1208. 16(c)(2). Pursuant to the regulations, all evidence relevant to the possibility of future torture shall be considered, including evidence of past torture inflicted upon the applicant; evidence that the applicant could relocate to a part of the country of removal where he 01' she is not likely to be tortured; evidence of gross, flagrant, 01' mass violations of human rights within the country of removal, where applicable; and other relevant information regarding conditions in the country or removal. 8 C.F.R. § 1208.16(c)(3)(iHiv). The United States Court of Appeals for the Ninth Circuit, under whose jurisdiction this case arises, has held that the likelihood of torture is a question of fact that we review for clear errol'. See Matter of W-G-R-, 26 I&N Dec. 208, 224 (BIA 2014) (citing Vitug v. Holder, supra; Ridore v. Holder, supra). The Immigration Judge determined that the respondent did not establish a clear probability of torture based on his mental illness, or because of his gang affiliation and gang-related tattoos (U. at 14-17). Regarding the respondenfs mental illness~based claim, the Immigration Judge acknowledged the awful conditions in Mexican mental health institutions (U. at 15). Relying on Villegas v. Holder, 523 FJd 984 (9th Cir. 2008), however, the Immigration Judge concluded that there was insufficient evidence that the Mexican government intentionally created those awful conditions in order to torture individuals with mental illness (U. at 15-16). Thus, any harm the respondent might suffer because of substandard conditions in a Mexican mental institution would not be intentionally inflicted by the Mexican government (U. at 15). Further, the Immigration Judge, relying on a report by Disability Rights International ("DRI"), found that the "primary reason for institutionalization is Mexico '8 lack of community-based services to provide the support necessary for individuals with mental disabilities to live in the community" (U. at 16; Exh. 8, Tab D at 279). The Immigration Judge also was persuaded that the respondent would not more likely than not be tortured based on his mental illness because of evidence that "the Mexican government gave human rights

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organizations free access to its mental institutions, and is taking steps to improve conditions" (U. at 16). See also Vtllegas v. Holder, supra, at 989. The respondent argues that the Immigration Judge's findings regarding the government's intent behind the treatment of mentally ill patients are clearly erroneous (Respondent's Br. at 12). The respondent relies on the fact that 10 years after the DR!' s initial report there was no effort by the Mexican government to develop community-based services that could decrease the need for institutionalization (Respondent's B1'. at 12; Tr. at 109-10). Additionally, the respondent cites the continued widespread use of long-term physical restl'aints in Mexico's mental health institutions, which the respondent argues is evidence of the government's specific intent to torture (Respondent's Br. at 13-14; Tr. at 110, 122; Exh. 8 at 304,330-33). We agree with the respondent that the Immigration Judge's analysis overlooked the discussion in the DRI report regarding the use of long··term physical l'estraints, and how the physical pain caused by such use may constitute tortUl'e (Respondent's B1', at 13), The Immigl'ation Judge also did not consider the report's statement, "The placement of a person in long-term restraints over a life-time can meet the intent i'equirement [of the CAT] because staff lmowingly places a person in this condition" (Respondent's Br. at 14; Exh. 8 at 332), We ac1mowledge that the Ninth Circuit has concluded that the conditions "in the Mexican mental health institutions exist not out of a deliberate intent to inflict harm, but merely because of officials' historical gross negligence and misunderstanding of the nature of psychiatric illness." Villegas v. Holder, supra, at 989. However, Villegas was rendered before the 2010 DRI report, Thus, based on the record before us, we conclude that a l'emand is warranted for the Immigration Judge to consider the overlooked aspects of the DRI report regarding the CAT's intent requirement and the use of long-term physical restraints in mental health institutions as torturous conduct. Further, as the respondent points out on appeal, the Immigration Judge did not consider the likelihood that the respondent would end up in a mental health institution (Respondent's Br, at 15). Although the Attorney General has stated that a string of hypothetical suppositions cannot support a claim of p1'Otection under the CAT, in this case there was credible testimony by an expert witness that the respondent could quickly be confined to an institution because of the lack of access to his medication. See Matter ofJ-F-F-, 23 I&N Dec. 912 (A.G. 2006); see also Matter ofM-S-A-, 23 I&N Dec. 474, 479·80 (BIA 2002). ~g the respondent's fear that he will be tortured because of his affiliation with the

_ a s indicated by his gang-related tattoos, the Immigration Judge acknowledged that the Mexican government struggles with gang violence and public corruption (U, at 16-17), She concluded, however, that because the Mexican government is taking steps to fight gang violence and publio corruption, the respondent could not establish that the Mexican government would acquiesce in torture either by gang members (be it his own gang or a rival gang), the drug cartels, or the police (U. at 17). "Acquiescence of a public official requires that the public official, prior to the activity constituting torture, have awareness of such activity and thereafter breach his or her legal responsibility to intervene to prevent such activity." 8 C,F,R. § 208,18(a)(7), With respect to

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torture by a private party, the Ninth Circuit has explained that "[a]lthough the public official must have 'awareness' of the torturous activity, he need not have actual lmowledge of the specific incident of torture." Madrigal v, Holder, 716 FJd 499, 509 (9th Cir, 2013) (citing Li Chen Zheng v, Ashcroft, 332 F.3d 1186, 1194-96 (9th Cir, 2003». "Acquiescence also does .not require that the public official approve of the torture, even implicitly." Id. "It is sufficient that the public official be aware that torture of the sort feared by the applicant occurs and remain willfully blind to it." Id. Additionally, the Ninth Circuit has stated that it is sufficient to show that a state 01: local publio official would aoquiesoe in any torture by a private party, even if the federal government would not so acquiesce (Respondent's Br. at 20, 27). See Madrigal v, Holder, supra, at 510. The Ninth Circuit has instructed that the Board cannot consider only the Mexican government's willing efforts to combat violence; we also have to consider whether those efforts are effective. See id. at 509. This is because the ability of the Mexican government to stop the violenoe is affected by the degree of corruption that exists in Mexico's government. See id, Thus, evidence that public corruption in Mexico remains a problem, especially at the state and local level, may be sufficient to establish that a public official would acquiesce in the respondent's torture by private parties. See id. We conclude that a remand is warranted because the Immigration Judge considered only the efforts of the Mexican federal government to combat gang violence (Respondent's Br, at 25~27). She did not consider whether those efforts have been effective, including whether public corruption at the state and/or local level precluded those efforts from being effective, In this regard we note that the Department of State report for 2012 contained in the record indicates that the Mexican government did not enforce its anti~col1'uption laws effectively, and officials frequently engaged in corrupt practices with impunity (Exh. 8, Tab E at 530), Thus, the Immigration Judge did not fully consider whether a public official would acquiesce in the torture of the respondent based on his affiliation with the as indicated by his gang~related tattoos) by the same gang or a rival gang, or by the drug cartels (Respondent's Br. at 20~21, 27, 28-31), The Immigration Judge also did not sufficiently consider the respondent's claim that he would more likely than not be tortured by the police or other Mexican authorities either because of his mental illness or because of his gang affiliation (Respondent's Br. at 17, 19, 28~31). Rather, the Immigration Judge considered torture by Mexican authorities only in the context of the issue of acquiescence, Mr. De Pavia and Dr. Boerman testified that without access to proper medication, the respondent's mental illness will result in his quickly coming to the attention of law enforcement officials (Respondent's Br. at 17, 29~30; Tr. at 107~08, 167; Exh. 10 at 5, 27). Mr. De Pavia predicted that law enforcement officials will view the respondent as a criminal, even if he did not commit a crime, because of his tattoos (Respondent's Br. at 29~30; Tr. at 107-08; Exh. 10 at 4~5). I-Ience, the respondent argues that he will likely be detained within the Mexican criminal justice system, which is not equipped to handle an individual with his mental illness and may result in his being subjected to abuse amounting to torture as a means of controlling his behavior (Respondent's Br. at 17, 30~31; Exh, 10 at 5, 27). On remand, the Immig1'ation Judge also shall make necessary findings of fact pertaining to this aspect of the respondent's CAT claim.

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For these reasons we reverse the Immigration Judge's determination that the respondent did not establish that he more likely than not would be tortured ifreturned to Mexico. See 8 C.F.R. § 1003.1 (d)(3)(i). On remand, the parties shall have the opportunity to present further evidence regarding all aspects of the respondent's application for defen'a! of removal under the CAT. Accordingly, the following orders will be entered. ORDER: The appeal is sustained. FURTHER ORDER: The record is remanded for further proceedings consistent with this opinion and for the entry of a new decision,

FOR THE BOARD

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