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U.S.

Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals


Office ofthe Clerk

5107 Leesburg Pike, Suite 2000


Falls Church, Virginia 22041

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Spector, Charles OHS/ICE Office of Chief Counsel - EPD
Carlos Spector 8915 Montana Avenue, Suite 0
1430 E. Yandell El Paso, TX 79936
El Paso, TX 79902

Name: C -M ,J M A -706

Date of this notice: 7/21/2017

Enclosed is a copy of the Board's decision and order in the above-referenced case.

Sincerely,

Cynthia L. Crosby
Deputy Chief Clerk

Enclosure

Panel Members:
Greer, Anne J.

Userteam: Docket

For more unpublished BIA decisions, visit


www.irac.net/unpublished/index/

Cite as: J-M-C-M-, AXXX XXX 706 (BIA July 21, 2017)
U.S. Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals


Office ofthe Clerk

5107 Leesburg Pike, Suite 2000


Falls Church. Vtrgm1a 22041

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CORTEZ-MATA, JUAN MANUEL OHS/ICE Office of Chief Counsel - EPD
A -706 8915 Montana Avenue, Suite 0
C/O EL PASO PROCESSING CENTER El Paso, TX 79936
8915 MONTANA AVE
EL PASO, TX 79925

Name: C -M , J M A -706

Date of this notice: 7/21/2017

Enclosed is a copy of the Board's decision in the above-referenced case. This copy is being
provided to you as a courtesy. Your attorney or representative has been served with this
decision pursuant to 8 C.F.R. 1292.S(a). If the attached decision orders that you be
removed from the United States or affirms an Immigration Judge's decision ordering that you
be removed, any petition for review of the attached decision must be filed with and received
by the appropriate court of appeals within 30 days of the date of the decision.

1.JJur"o
. !
/

Cynthia L. Crosby
Deputy Chief Clerk

Enclosure

Panel Members:
Greer, Anne J.

Userteam:

Cite as: J-M-C-M-, AXXX XXX 706 (BIA July 21, 2017)
, U.S. D,epartent of Justice Decision of the Board of Immigration Appeals
Executive Office for Immigration Review

Falls Church, Virginia 22041

File: 706-El Paso, TX Date:


JUL 2 1 2017
In re: J M C -M

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IN REMOVAL PROCEEDINGS

APPEAL

ON BEHALF OF RESPONDENT: Charles Spector, Esquire

ON BEHALF OF OHS: Adrian Paredes V.


Assistant Chief Counsel

APPLICATION: Termination; Convention Against Torture

The respondent, a native and citizen of Mexico, appeals from the Immigration Judge's
February 21, 2017, 1 decision ordering his removal from the United States. On appeal, the
respondent argues that the Immigration Judge erred in sustaining the charge of removability under
section 237(a)(2)(A)(iii) of the Immigration and Nationality Act, 8 U.S.C. 1227(a)(2)(A)(iii),
and in denying his application for protection under the Convention Against Torture, 8 C.F.R.
1208.16-1208.18. The Department of Homeland Security opposes the appeal. The record will
be remanded.

We review findings of fact determined by an Immigration Judge, including credibility findings,


under a "clearly erroneous" standard. 8 C.F.R. 1003.l(d)(3)(i). We review questions of law,
discretion, and judgment, and all other issues in appeals from decisions of Immigration Judges
de novo. 8 C.F.R. 1003.l(d)(3)(ii).

The following facts are not in dispute. The respondent is a 43-year-old native and citizen of
Mexico (IJ at 5, Feb. 21, 2017).2 The respondent has a 2014 conviction for criminal sexual contact
of a minor in the third degree in violation of section 30-9-13(C)(1) of the New Mexico Statutes
Annotated and a 2003 conviction for indecency with a child in violation section 21.ll(a)(l) of the
Texas Penal Code (Exhs. 1, IA; see Respondent's Br. at 5). The Immigration Judge concluded
that the respondent's 2003 Texas conviction constitutes a generic "sexual abuse of a minor"
offense within the meaning of section 101(a)(43)(A) of the Act, 8 U.S.C. 1101(a)(43)(A),
sustained the charge of removability under section 237(a)(2)(A)(iii) of the Act, and denied the
respondent's motion to terminate (IJ at 2-4, Oct. 26, 2016). The Immigration Judge declined to

1 This decision contains a signature date of February 15, 2017, but it was not mailed to the parties
until February 21, 2017.

2 The respondent, who was represented before the Immigration Court and is represented on appeal,
does not raise any issues with respect to competency or safeguards (see IJ at 5 n.7, Feb. 21, 2017;
IJ at 2-3, May 29, 2016).

Cite as: J-M-C-M-, AXXX XXX 706 (BIA July 21, 2017)
I A 706

address whether the respondent's 2014 New Mexico conviction may be classified as sexual abuse
of a minor or any of the remaining charges of removability (Id. at
4).

Subsequent to the Immigration Judge's decision in this matter, the United States Supreme
Court decided Esquivel-Quintana v. Sessions, 137 S. Ct. 1562 (2017). In that case, the Court held
_that "to qualify as sexual abuse of a minor . .. [where lack of consent is] based solely on the age

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of the participants, the victim must be younger than 16." Esquivel-Quintana v. Sessions, 137 S. Ct.
at 1570. The holding in Esquivel-Quintana v. Sessions effectively abrogates the approach
previously applicable in this circuit, that sexual abuse of a minor refers to offenses committed
against a person under the age of 18. See Contreras v. Holder, 754 F.3d 286, 294 (5th Cir. 2014).3
The Immigration Judge relied on this prior approach in concluding that the respondent's Texas
conviction meets the requirements of the generic "sexual abuse of a minor" offense (U at 3).
Cf. Tex. Penal Code Ann. 21.1l(a)(l) (2002) (making it unlawful to engage in certain sexual
acts with a child "younger than 17 years").

In light of the intervening decision in Esquivel-Quintana v. Sessions, and in the absence of


relevant fact-finding and analysis with respect to the remaining issues of removability, the record
will be remanded for further proceedings. See Matter ofS-H-, 23 l&N Dec. 462, 465 (BIA 2002)
("If incomplete findings of fact are entered and the Immigration Judge's decision ultimately cannot
be affirmed on the basis that he or she decided the case, a remand of the case for further fact-finding
may be unavoidable."). The parties will be permitted to submit additional argument and evidence
on remand.

Given our disposition, we need not consider the respondent's remaining contentions on appeal.
See INS v. Bagamasbad, 429 U.S. 24, 25-26 (1976) (stating that, as a general rule, courts and
agencies are not required to make findings on issues the decision of which is unnecessary to the
result they reach). Accordingly, the following order will be entered.

ORDER: The record is remanded to the Immigration Court for further proceedings consistent
with the foregoing opinion and entry of a new decision.

3 We are not persuaded by the respondent's contention that Mathis v. United States, 136 S. Ct.
2243 (2016), which discussed when it is permissible to proceed beyond the categorical approach,
abrogates the remaining aspects of the Fifth Circuit's definition of the phrase "sexual abuse of a
minor." See, e.g., United States v. Solano-Hernandez, 847 F.3d 170, 175 (5th Cir. 2017) (applying
the definition from Contreras v. Holder post-Mathis).

Cite as: J-M-C-M-, AXXX XXX 706 (BIA July 21, 2017)
(

UNITED STATES DEPARTMENT OF JUSTICE


EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
Immigration Court
El Paso, Texas

A 706

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In the Matter of In Removal Proceedings

J M C -M
Respondent

CHARGE(S): 237(a)(2)(A)(iii), Aggravated Felony/Sexual Abuse of Child


LODGED: 237(a)(2)(A)(ii), Two Crimes Involving Moral Turpitude
237(a)(2)(E)(i), Crime of Child Abuse

APPLICATION($): 8 CFR part 1208.16(c), Convention Against Torture

FOR RESPONDENT: Carlos Spector, Esq.


FOR OHS: Adrian Parades, Esq.

DECISION AND ORDER OF THE IMMIGRATION JUDGE:

1. Summary

On August 21, 2009, the Department of Homeland Security (OHS) issued a Notice
to Appear charging the respondent with being removable for an conviction defined as an
aggravated felony under section 101(a)(43)(A), relating to sexual abuse of a minor. The
OHS subsequently lodged additional charges of removal on September 27, 2016 under
section 237(a)(2)(A)(ii) relating to two or more crimes involving moral turpitude, and
section 237(a)(2)(E)(i) relating to a crime of child abuse.

During the course of a master calendar hearing on April 21, 2016, respondent,
through counsel, admitted the factual allegations contained in the Notice to Appear and
conceded the removal charge under section 237(a)(2)(A)(iii) relating to sexual abuse of
a child/aggravated felony.1 The court sustained the charge based upon those admissions
and concessions. As to the lodged charges respondent, through counsel, denied the new
lodged charges but admitted to the additional factual allegation contained in the lodged
charging document (form 1-261). The court later found respondent deportable as charged
in the Notice to Appear, but declines to address respondent's other charges of removal as
they are not necessary to a resolution of this case.

Respondent subsequently submitted a motion to terminate removal proceedings along with "new"
written pleadings now denying this removal charge as well as the lodged charges filed by the OHS. The
court denied respondent's motion to terminate issuing a formal written decision on October 26, 2016 on the
matter of the respondent's continued removability in light of recent Supreme Court case law. That written
decision discussing respondent's deportability for sexual abuse of a child In incorporated herein as though full
set forth.
1
(

In lieu of removal respondent is applying for protection under the Convention


Against Torture (CAT).2 A final hearing on the merits was held on February 14, 2017, in
which documents and testimony was taken. The parties declined to make written closing
statements. This decision follows

2. Credibility

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Respondent's application for withholding of removal was filed on April 13, 2016.
Therefore, the provisions of the REAL ID Act of 2005 apply. Matter of S-B-, 24 I. & N.
Dec. (BIA 2006). Under this amendment sec. 241(b)(3)(C), referencing section
208(b)(1)(B)(iii) provides:

Considering the totality of the circumstances, and all relevant factors, a trier of
fact may base a credibility determination on the demeanor, candor, or
responsiveness of the applicant or witness, the inherent plausibility of the
applicant's or witness's account, the consistency between the applicant's or
witness's written and oral statements (whenever made and whether or not under
oath, and considering the circumstances under which the statements were made),
the intemal consistency of each such statement, the consistency of such statements
with other evidence of record (including the reports of the Department of State on
country conditions), and any inaccuracies or falsehoods in such statements, without
regard to whether an inconsistency, inaccuracy, or falsehood goes to the heart of
the applicant's claim, or any other relevant factor. There is no presumption of
credibility, however, if no adverse er.edibility detennination is explicitly made, the
applicant or witness shall have a rebuttable presumption of credibility on appeal.

3. Findings of the Court Regarding Credibility

Before detennining whether the respondent meets the statutory criteria for the
requested relief, the Court will address the credibility of the respondent. Chun v. INS, 40
F.3d 76, 79 (5th Cir. 1994). Respondent must generally provide corroborative evidence
unless the evidence is not reasonably available. Rui Yang v. Holder, 664 F.3d 580, 586
(Slh Cir. 2011), and the court provides advance notice of this requirement in writing during
the court of the master calendar hearings. 3

Respondent submitted testimony from both parents, with the predominate testimony
coming from his mother, Luz Elena Cortez. The court carefully observed both witnesses
testify and observed no obvious physical manifestations of deceit or untruthfulness.
However, much of the respondent's mother's testimony was speculative, opinion (without
expert foundation), and based upon things she has heard about on television, radio, and
among strangers talking "on the streer and not based upon her own actual research or
knowledge.

As such, while the court finds that each witness believes that what they testified
about was truthful, respondent failed to support his witness testimony with other

2 During the merits hearing respondent's attorney specifically verified that respondent was only seeking
protection under the CAT.
3 See the court's reset notice, dated January 13, 2016, and personally served upon respondent's
attorney, which has attached the court pre-hearing order on the preparation of the respondent's asylum/CAT
application.
2
corroborative evidence, particularly in regard to the probability of involuntary commitment to
a mental health institution or criminal justice facility if deported to Mexico.

4. Withholding of Removal under the


Convention Against Torture

For an act to constitute torture it must satisfy each of the five elements identified in
8 C.F.R. part 208.18(a): (1) the act must cause severe physical or mental pain or

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suffering; (2) the act must be intentionally inflicted; (3) the act must be inflicted for a
proscribed purpose; (4) the act must be inflicted by or at the instigation of or with the
consent or acquiescence of a public official who has custody of physical control of the
victim; and (5) the act cannot arise from lawful sanctions. Matter of J-E-, 23 I. & N.
Dec. 291 (BIA 2002).

Respondent must establish that it is more likely than not that he would be tortured
in the proposed country of removal. All evidence relevant to the possibility of future torture
shall be considered, including, but not limited to; (i) evidence of past torture inflicted upon
the respondent; (ii) evidence that the respondent could re-locate to another part of the
country of removal where he is not likely to be tortured;4 (iii) evidence of gross, flagrant
or mass violations of human rights within the country of removal; and (iv) other relevant
information regarding conditions in the country of removal. 8 C.F.R. part 1208.16(c).

Torture must be inflicted by a person in an official capacity ,under color of law as


that term is defined by federal law. Matter of Y-L, A-G-, and R-S-R, 23 I. & N. Dec.
270 (A.G. March 5, 2002). See also, Garcia v. Holder, 756 F.3d 885 (5111 Cir.
2014)(pursuant to the "color of law" standard for relief under CAT, government
acquiescence need not necessarily be an officially sanctioned state action; instead, an act
is under "color of law" when it constitutes a misuse of power, possessed by virtue of state
law and made possible only because the wrongdoer is clothed with the authority of state
law).

A state actor acquiesces in torture (by a non-state actor) if the public official, prior
to the activity constituting torture, has awareness of such activity and thereafter breaches
his or her legal responsibility to intervene to prevent such activity. 8 C.F.R. part
1208(a)(7); Garcia v. Holder, supra. ("acquiescence" to torture from government officials
could be found where the actors were "receiving information about [the respondent] from
other public officials, who obtained that information in their official capacities.").

Protection does not extend to persons who fear entities that a government is unable
to control. Matter of S-V-, 22 I. & N. Dec. 1306 (BIA 2000). However, acquiescence is
satisfied by a government's "willful blindness" of torturous activity. Hakim v. Holder, 628
F.3d 151, 155-57 (5th Cir. 2010).

The willful blindness standard was not specifically defined in Hakim, supra, but has
been defined by the United States Supreme Court in Global-Tech Appliances, Inc. v. SEB
S.A., 131 S.Ct. 2060, 179 L.Ed.2d 1167 (2011). In Global-Tech, the Supreme Court
considered willful blindness in the civil context, stating that willful blindness requires proof
that:

4 Unlike other provisions of the withholding regulations, there are no burden shifting provisions
regarding who must show the possibility and reasonableness Of internal relocation issues the burden is
.

ALWAYS on the respondent. 8 CFR part 1208.16(c)(2) & (3).


3
(

(1) the defendant subjectively believe[d] that there [was] a high probability that a
fact exists, and
(2) the defendant [took] deliberate actions to avoid learning of that fact. Id. at
2070.

The Court continued, stating that willful blindness "surpasses recklessness and

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negligence," and that "a willfully blind defendant is one who takes deliberate actions to
avoid confirming a high probability of wrongdoing and who can almost be said to have
actually known the critical facts." Id. at pg. 2070-71. In many ways, this standard is
similar to the deliberate indifference standard used for many civil rights lawsuits under the
Rehabilitation Act, title IX of the Civil Rights Act of 1964, and some 8111 Amendment
litigation, but is actually higher. Id. at pg. 2068-72 (deliberate indifference to a known
risk ...does not satisfy the knowledge required ...) .
Under the deliberate indifference standard, the burden of proof is exceedingly high
as well. Domino v. Tex. De t of Crim. Justice, 239 F.3d 752, 756 (5111 Cir. 2001 ).
The "failure to alleviate a significant risk that the official] should have perceived, but did
nor is insufficient to show deliberate indifference. Farmer v. Brennan, 511 U.S. 825, 838
(1994). It generally requires that a plaintiff demonstrate "at least a pattern of similar
violations.u Burge v. St. Tammany Parish, 336 F.3d 363, 370 (5111 Cir. 2003).

Thus, under Supreme Court precedent, respondent's burden is even higher to show
willful blindness, and must at least establish the deliberate indifference standard, plus show
additional knowledge or reason to know facts or circumstances before acquiescence may
be found on the part of governmental actors.

5. Evidence Considered

I. Documentary Evidence

The court carefully considered all documents submitted,5 and they are as follows:

Exhibit 1, the Notice to Appear


Exhibit 1-A, form 1-261 lodged charging document
Exhibit 2, OHS exhibit, Judgment on Plea of Guilty, 243nt District Court of Texas,
December 8, 2003, relating to respondent's conviction for Indecency with a Child
by Sexual Contact, in violation of Texas Penal Code, section 21.11(a)(1).
Exhibit 3-A, form 1-589, respondent's 1st asylum/CAT application (ABANDONED)
Exhibit 3-B, form 1-589, respondent's 2nc1 asylum/CAT application (ABANDONED)
Exhibit 3-C, respondent's submission of witness list and list of exhibits tabs A-E
(ABANDONED)
Exhibit 3-0, is a group exhibit from respondent which includes another 1-589 (later
superseded), along with multiple materials regarding the current status of mental
health treatment and conditions within mental health facilities in Mexico
Exhibit 3-E, another 1-589 submitted by respondent on April 21, 2016 (later
superseded)
Exhibit 3-F, respondent's "final" 1-589 application

5 There are some exhibits submitted by the respondent which were later withdrawn. Those are
identified above in the documents list.
4
(_

Exhibit 3-G, respondent's exhibits relating to his current medication history as well
as descriptions of these medications uses, contraindications, and side effects
Exhibit 4-A, a OHS group exhibit regarding country conditions in Mexico relating

mostly to the drug trade6


Exhibit 4-B, a OHS group exhibit with specific information regarding respondent's
criminal history, and copies of current information relating to mental health issues in

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Mexico
Exhibit 4-C, a WHO article relating to Mental Health issues in the Americas, dated
December 2015

II. Testimonial Evidence

The respondent did not testify in his behalf. This was safeguard provided by the
court due to respondent's cognitive mental disability.7 Instead, testimony was taken from
respondent's parents and care-givers, which were questioned by the court and cross
examined by the OHS. The court carefully considered this testimony and gives it full credit
with regard to the witnesses actual experiences and knowledge. As to the speculative
nature of some of Mrs. Cortez' testimony, due to the absence of corroborative evidence in
this record, the court gives the testimony in these areas little weight.

6. Relevant Findings of Fact

The Court's findings of relevant facts are based upon the testimony the
respondent's witnesses, and on the documentary evidence of record.

In a nut-shell, respondent is a 41 year old, native and citizen of Mexico. When he


was about 3 years old, respondent's parents abandoned him in the El Paso area.
Through what appears to have been an informal process respondent's current adoptive
parents obtained custody of the respondent, ultimately adopting him as their own child.

Since an ear1y age respondent's parents observed respondent being "differenr in


that he had difficultly learning, had significant "mood-swings and anger management

6 Other than the Department of State country condition report and basic information relating to
Mexico's recognition of the Convention Against Torture, the court finds nothing in this extremely voluminous
exhibit from the OHS that applies to the respondent's fact pattem. Respondent is not involved in the drug
trade; is not a government witness seeking protection; nor is he a member of the LGBT community. As
such, most of these materials have absolutely nothing to do with respondent and his fears of returning to
Mexico.
7 In a prior hearing before the court, testimony was taken from respondent regarding his ability to
assist his attomey in preparing his defensive application for relief. The court found that while respondent
dearly suffers from a cognitive disability that makes respondent's own testimony suspect due to
aggrandizement or exaggeration, respondent's application is not really dependent upon the respondent's own
experiences since he has not been to Mexico since he was an infant, has no personal knowledge of current
country conditions, and specifically has no personal knowledge of current mental health conditions in Mexico.
As respondent's application is dependent upon "outside information relating to these "conditions in Mexico,
the respondent's ability to testify in his own behalf is not necessary.

With this safeguard, the court felt that respondent's attorney could identify the issues and present
evidence on the respondent's behalf. However, had respondent been forced to represent himself, the court
may well have made a different decision on whether to move forward with the respondent's case.
5
(
issues. Based upon the court's own obseivations, respondent possesses a significant
cognitive (learning) disability. In other words, he is physically an adult, with all the
physiological attributes of a grown man, but with the mind of a 5 year old child. This
combination of "body of man/mind of child" has resulted in respondent being convicted
twice for offenses relating to the sexual abuse of a child. Respondent currently takes
medication to control his urges, and calm his behavior, and when properly medicated AND
supeivised (by other adults) respondent can behave himself.

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The crux of respondenf s fears about being deported to Mexico are that he has no
immediate family in Mexico who can provide him shelter and supeivise him like his parents
can in the United States. Respondent fears that if deported to Mexico he would be
homeless on the streets. He opines that he would then be more subject to mistreatment
by others because of his cognitive disability OR he would come to the attention of law
enforcement agencies in Mexico, which might result in his involuntary detention in a jail or
mental health facility where he might be mistreated by others. Respondent currently
receives medication which is paid for by the U.S. government either under Medicaid
program or due to his (mental) disability status. If respondent is deported he will lose this
government benefit. Respondent's parents are elderly and retired, live on their Social
Security "pensions," and do not have the financial ability to provide for themselves in the
United States AND provide respondent with housing, medication, and adult supervision in
Mexico.a

Respondent has provided objective evidence that conditions within both criminal
justice detention centers AND public mental health facilities in Mexico are seriously sub
standard with regards to those in the United States. The objective evidence in the file
also shows that while Mexico is attempting to correct some of these deficiencies,
particularly with regard to its mental health facilities, it does not have, or fails to provide
the financial resources to make significant changes.

7. Conclusions of Law

Respondent is seeking protection from removal under the Convention Against


'Torture (CAT). As articulated above, in order to receive such protection respondent must
establish that it is more likely than not that he would be tortured as that term is defined in
the CAT, andthere is sufficient state action with regards to the infliction of the torture.
Garcia v. Holder, 756 F.3d 885, 891 (5th Cir. 2014) (citing Tmara-Gomez v.
Gonzales, 447 F.3d 343, 350-51 (5th Cir. 2006)).

For an act to constitute torture it must satisfy each of the five elements identified in
8 C.F.R. part 208.18(a): (1) the act must cause severe physical or mental pain or
suffering; (2) the act must be intentionally inflicted; (3) the act must be inflicted for a
proscribed purpose; (4) the act must be inflicted by or at the instigation of or with the
consent or acquiescence of a public official who has custody of physical control of the
victim; and (5) the act cannot arise from lawful sanctions. Matter of J-E-, 23 I. & N.
Dec. 291 (BIA 2002).

8 There was no testimony, however, that respondent's parents would be unwilling or unable to sell
their home in the United States, buy a home in Mexico, and provide for respondent while living In Mexico.
Both respondent's parents are United States citizens, and as such, need not worry about losing their Social
Security pensions as a result of relocating to Mexico for retirement."
6
L

The court finds that on this record respondent has not established that he would be
tortured upon return to Mexico. As noted above, torture is defined as an intentional act of
physical or mental pain and suffered specifically designed to obtain a confession or
information; punish him; intimidate or coerce him; or for discrimination of any kind. 8 CFR
part 1208.18(a)(1). In respondent's case, testimony from his mother (which is primarily
an opinion based upon source materials which are clearly suspect) if deported, respondent
would be:

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homeless upon return to Mexico and without medication and adult supervision
in-tum, he would be more at risk from elements in Mexican society who might take
advantage of him (to get him to commit crimes), or alternatively might take
advantage of him by mistreating him (physical threats and/or verbal taunts).
might be arrested by the police and involuntarily detained in a jail or prison where
he would be mistreated by the other inmates and/or guards
might be involuntarily committed to a mental health facility where he would be
mistreated by the staff

A. Forced Institutionalization/Conditions

Much of respondent's "evidence" with regards to the feared series of events should
respondent be deported is speculative, and provided by respondent's mother, Luz Elena
Cortez, who has actually no personal experience with this issue herself. Much of Mrs.
Cortez's testimony was based upon what she had heard on the Television (but could not
remember the channel, date of broadcast, or particulars of the broadcast), the radio, or
with strangers that she had conversations with at lines in the grocery stores and other
markets (the value and strength of which cannot be ascertained by the court).

Other evidence submitted by respondent include various news and non


governmental organization (NGO) reports, including one from Disability Rights International
(via a New York Times article), and the Department of State's country report for Mexico.
In these reports, it is apparent that Mexico's mental health facilities are clearly substandard
to those in the United States.

The U.S. Department of State's 2015 Country Report on Human Rights Practices
cites a "lack of adequate medical treatment, qualified staff, and basic medications, as well
as unhygienic and degrading conditions" in a Mexico City government institution for
persons with disabilities. The report by ORI likewise states that "[f]ilthy, run-down living
areas, lack of medical care and rehabilitation, and a failure to provide oversight renders
placement in some institutions dangerous and even life-threatening." According to ORI:

Many of Mexico's institutions are filthy, leaving people to walk around in ragged
clothing on barren floors covered with urine and feces. . . . Even in facilities that
are kept clean, however, there is a total lack of privacy or any ability to make the
most fundamental choices about life. People eat, go to sleep, or receive
medication at the convenience of the institution.

The State Department found that patients did not receive any rehabilitation with the
purpose of reintegrating them into society, and concluded that the shelters violated the
right to health; the right not to be subjected to cruel, inhuman, and degrading treatment;
and the right to live in the community. The ORI, however, reports that "Mexico's strategic
plan for mental health states that everyone in need of mental health treatment should
receive such treatment." The ORI report also states that "[t]he government of Mexico is
7
the world's leader in bringing about international recognition of the rights of people with
disabilities," and, furthermore, that Mexico introduced a resolution leading to the U.N.
Convention on the Rights of Persons with Disabilities, and was one of the first countries to
ratify the Convention. Mexico's Chief of Psychiatric Services for the Secretariat of Health
explained that the problems in public institutions for disabled, persons are the result of
limited and misdirected funds.

The Board has specifically held that poor conditions not intentionally created to

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inflict torture do not qualify as torture under Article Ill of the Convention. Matter of J-E-,
23 l&N Dec. at 300-301. As explained in Matter of J-E-, in order to constitute torture,
''the act must be specifically intended to inflict severe pain or suffering." Id. (emphasis in
original). Negligent and reckless conduct does not rise to the level of torture described in
Article Ill of the Convention. Id. at 301; see also 8 C.F.R. 1208.18(a)(S) (stating that
an act resulting in unintended severity of pain and suffering is not torture). There is no
evidence that the poor conditions in Mexican institutions are intentionally and deliberately
created by the Mexican government to inflict torture. Rather, the evidence suggests that
the conditions are symptomatic of inadequate and misdirected funding, and that the
Mexican government ultimately supports the promotion of rights for persons with
disabilities. Consequently, the Court finds that the poor conditions in Mexican mental
health institutions do not constitute torture mandating deferral of removal under CAT.

B. Indefinite Detention and Physical Restraint as Torture

According to the ORI, many institutions for disabled persons in Mexico indefinitely
detain residents lacking family support because treatment and rehabilitation programs that
would allow patients to live in the community are generally unavailable to them.
Authorities at one mental institution visited by ORI stated that 80% of the patients at that
particular facility have no family or place to go, are not expected to ever have an improved
mental condition, and are expected to remain in the facility forever. The source also
stated that the other patients may return to the community only if "they have families who
will take them". The ORI report, however, also notes that several institutions have
established dorm-like villas where residents live more autonomously and may receive job
training and perform jobs on and off of the facility grounds.

The ORI report further states that the use of physical restraints in institutions for
disabled persons is widespread, especially for indefinitely-detained patients. Long-term
physical restraint can cause "great suffering," is "extremely dangerous," and is "likely to
cause medical complications that can be life-threatening". According to the ORI report,
institution staff assert that "chronic patients" are put into physical restraints to prevent falls
and to control self-injurious or disruptive behavior, and because the facilities lack adequate
personnel to provide alternative care. Long-term restraints are routinely used on patients
for whom there are no other forms of treatment or rehabilitation.

The Court finds that the respondent has failed to demonstrate that the Mexican
government specifically intends to indefinitely detain persons with disabilities, or cause
severe physical or mental pain through indefinite detention or the use of physical restraints.
See, Matter of J-E-, 23 l&N Dec. at 300. Indeed, ORI reports that the government has
policies against the long-term use of restraints. As with the poor conditions in institutions,
indefinite detention and the use of physical restraints are symptomatic of insufficient
funding and personnel, and do not evince intent on the part of the government to torture
people with disabilities or cause them harm. Therefore, in this case, indefinite detention
and physical restraints do not constitute torture under Article I ll of the Convention.
8

Additionally, the respondent has not demonstrated that he is more likely than not will be
subjected to this treatment as a person for whom no other treatment or rehabilitative
program would be available or effective, since he currently takes medication which controls
his behavior in most respects.

To prove his case, respondent would need to show that it is more likely than not
that he will stop taking his medication and be incarcerated in a mental institution against

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his will (which, as discussed above, he has not shown). See, Matter of J-F-F-, 23 l&N
Dec. at 917-18 (holding that eligibility for CAT relief cannot be established by stringing
together a series of suppositions to show that torture is more likely than not to occur
unless the evidence shows that each step in the hypothetical chain of events is more likely
than not to happen). Moreover, the record establishes that he is stable when taking
medication. Respondent has additionally not shown a clear refusal from his family to
relocate to Mexico and provide for him there as they have done in the United States
previously.

C. Detention in a Mexican Penal/Criminal Justice Facility

Respondent's final fears are that, because of his mental disability, he might be
"enticed" to join other criminals in committing crimes. This in tum would subject him to
criminal arrest and incarceration. Upon being incarcerated, due to his mental disability, he
would be mistreated by the other inmates and/or the detention center staff.

While the court cannot completely discount respondent's concerns about this
scenario, as noted by the BIA in Matter of J-F-F-, supra, a respondent cannot establish
his eligibility for CAT relief by stringing together a series of suppositions to show that
torture is more likely than not to occur unless the evidence shows that each step in the
hypothetical chain of events is more likely than not to happen. Here, respondent has only
established a subjective possibility regarding any of his fears. The record contains nothing
objective regarding the treatment of mentally disabled individuals in Mexican criminal
justice facilities, and the issue of whether he might be "enticed" to engage in criminal
behavior upon return to Mexico is purely speculative. Consequently, the court finds
respondent has not established an objective basis rising to the level of a clear probability
of torture upon his return to Mexico on this basis.

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8. Other Relief and Orders

The respondent has not identified, and the court is not aware of any other form of
relief from removal within the power of this court to consider.9 Therefore, the court will
enter the following orders:

ORDER: respondent's application for regulatory withholding of removal under the

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Convention Against Torture is DENIED.

FURTHER
ORDER: respondent is ordered removed to Mexico on the charge contained in the
Notice to Appear.

Date: February 15, 2017


William Lee tt
Immigration Judge

9 The court would like to point out that while respondent has no "relier from removal within the power
of this court to consider, respondent might consider requesting the OHS to provide some humanitarian relief
(deferred action, stay of removal, etc.) based upon the respondent's mental capacity/disability issues, and
his close family ties to the United States. While the mental health facilities in Mexico are not "torturous
within the meaning of the law, they are clearly not adequate to treat this respondent's mental health
condition.
10