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Immigrant & Refugee Appellate Center, LLC | www.irac.net U.S. Department of Justice Executive Office for Immigration

U.S. Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals

Office ofthe Clerk

·

Review Board ofImmigration Appeals Office ofthe Clerk · David, Alma Leonie Global Justice Law Group, PLLC

David, Alma Leonie Global Justice Law Group, PLLC 216 First Ave S Suite 420 Seattle, WA 98104

Name: D

216 First Ave S Suite 420 Seattle, WA 98104 Name: D -H , E 5107 Leesburg

-H

216 First Ave S Suite 420 Seattle, WA 98104 Name: D -H , E 5107 Leesburg

, E

First Ave S Suite 420 Seattle, WA 98104 Name: D -H , E 5107 Leesburg Pike,

5107 Leesburg Pike, Suite 2000

Falls Church, Virginia

22041

OHS/ICE Office of Chief Counsel - TAC 1623 East J Street, Ste. 2 Tacoma, WA 98421

A

- TAC 1623 East J Street, Ste. 2 Tacoma, WA 98421 A 523 Date of this

523

- TAC 1623 East J Street, Ste. 2 Tacoma, WA 98421 A 523 Date of this

Date of this notice: 8/29/2017

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

Sincerely,

and order in the abov e-referenced case. Sincerely, Enclosure Panel Members: Greer, Anne J. Kelly, Edward

Enclosure

Panel Members:

Greer, Anne J. Kelly, Edward F. Kendall Clark, Molly

Cynthia L. Crosby Deputy Chief Clerk

Userteam: Docket
Userteam: Docket

For more unpublished BIA decisions, visit www.irac.net/unpublished/index

Cite as: E-D-H-, AXXX XXX 523 (BIA Aug. 29, 2017)

For more unpublished BIA decisions, visit www.irac.net/unpublished/index Cite as: E-D-H-, AXXX XXX 523 (BIA Aug. 29,

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U.S. Department of Justice

Executive Office for Immigration Review

Decision of the Board of Immigration Appeals

Falls Church, Virginia 22041

of Immigration Appeals Falls Church, Virginia 22041 File: 523 - Tacoma, WA D a t e

File:

523 - Tacoma, WA

523 - Tacoma, WA

Date:

In re:

E

E

 

-H

 

AUG

2 9

2017

IN REMOVAL PROCEEDINGS

APPEAL

ON BEHALF OF RESPONDENT:

Alma L. David, Esquire

ON BEHALF OF DHS:

Gwendolyn T.D. Franks Assistant Chief Counsel

APPLICATION:

Asylum; withholding of removal; Convention Against Torture

The respondent appeals from the Immigration Judge's March 13, 2017, decision denying his claims for asylum, withholding of removal, and protection under the Convention Against Torture. Sections 208(b)(l)(A), 241(b)(3)(A) of the Immigration and Nationality Act, 8 U.S.C. §§ 1158(b)(l)(A), 1231(b)(3)(A); 8 C.F.R. §§ 1208.13, 1208.16-.18. The Department of Homeland Security ("DHS") opposes the appeal. We will remand the record for further proceedings and issuance of a new decision.

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).

We previously remanded the record for the Immigration Judge to reassess the findings in her February 2, 2016, decision that the respondent's proposed particular social group, "indigent Mexicans without familial support and with chronic and perceptible mental illness involving psychosis," lacked the requisite particularity to be cognizable under the Act.1 In addition, we remanded for the Immigration Judge to reassess whether the respondent had established a likelihood of being harmed on account of his membership in the proposed particular social group. We found the Immigration Judge's analogy to Mendoza-Alvarez v. Holder, 714 F.3d 1161 (9th Cir. 2013), which held that injustices arising from an inadequate health care system do not rise to the level of persecution, to be misplaced because the respondent fears harm upon return based on severe physical mistreatment or involuntary institutionalization due to his mental illness, not as part of a group of individuals who lack resources to purchase medication.

of individuals who lack resources to purchase medication. 1 We affirmed the Immigration Judge's finding that

1 We affirmed the Immigration Judge's finding that the proposed group of "Mexican men who are presumed to be gang members because of visible gang tattoos" was not cognizable under the Act, and the respondent has not further contested that issue (U at 19, March 13, 2017).

Cite as: E-D-H-, AXXX XXX 523 (BIA Aug. 29, 2017)

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Immigrant & Refugee Appellate Center, LLC | www.irac.net 523 A ft e r accepting new evidence

523

& Refugee Appellate Center, LLC | www.irac.net 523 A ft e r accepting new evidence and

After accepting new evidence and hearing additional testimony on remand, the Immigration Judge issued her decision on March 13, 2017, finding that the respondent's proposed particular social group was sufficiently particular, but that it lacked social distinction, and therefore was not cognizable under the Act (IJ at 21-27, March 13, 2017). The Immigration Judge denied the respondent's claims for asylum and withholding of removal for this reason, and did not address whether the respondent had established a well-founded fear or a likelihood of future persecution on account of his membership in the group (Id. at 27-28). The respondent timely appealed.

We agree with the respondent that, on this record, including the record submitted on remand, the proposed particular social group of "indigent Mexicans without familial support and with chrome and perceptible mental illness involving psychosis" meets the requirements of immutability, particularity, and social distinction to be cogniz.able under the Act. Matter of W- G-R-, 26 I&N Dec. 208, 221(BIA 2014)(to be cogniz.able, a particular social group must be 1) composed of members who share a common immutable characteristic, 2) defined with particularity, and 3) socially distinct within the society in question); accord, Matter ofM-E-V-G-, 26 I&N Dec. 227 (BIA 2014). Chronic psychosis is an immutable characteristic, and when symptoms are manifest, individuals can be identifiable in this category. Thus, in our view, the Immigration Judge erred in denying the respondent's applications for asylum and withholding of removal for lack of a cognizable particular social group. (IJ at 27-28, March 13, 2017). We also find that the respondent has established his membership in this particular social group.

We will remand the record, however, for the Immigration Judge to make findings of fact and legal conclusions regarding whether the respondent has shown that the people who he fears will harm him would be motivated to do so based on his membership in the particular social group. See Matter ofN-M-, 25 l&N Dec. 526, 532 (BIA 2011) (noting the significance of determining whether the alleged persecutor is motivated by the protected trait). We recognize the Immigration Judge's reasoning that the respondent has not demonstrated an inability to obtain medication or outpatient treatment for his diagnosed schizophrenia(IJ at 33, March 13, 2017). While we do not dispute that antipsychotic medication and mental health treatment exist in Mexico, we nonetheless find clear error in the Immigration Judge's predictive findings of fact in this regard. Given the respondent's diagnosis of schizophrenia and his regimen of medications, as well as the lack of available resources upon return, particularly his family and treating doctors, we find it unlikely that the respondent will be in a position to maintain his medication regimen, and likely that he will decompensate and display symptoms of his illness.

The Immigration Judge should consider, however, whether the inability of law enforcement and/or health care professionals in Mexico to appropriately respond to and treat the respondent's schizophrenia is evidence of an intent to persecute or torture him for purposes of establishing his eligibility for asylum and withholding of removal, as well as protection under Article 3 of the Convention Against Torture(IJ at 34, addressing this issue only in the context of the Convention). See Matter ofN-M-, 27 I&N Dec. at 526(persecution requires intent on the part of the persecutor); see also Villegas v. Mukasey, 523 F.3d 984, 988-89(9th Cir. 2008)(to establish a likelihood of torture for purposes of the Convention Against Torture, the applicant must demonstrate that severe pain or suffering was specifically intended).

Accordingly, the following order will be issued.

2

Cite as: E-D-H-, AXXX XXX 523 (BIA Aug. 29, 2017)

Immigrant & Refugee Appellate Center, LLC | www.irac.net

Immigrant & Refugee Appellate Center, LLC | www.irac.net 523 ORDER: The record is remanded for further

523

& Refugee Appellate Center, LLC | www.irac.net 523 ORDER: The record is remanded for further proceedings

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

with the foregoing opinion and for entry of a new decision. 3 Cite as: E-D-H-, AXXX

3

Cite as: E-D-H-, AXXX XXX 523 (BIA Aug. 29, 2017)

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••

& Refugee Appellate Center, LLC | www.irac.net •• UNITED STATES DEPARTMENT OF JUSTICE Executive Office for

UNITED STATES DEPARTMENT OF JUSTICE Executive Office for Immigration Review Tacoma Immigration Court Tacoma, Washington

File No. A

Tacoma Immigration Court Tacoma, Washington File No. A 523 In the Matter of: D H ,

523

In the Matter of: D H , E Respondent
In the Matter of:
D
H , E
Respondent

In Removal Proceedings

Charge(s):

INA Section 237(a)(2)(B)(i) violation of a controlled substance

Application(s):

Asylum, Withholding of Removal, and Convention Against Torture

Withholding of Removal, and Convention Against Torture On Behalf of Respondent Alma David, Esq. Global Justice

On Behalf of Respondent Alma David, Esq. Global Justice Law Group 216 1st Avenue S, Suite 420 Seattle, WA 98104

On Behalf of DHS Anthony Capece Assistant Chief Counsel U.S. Immigration Customs and Enforcement U.S. Department of Homeland Security 1623 East J Street, Suite 2 Tacoma, WA 98421

DECISION OF THE IMMIGRATION JUDGE

I. Factual and Procedural History

On February 16, 2016, the court ordered Respondent removed to Mexico and denied his

applications for asylum, withholding of removal and protection under the Convention Against

Torture. See Decision of the Immigration Judge (Dec. 17, 2015) [hereinafter "U Decision"].

Respondent, through counsel, timely appealed the court's decision to the Board of Immigration

Appeals ("Board"). The case is back before the court on remand from the Board for further

analysis of the respondent's eligibility for asylum and withholding of removal based on his

membership in the particular social group of "indigent Mexican without familial support and

with chronic and perceptible mental illness involving psychosis." Decision of the Board (Aug. 4,

1

support and with chronic and perceptible mental illness involving psychosis." Decision of the Board (Aug. 4,

Immigrant & Refugee Appellate Center, LLC | www.irac.net

Immigrant & Refugee Appellate Center, LLC | www.irac.net 2016) [hereinafter "BIA Decision"]. Specifically, the

2016) [hereinafter "BIA Decision"]. Specifically, the Board instructed the court "to detennine

whether the defining characteristics of [Respondent's] proposed group, including the behavior

manifestations of psychosis, have commonly accepted meaning within the society in question,

such

that

the

characteristics

serve

as

an

adequate

benchmark

for

ascertaining

group

membership." Id. at 3. The Board, however, did not disturb the court's prior decision denying

Respondent's application for asylum and withholding of removal based on his membership in the

particular social group of "Mexican men who are presumed to be gang members because of

visible gang tattoos." Id

at 2. Thus, the court hereby incorporates, in its entirety, its written

decision from February 16, 2016 to the extent that it is not inconsistent with the written decision

herein.

On September 22, 2016, Respondent appeared with counsel to an initial master calendar.

The court reset the hearing to allow Respondent's counsel time to submit additional evidence on

remand. On October 20, 2016, Respondent appeared with counsel at a continued master calendar

hearing.

Again,

counsel

for

Respondent

requested

additional

time

to

submit

evidence,

but

requested the court proceed with scheduling an individual hearing to take additional testimony.

On February 9, 2017, the court heard additional testimony from Dr. WhitneyDuncan.

court heard additional testimony from Dr. WhitneyDuncan. Il. Evidence T h e c o u r

Il.

Evidence

The court has considered all evidence of record whether or not specifically mentioned.

A.

Exhibits

Exhibit I

Notice to Appear

Exhibit 2

Department of Homeland Security's Notice of Franco-Gonzalez Class Membership and Request for Competency Inquiry

Exhibit 3

DHS Evidence

Record ofDeportable/lnadmissible Alien, Form 1-213

and Request for Competency Inquiry Exhibit 3 DHS Evidence • Record ofDeportable/lnadmissible Alien, Form 1-213 2

2

Immigrant & Refugee Appellate Center, LLC | www.irac.net

Immigrant & Refugee Appellate Center, LLC | www.irac.net • Conviction records Exhibit4 Application for Asylum

Conviction records

Exhibit4

Application for Asylum and Withholding of Removal, Form 1-589

Exhibit5

Notice of Consequences of Knowingly Filing a Frivolous Application for Asylum

Exhibit 6

DHS Informative Memorandum to the Court

BBC News, Mexico doubles prison sentences for kidnapping (June3, 2014)

SF Gate, Mexico official: Top Capo nabbed in western Michoacan State (Feb.

27, 2015)

CNN, Reputed boss of Zetas drug cartel captured in Mexico (March5, 2015)

U.S. Department of State Mexico Travel Warnings

CIA World Factbook

Exhibit 7

Respondent's Pre-Hearing Statement

Respondent's Declaration

Report by Jeremy Slack, Ph.D. & Curriculum Vitae

Photos of respondent's tattoos

Excerpts of ICE Health Service Corps medical records

Miguel Pinedo, International Journal of Drug Police, The role of visual

markers in police victimization among structurally vulnerable persons in

Tijuana, Mexico (2014)

Immigration and Refugee Board of Canada, Mexico: Kidnappings for

Ransom, Including the types of kidnapping, protection available to victims,

the effectiveness of anti-kidnapping measures, and complicity of police

officers (July 2009-Aug. 2013)

Immigration and Refugee Board of Canada, Mexico: the presence and activities of the Mara Salvatrucha (MS) and the Mara 18 in Mexico,

specifically in Mexico City, including the measures taken by the government

to fight

the Maras and the protection available to their victims (2004 -Sep.

2009)

Nathan Jones, Woodrow Wilson Center's Mexico Institute, Understanding

and Addressing Youth in 'Gangs' in Mexico (2013)

and Addressing Youth in 'Gangs' in Mexico (2013) • John Stanton, Buzzfeed, The Deported: Life on

John Stanton, Buzzfeed, The Deported: Life on the Wrong Side of the Boarder for Repatriated Mexicans (2013)

Lucio R, Borderland Beat, Oaxaca-Veracruz: 8 bodies found slashed to death in ongoing Ver turf war (2015)

Pedro Matias, Borderland Beat, Six men found executed in Oaxaca (2014)

Reporters Without Borders, Crime reported gunned down outside his home in Oaxaca state (2014)

Justice in Mexico, SJP: Oaxaca is Mexico's most violent Municipality in

.

20I3; Guerrero the most violent state (2014)

in Mexico, SJP: Oaxaca is Mexico's most violent Municipality in . 20I3; Guerrero the most violent

3

Immigrant & Refugee Appellate Center, LLC | www.irac.net

Immigrant & Refugee Appellate Center, LLC | www.irac.net • Borderland Beat, P RI Candidate (2013) wounded

Borderland Beat, PRI Candidate

(2013)

wounded in Mexico attack,

husband dies

AP, Gang's Terror Felt Far from Drug War on U.S. Border (2011)

Disability

Rights

International,

No

Justice:

Torture,

Trafficking,

Segregation in Mexico (2015) (excerpt)

and

Disability Rights International, The Rights of Persons with Mental Disabilities in the New Criminal Justice System (2013)

Mexico's

Disability

Rights

International,

Abandoned

and

Disappeared:

Disability Rights International, Abandoned and Disappeared: Segregation and Abuse ofChildren and Adults with

Segregation and Abuse ofChildren and Adults with Disabilities (20 I 0)

United Nations General Assembly, Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Feb. 1, 2013)

N.Y.

2013)

Times,

Ex-Patients

Police Mexico's Mental Health System

(Oct.

21,

Schizophrenic, In Rural Mexico, Schizophrenics are Locked in Cages (Dec. 13, 2012)

InterPress Service, Appalling Conditions in Mexico 's Mental Health Institutions(Jan. 14, 2011)

"Hell" at a Mexican Institution (Nov. 30.

ABC News, The Abandoned Ones:

2010)

N.Y. Times, Abuses Found at Mexican Institutions for Disabled (Nov.

2010)

30,

Disability Rights International, Human Rights and Mental Health: Mexico

(2000)

N.Y. Times, Global Willowbrook(Jan. 16, 2000)

Ethno Med, No soy loco!ll'm not crazy!: Understanding the Stigma Against Mental lllness in Latinos: a Guide (2009)

CNN, Stigma Haunts Mentally Ill Latinos (Nov. 15, 2010)

_Medical

.Returned

Anthropology_

Quarterly_

Transnational

Disorders:

Migrants at Oaxaca Psychiatric Hospital

K.C. Brouwer et al, Journal of Immigration and Minority Health, Deportation Along the U.S. Mexico Border: Its Relation to Drug Use Patterns and Accessing Care (2009)

Victoria Ojeda et al, Journal of Urban Health, A Qualitative View ofDrug Use Behavior of Mexican Male Injection Drug Users Deported from the United States (2011)

Angela M. Robertson et al, Drug and Alcohol Dependence, Male Injection Drug Users Try New Drugs Following Deportation to Tijuana, Mexico (2012)

Freedom House, Mexico 2015

Amnesty International, Annual Report: Mexico 2014115

Exhibit 8

Respondent's Supplemental Pre-Hearing Statement, including:

Additional declaration by Respondent

4

Immigrant & Refugee Appellate Center, LLC | www.irac.net

Immigrant & Refugee Appellate Center, LLC | www.irac.net • Report by Dr. Robert Kirkland, Ph.D., Exhibit
Immigrant & Refugee Appellate Center, LLC | www.irac.net • Report by Dr. Robert Kirkland, Ph.D., Exhibit

Report by Dr. Robert Kirkland, Ph.D.,

| www.irac.net • Report by Dr. Robert Kirkland, Ph.D., Exhibit 9 Respondent's Response to OHS Position

Exhibit 9

Respondent's Response to OHS Position on Eligibility

Exhibit 10

Amendments to Respondent's Fonn 1-589

Exhibit 11

Letters from Respondent to the court

Exhibit 12

OHS Notice of Evidence

UN Committee on the Rights of Person with Disabilities (CRPD). Concluding observations on the initial report of Mexico. October 27. 2014

UN Committee on the Rights of Person with Disabilities (CRPD). List of issues in relation to the initial report of Mexico -Addendum. July 24, 2014

UN Committee on the Rights of Person with Disabilities (CRPD), List of

 

issues in relation to the initial report of Mexico, April 30,2014

 

UN Committee on the Rights of Person with Disabilities CRPD). Implementation of the Convention on the Rights of Personswith Disabilities, Initial reports submitted by States parties in accordance with article 35 ofthe Convention-Mexico, February 7,2013

Nature, Mexico chalks up success in health-care reforms (Aug. 17, 2012)

UCLA Magazine, Mexico's Experience with Health Care Reform (June

 

2013)

 

The New York Times, Ex-Patients Police Mexico's Mental Health System,

 

(October 21, 2013),

 

Counselling Resource, Institutional Care for Mentally RI in Mexico Brings to Mind the US. Not so Long Ago (Nov. 18, 2013)

World Health Organization, Mental Health Atlas Country Profile

 

2014: Mexico

 

World Health Organization. Mental Health Atlas Country Profile 201 1 :

 

Mexico

Exhibit 13

OHS Brief in Opposition to Asylum and Withholding of Removal

Exhibit 14

Respondent's Motion for 14 Day Continuance

Exhibit 15

Respondent's Motion for Telephonic Appearance by Expert Witness

Exhibit

16

Respondent's Brief on Remand

Exhibit 17

Respondent's Motion for Telephonic Appearance by Qualified Representative

Exhibit 18

Respondent's Evidence on Remand

Declaration of Dr. Whitney Duncan, PhD, with attached curriculum vitae

5

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Immigrant & Refugee Appellate Center, LLC | www.irac.net c Exhibit 19 • Franco Mascayano et al,

c

Exhibit 19

Franco Mascayano et al, Stigma toward mental illness in Latin America and the Caribbean: a systematic review, Revista Brasileira de Psiquiatria (2016)

Rebeca Robles-Garcia et al, Mental illness recognition· and beliefs about adequate treatment of a patient with schizophrenia: Association with gender and perception of aggressiveness-dangerousness in a community sample of Mexico City, Int. J. Soc. Psychiatry (2012)

Mariana Espinola-Nadurille and Guadalupe Delgado, Mental Disability and Discriminatory Practices: Effects of Social Representations of the Mexican Population Int. J. Soc. Psychiatry (2009)

Adriane Hunsberger Gelpi, Priority Setting for HW and Mental Health in Mexico: Historical, Quantitative and Ethical Perspectives (2014)

McClatchy Press, Human rights groups slam Mexico in dispute over UN torture accusation, (2015)

Por Reforma, Violan derechos humanos en psiquiatricos de Salud (April 2016) with certified English translation

ABC News, David Muir Reports: Lawsuit to Be Filed Against Mexico for Human Rights Abuses Against Disabled (May 2016)

Human Rights Watch, Letter to Special Rapporteurs on Mexico General Law on Torture (August 2016)

Disability Rights International and The Colectivo Chuhcan, Mexico's Segregation and Abuse of Children and Adults with Disabilities: Additional Information Submitted to the CRPD Committee (2000)

la Secretaria de

DHS Notice of Evidence on Remand

Dr.

Whitney Duncan, Ph.D., The Culture of Mental Health in a Changing

Oaxaca (2012)

B.

Testimony

1. Testimiitiy ofRespondent

Oaxaca (2012) B. Testimony 1. Testimiitiy ofRespondent The respondent is a twenty-six year-old male who is

The respondent is a twenty-six year-old male who is a native and citizen of Mexico. He

first came to the United States with his family when he was twelve years old. He testified they

had a normal life growing up in Mexico. His father used to travel to the United States to work.

He testified they lived in a poor neighborhood.

He testified that his parents argued at times, but he was young and did not pay close

attention. He testified that his father mistreated him and his family. The mistreatment continued

in the United States. Later, his father asked him to leave the home when he was approximately

6

Immigrant & Refugee Appellate Center, LLC | www.irac.net

Immigrant & Refugee Appellate Center, LLC | www.irac.net s i x t e e n years

sixteen years old. He lived with a friend and worked in a restaurant to pay the rent. His mother

was sick with cancer at the time.

Respondent's last trip to Mexico was in 2006 when his mother passed away. He was in

the city of Juxtlahuaca when a group of people talked to him and asked him where he came from.

They saw his tattoos and asked if he was Sureno, which Respondent

explained is a gang of

people who live in the South Side. He said they tried to jump him. They said they could not be in

that neighborhood. Respondent and his cousin ran away. He testified he got in a fight several

times when he was in Mexico. He has not returned to Mexico since 2006.

He was arrested by the police because his father called the police. He is not sure why. He

was wearing baggy pants. The police told him that his father said he was not paying attention to

him and was stubborn. He was detained for five days. He reentered the United States two months

later. He was not mistreated by the police in Mexico.

Respondent explained that he was not part of the Surenos gang when he was in Mexico.

However, he later became a member of the Surenos that same year. He has numerous tattoos:

clown tattoo, Sur, STC, Cry Now Smile Later, and other tattoos on his fingers. He is still a

Later, and other tattoos on his fingers. He is still a - member of the Surenos,

- member of the Surenos, but he has· decided that he no longer wishes to participate. He stopped

associating with the Surenos in 2012. He never told them anything about leaving due to his fear

that he would be harmed. For example, he feared he could have been stabbed or shot. He saw

such things and participated in harming others. He joined because there were other groups that

tried to jump them. He joined the group for support since he did not have any when he was

fifteen or sixteen years old.

He first started having symptoms of schizophrenia between 2010 and 2011. He started

hearing voices. The voices wanted him to come with them. They were loud, and it startled him.

7

Immigrant & Refugee Appellate Center, LLC | www.irac.net

Immigrant & Refugee Appellate Center, LLC | www.irac.net He heard a male voice in English, which
Immigrant & Refugee Appellate Center, LLC | www.irac.net He heard a male voice in English, which

He heard a male voice in English, which scared him. He compared it to the "Devil's" voice. 1-:{e

was frightened and did not tell anyone. Later, he told his cousin, who suggested that Respondent

go jogging. Respondent went jogging, but he continued to hear the voices.

Respondent now takes medications, and he does not hear the voices very frequently. He

estimated he hears it once a month. When he hears the voice, he feels like a different person. He

described feeling like nothing would happen to him if he jumped off a bridge or threw himself in

front of a

car. It would be

like

his "destiny."

Other voices call him, but he ignores

Sometimes he yells at them, uses foul words, and offends them.

he yells at them, uses foul words, and offends them. them. He was arrested for burglary.

them.

He was arrested for burglary. He said he was hearing voices at the time. He explained it

was a problem with his father who did not treat him correctly. He felt his father was a coward

and dishonest. He testified the voices forced him to open the door. His father suspected him of

stealing $2,000. He denies the allegation. Respondent did not want to go to court because he ran

the risk of losing. He claims his father had to testify so he made up the theft. He was offered a

plea agreement and considered it a good deal. He was treated, prescribed medicine, and restored

to competency. He accepted the plea deal.

and restored to competency. He accepted the plea deal. He has not- spoken with his father

He has not- spoken with his father because he does not want-to.

He explained his fear to return to Mexico. He thinks he may be harmed by a member of

another gang. He does not think Mexico can treat his schizophrenia. He does not know if he can

get medication. He said something could happen to him, like "going mad."

He fears gangs because he might be in their territory. He might have to stay in his house.

He fears recruitment. He thinks that he will stand out to gang members because he has gang

tattoos.

8

Immigrant & Refugee Appellate Center, LLC | www.irac.net

Immigrant & Refugee Appellate Center, LLC | www.irac.net On cross-examination, Respondent explained he was hanging

On cross-examination, Respondent explained he was hanging out with a gang in Mexico,

but he was not ''jumped" in. (See also Exh. 7 at 8 (Respondent's declaration)). He was hanging

out with his cousin who was in a gang and his cousin's friends. In the declaration, Respondent

said everyone knew where everyone is coming from depending on how they enter the city and

that is how they knew how that Respondent and his cousin were part of Sur 13. Id He testified

that each town belongs to a certain gang and that Santa Catarina is with Sur 13. He was attacked

in Juxtlahuaca because he was running with Sur 13 and they got in the other gang's territory. He

explained that he ran with the gang so they could back him up when he needed support. He had

not been invited to join the gang yet and was not formally a member. This is when his father

called the police. He was running with his cousin and the gang in Mexico. His father was mad

because Respondent was not getting up in the morning and had shaved his head. Id. Respondent

shaved his in Mexico. His father would not have accepted him bringing gang members to the

home.

Respondent does not have family in Mexico. His cousin is now in the United States.

Respondent agreed that he would not necessarily have to return to Oaxaca if Respondent

is removed to Mexico. However, Respondent believes that it is- not that easy to go-to a new place.

He could get disoriented or lost. He wants to stay with his younger sisters in the United States

His siblings went with him to Mexico for the funeral. They have not returned to Mexico after the

visit.

He was sentenced to thirteen months for the burglary offense. He received good time

credit. He did not seek any medical attention after the fights he got into in Mexico.

9

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Immigrant & Refugee Appellate Center, LLC | www.irac.net c On re-direct examination, Respondent clarified that

c

& Refugee Appellate Center, LLC | www.irac.net c On re-direct examination, Respondent clarified that someone

On re-direct examination, Respondent clarified that someone is not officially part of a

gang until (s)he is jumped in. He was running with the gang before he joined. In Mexico he

attended school through the fourth grade. He lived in Santa Catarina.

2. Testimony ofDr. Robert Kirkland

Doctor Kirkland testified telephonically. His declaration is in Exhibit 8 at 8-14. He has a

M.A. and Ph.D. in Latin American studies. He has military experience. He wrote a book "Drug

Cartel and Gang Violence in Mexico and Central America," which was published in 2015. He

has reviewed respondent's declaration.

Dr. Kirkland offered that it is likely respondent would suffer hann that is different than

2006

if

he

is

removed

to

Mexico

now

because:

1)

violence

is

worse;

2)

there

has

been

fragmentation of the gangs (in fighting and violence); 3) MS 13 has become more linked with the

Zetas; and 5) respondent's

mental

health

condition.

Dr. Kirkland assumes that Respondent's

mental health condition has gotten worse since 2006 and that he may be taken advantage of.

He testified that the government of Mexico is doing the best it can. There are high profile

of Mexico is doing the best it can. There are high profile arrests of cartel leaders,

arrests of cartel leaders, but at the same time only 25% of crimes are investigated and only 2%

- -a.re prosecuted. He thinks the government· will try to protect Respondent, but he does not think ·

the government will be able to.

but he does not think · the government will be able to. Dr. Kirkland testified about

Dr. Kirkland

testified about police corruption in Mexico.

He explained that the local

police are being replaced with state and federal police officers. He described corruption at the

local level. He said respondent's hometown is small. He does not believe that the police officers

in Respondent's home town would go after him if Respondent relocated to a large urban area.

However, he believes that Respondent would probably be caught up in gang violence though.

10

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Immigrant & Refugee Appellate Center, LLC | www.irac.net When individuals are deported, their criminal

When

individuals

are

deported,

their

criminal

records

are

made

available

to

the

authorities.

He

speculates

that

there

are

officers

who

monitor

the

records and might

share

Respondent's criminal record with local gangs.

Dr. Kirkland described the reach of the Zetas. He explained that the Zetas are the most

powerful group in Mexico from the Gulf of Mexico to the Mexico-Belize border. Id. at 11. He

claims the Zetas know if someone is removed. He said respondent is a member of Surenos, and

he would most likely join a rival gang in Mexico and be harmed. The gangs might know him

from his activities in 2006 because he is from a small town.

On cross-examination, Dr. Kirkland recently retired from the military. With the military,

he reported on intelligence and security in Latin America. He also taught. He has not visited

Mexico since 2003. He wrote about the role of the Mexican military in drug violence. He agreed

that

the

United

States

participates

and

cooperates

in

drug

enforcement

activities

with

the

Mexican authorities. He has not worked with the Mexican

police.

He testified that not every

police officer in Mexico is corrupt. There are officers at the federal and state level who are

competent. The Mexican government is taking measures to fight the cartels. There is a push to

move the federal resources to the local level because there is a lot less corruption ·at the federal·

because there is a lot less corruption ·at the federal· level than the local level. There

level than the local level. There is screening by the federal government of local officials. Since

2009, the military has been deployed to assist local officials, but there has been criticism of some

violence by the military. The federal government is trying to affect things at the local level.

He understands that the government is given information about who is being removed

and why when someone is removed to Mexico. He has heard about this but does not have

personal experience. He does not know what percentage of people have problems because of

their criminal history.

11

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Immigrant & Refugee Appellate Center, LLC | www.irac.net He was asked about Z-42, but the witness
Immigrant & Refugee Appellate Center, LLC | www.irac.net He was asked about Z-42, but the witness

He was asked about Z-42, but the witness does not know of him. This man was recently

captured. Dr. Kirkland acknowledges that the Mexican authorities are making arrests and trying

to make efforts to control the situation. He described the situation in Mexico as a "difficult

thing." Dr. Kirkland mentioned that

he

believes the government of Mexico is trying, but he

believes that Respondent would be at risk at the local level where respondent would be.

He thinks

the gang

violence

in

Oaxaca has

gotten worse,

though there

is no travel

warning by the United States Department of State for that state. (Exh. 6 at 19). He described

degrees of security. He described Oaxaca because it is more remote and safer.

3. Testimony ofDr. Whitney Duncan

On February 9, 2017,

the court granted the

motion

for

telephonic

testimony by Dr.

Duncan as an accommodation under Matter ofM-A-M-. The court granted the motion by counsel

to appear telephonically as another accommodation under Matter ofM-A-M-.

Her curriculum vitae is accurate and mostly up-to-date. She has issued other articles. Her

opinion

report

chronically

ill

is

in

the

record.

people

who

have

See Exh.

18

no

family

ill is in the record. people who have See Exh. 18 no family 5-13. In her

5-13.

In

her

report,

support

or

economic

Dr.

Duncan

means

and

referred

to

who

often

permanently reside in mental health institutions with little hope of returning to society in Mexico

as "abandonados" and "cronicos.'' Id at 7. It is her opinion that the terms, "abandonados" and

"cronicos" are commonly known and understood in the context of psychiatric care. Most people

would understand "abandonados" to mean individuals who have been abandoned in a mental

health

institution and forgotten by society. The average person would not know the clinical

definition

of psychosis,

but

generally

people

know

what

psychosis is

and would recognize

someone

showing

symptoms

of psychosis.

Most

people

understand

that

psychosis

involves

hallucinations and recognize that behavior as a symptom of psychosis.

12

She has heard of some

Immigrant & Refugee Appellate Center, LLC | www.irac.net

Immigrant & Refugee Appellate Center, LLC | www.irac.net abuses in psychiatric hospitals. She worked primarily with

abuses in psychiatric hospitals. She worked primarily with out-patient individuals. She has seen

solitary

confmement,

neglect

of

in-patients,

and

ovennedication.

She

is

aware

of

severe

allegations of mistreatment by mental health staff such as throwing food at patients and feeding

them rotten food, but she never observed that or heard that from the people she interviewed. Dr.

Duncan confirmed there is a lack of funding for mental health in Mexico and a lack of training of

mental health professionals. The budget for health care is low. She thinks the low budget reflects

how the Mexican government views mental health, i.e. a low budget for a low priority. There is

discrimination and stigma in allocating funds. She testified there are more funds dedicated for

AIDS treatment because it is deemed a higher priority by the government. She explained that

budget decisions are intentional decision and these decisions are rooted in the stigma toward

mental health. Underfunding is a

constant

problem for practitioners and there are on-going

efforts and criticisms by practitioners to increase funding.

The "Hidalgo Moder is an effort to move mental health care from a hospital setting to a

more community based treatment. The focus is more on psychiatric care and a reintegration of

patients

into

communities.

There

are

also

efforts

to

staff general

clinics

with

psychiatric

professionals, and may less acute-forms -of care available.- She believes there has been little

success with the program because of underfunding. Rather, any success is very uneven and only

a few hospitals have implemented the models. In Oaxaca, they built villas for potential living

space but no patients currently live there. Many similar projects are begun, but never fmished. In

Oaxaca, the patients still live in a dorm-like setting and wear "uniforms." She does not think the

program was successfully implemented.

Respondent was originally from Oaxaca. His immediate family is in the United States.

He does not have a support network in Mexico. He has gang tattoos that are visible. He suffers

the United States. He does not have a support network in Mexico. He has gang tattoos

13

Immigrant & Refugee Appellate Center, LLC | www.irac.net

Immigrant & Refugee Appellate Center, LLC | www.irac.net from schizophrenia. Even when medicated he becomes

from schizophrenia. Even when medicated he

| www.irac.net from schizophrenia. Even when medicated he becomes symptomatic. Dr. Duncan thinks it is highly

becomes symptomatic. Dr. Duncan thinks it is

highly unlikely Respondent would be able to access medical care that he requires outside of an

institution. There is only one public mental health facility in Oaxaca. His original village is at

least six hours from this facility. She thinks it would be difficult for a symptomatic person to

travel to the facility. Most people are accompanied with family members. Sometimes patients are

transported by police after been found on the street. Without a network and resources to pay for

private healthcare treatment, it would be very difficult for someone to get non-institutionalized,

out-patient

treatment.

In

order

to

have

psychiatric

care

covered

through

the

public

health

insurance would require effort to navigate the paperwork. There are some bureaucratic barriers to

obtaining healthcare. Also, some specialized psychotropic medications are not covered by the

people's health insurance or available at all institutions.

Dr.

Duncan acknowledged that is possible for Respondent to live in another city, for

example Mexico City that has more than one hospital. However, she thinks deportation as well

as relocation to an unknown city in Mexico could exacerbate his mental health condition. Even

in Mexico City where he would have more options for care, he would still have to get emolled in

the public health insurance and be compliant with this medical care without any·familialsupport

network.

On cross-examination, Dr. Duncan testified she has not testified for OHS as an expert.

She is being paid for her testimony by the Vera Institute. Most of her work is in research. She is

not formally or officially

employed by immigrant rights advocacy groups. She has broader

expertise in Oaxaca and Latinos in the United States. She referenced the 2010 ORI report her

affidavit. The data referenced in her affidavit is at least six years old, but she also relied on recent

14

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Immigrant & Refugee Appellate Center, LLC | www.irac.net c articles and literature from 2016. original fieldwork.

c

articles and literature from 2016.

original fieldwork.

She has

and literature from 2016. original fieldwork. She has also returned to Mexico multiple times since her

also returned to Mexico

multiple

times since her

She reached a conclusion about how the respondent would be treated in Mexico but she is

not a clinician. She studies clinical treatment. She is emphatic that Respondent needs a familial

support system or support system of some kind to be successful in Mexico. Dr. Duncan assumes

Respondent

will

not

have

any support.

She is aware Respondent has

multiple U.S.

citizen

siblings, it is her impression they have declined to assist him.

In her declaration, she referenced interviews with mental health practitioners and patients

conducted in Oaxaca. The research and interviews she conducted provided the basis for her 2012

dissertation. For the most part, the patients she interviewed did not have active psychosis. She

concluded in her dissertation that the Oaxaca system was improving. She explained however that

psychiatric

care

was

only

one

piece

of

her

dissertation

and

the

area

she

saw

the

most

improvement was access to less specialized forms of care, such as staffing psychiatrist at general

clinics. However, she recently published an article that public psychiatric care has not improved.

an article that public psychiatric care has not improved. The closest public mental health facilities to

The

closest

public

mental

health

facilities

to

Oaxaca

is

Puebla

and

Chiapis.

Dr.

Duncan

- estimated that about eight out of46 hospitals have successfully implemented the Hidalgo Model.

Dr. Duncan agreed that there are public hospitals and generally medication is available at

public hospitals. She takes issue with how low the federal budget is for mental health care. She

has not reviewed state or local budgets for mental healthcare. She agreed mental health treatment

is a broad category that includes counseling for anxiety to individuals with active psychosis. Her

dissertation indicates that some services, such as HIV, do include a mental health component.

She agreed she is not a budget expert. She does not think the government properly funds mental

health services. She has compared the guidelines for proper mental health ftmding in Mexico to

15

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Immigrant & Refugee Appellate Center, LLC | www.irac.net other countries and deems it low. She agreed
Immigrant & Refugee Appellate Center, LLC | www.irac.net other countries and deems it low. She agreed

other countries and deems it low. She agreed that federal funding is limited and governments

have to make decisions on how to allocate. She agreed that just because there are fewer funds

does not mean this is a low priority. For example, the government may be spending more money

to combat drug trafficking than they are in mental health. She agreed that drug use can contribute

to psychosis. She does not think it is it is reasonable to spend money on preventing access to

drugs

as

a means

of

preventing

drug-related

psychosis because there

are

plenty

of

mental

illnesses that are unrelated to drug use. Dr. Duncan thinks that many health organizations would

recommend more funding regardless of whether there is civil unrest in the country.

regardless of whether there is civil unrest in the country. S h e confinned the people

She confinned the people most at risk at those who have never received treatment. She

recognizes that Respondent does have a mental health diagnosis, has received treatment, and

takes medications to meet his needs. She detailed things that could happen to Respondent or

theorized what might happen to him, should he return to Mexico; including the worst possible

scenario.

Dr. Duncan confirmed the term "abandonados" is just the Spanish word for someone who

has been abandoned. This can refer to anyone, including children, but the media has used this

·-tenn to refer to· people with mental health issues

who- languish in mental health institutions -

issues who- languish in mental health institutions - because their families do not want to care

because their families do not want to care for them. This term refers to the abandoned situation,

not the

specific mental health condition. She

agreed

the

term refers to people with mental

illnesses

other

than psychosis, but it mostly refers to

those

in mental health

institutions. If

respondent was returned to Mexico, he would not be sent to a mental health institution.

Dr. Duncan testified that people with psychosis can function very well if properly treated.

She does not think anyone should manage their care on their own they should have a medical

professional

supervising

any

psychiatric

treatment.

16

Dr.

Duncan

agreed

that

people

with

Immigrant & Refugee Appellate Center, LLC | www.irac.net

Immigrant & Refugee Appellate Center, LLC | www.irac.net psychosis are not the only ones that can

psychosis are not the only ones that can act in socially unacceptable ways; anyone can act in

socially unacceptable ways. It is her experience that people tend to assume a person who acts in

an

aberrant or deviant way

has a

mental problem.

She confirmed that

her concern is that

respondent can be discriminated against if thought mentally ill. Not all people who have mental

health conditions in Mexico are in hospitals.

On re-direct examination, Dr. Duncan was asked about the stigma of someone acting in

an erratic way. Dr. Duncan testified that public health workers have tried to educate people of the

symptoms of medical health issues. In Mexico, people manifesting symptoms could be referred

to as "crazy" or "loco," which are derogatory terms to describe people. She heard accounts of

mistreatment of people exhibiting symptoms by people around them in public. There is not a

deep understanding of mental illness in the general public. She stated, of course, not everyone

reacts this way.

Dr.

Duncan

was

asked

about

funding

of

mental

health

and

perceives

this

as

a

discriminatory attitude. If this was brought to the government's attention in the ORI report and

there has been little improvement. Dr. Duncan thinks the continued lack of funding reflects the

government's willingness-to address the issue.

·

On re-cross, Dr. Duncan agreed that since the 2010 DRI report some changes have been

made in Mexico, but not the prevention of all abuses. She also testified that access to institutions

has been limited to some investigators. She is not sure how many hospitals were investigated.

m.

Credibility

Respondent submitted his application for asylum, withholding of removal, and protection

under the Convention Against Torture on August 26, 2015. Exh. 3. Therefore, his application is

subject to the credibility provisions of the REAL ID Act. Matter of S-B-, 24 I&N Dec. 42, 43

17

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Immigrant & Refugee Appellate Center, LLC | www.irac.net (BIA 2006) (finding all applications filed after May

(BIA 2006) (finding all applications filed after May

Pursuant to the REAL ID Act of 2005 § 103(a), the

11, 2005 subject to the REAL ID Act).

court "may base

an adverse credibility

determination on any relevant factor that, considered in light of the totality of the circumstances,

can reasonably be said to have a 'bearing on [the Respondent's] veracity."' Ren v. Holder, 648

F.3d 1079, 1084-85 (9th Cir. 2011) (quoting Shrestha v. Holder, 590 F.3d 1034, 1044 (9th Cir.

2010)). Additionally, inconsistencies that do not speak to the applicant's veracity should not be a

part of the basis of an adverse credibility finding. Id. Under the totality of the circumstances, the

Immigration Court may consider:

the demeanor, candor, or responsiveness of the respondent 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 circwnstances under which the statements were made), the internal 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.

INA§ 208(b)( l )(B)(iii); see also Shrestha, 590 F.3d at 1040 (''The above list is not exhaustive

because the trier of fact may also consider 'any other relevant factor."'). The Immigration Judge

may not ''cherry pick solely facts· favoring an adverse credibility detennination while ignoring

facts that undermine that result." Id

evidence before the court.

Instead, the

Immigration Judge must consult all of the

The court reiterates its prior findings that Respondent and Dr. Robert Kirkland testified

credibly. Additionally, the court finds Dr. Whitney Duncan testified credibly.

IV. Applications for Relief

A.

Asylum

18

credibly. Additionally, the court finds Dr. Whitney Duncan testified credibly. IV. Applications for Relief A. Asylum

Immigrant & Refugee Appellate Center, LLC | www.irac.net

Immigrant & Refugee Appellate Center, LLC | www.irac.net The court restates its finding that Respondent's

The court restates its finding that Respondent's conviction for burglary in the first degree

was not a particularly serious crime and he is eligible to apply for asylum and withholding of

removal. U Decision at 16-20.

An applicant for asylum bears the burden of proving that he or she is a "refugee" under

INA§ 10l(a)(42)(A). INA§ 208(b)(l)(B)(i). A "refugee" is

any person who is outside any country of such person's nationality or, in the case of a person having no nationality, is outside any country in which such person last habitually resided, and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of

or herself of the protection of, that country because of persecution or a well-founded fear ofpersecution

persecution or a well-founded fear ofpersecution on account of race, religion,

nationality, membership in a particular social group, or political opinion.

INA§ 10 l (a)(42)(A) (emphasis added). Thus, an asylum applicant may demonstrate "refugee"

status in either of two ways:

demonstrating past persecution or a well-founded fear of future

persecution. See id; 8 C.F.R. § 1208.B(b); see also Deloso v. Ashcroft, 393 F.3d 858, 863-64

(9th Cir. 2005) (procedures for establishing asylum eligibility).

2005) (procedures for establishing asylum eligibility). On appeal, the respondent did not challenge the court's

On appeal, the respondent did not challenge the court's prior findings that Respondent

had not demonstrated past persecution or a well-founded fear of future persecution on account of

his race and political opinion. BIA Decision at 2. Accordingly, the Board held those claims have

at 2. Accordingly, the Board held those claims have been waived. Id at 2 n.4. Also,

been waived. Id at 2 n.4. Also, as previously mentioned, the Board upheld the court's denial of

Respondent's claim for asylum and withholding of removal based on his membership in the

particular social group of "Mexican men who are presumed to be gang members because of

visible gang tattoos." Id at 2. Thus, the court will only address Respondent's claim he has a

well-founded fear of future persecution on account of his membership in the particular social

group of "indigent Mexican without familial support and with chronic and perceptible mental

illness involving psychosis."

1. Future Persecution

19

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Immigrant & Refugee Appellate Center, LLC | www.irac.net In the absence of past persecution, an applicant

In the absence of past persecution, an applicant may be eligible for asylum based on a

well-founded fear of future persecution. See 8 C.F.R. § 1208.13(b). A well-founded fear must be

subjectively genuine and objectively reasonable. Rusak v. Holder, 734 F.3d 894, 896 (9th Cir.

2013); Ahmed v. Kei sler, 504 F.3d 1183, 1191 (9th Cir. 2007). The subjective prong of the well­

founded fear test is satisfied by an applicant's credible testimony that he genuinely fears harm.

See Ahmed, 504 F.3d at 1191; Sae/ v. Ashcroft, 386 F.3d 922, 924 (9th Cir. 2004). Because of

Respondent's

mental health

condition,

genuine.

Matter

of J-R-R-A-,

26

l&N

the court will accept Respondent's subjective fear as

Dec.

609,

611

(BIA

2015).

Thus,

the

court

finds

Respondent's expressions of fear sufficient to establish that he genuinely fears hann if he is

removed to Mexico.

that he genuinely fears hann if he is removed to Mexico. The objective prong may be

The objective prong may be satisfied "by adducing credible, direct, and specific evidence

in the record of facts that would support a reasonable fear of persecution." Ladha v. INS, 215

F.3d 889, 897 (9th Cir. 2000) (quoting Duarte de Guiniac v. INS, 179 F.3d 1156, 1159 (9th Cir.

1999) (internal quotation marks omitted), overruled on other grounds by Abebe v. Mukasey, 554

F.3d 1203, 1208

(9th Cir. 2009) (en

bane) (per

curiam). The applicant's fear

may

be well­

founded even if there is only a sligh� -though discernible, chance of persecution based on a

protected ground. INS v.

Cardoza-Fonseca, 480 U.S. 421, 431 (1987). "[E]ven a ten percent

chance of persecution may establish a well-founded fear." Al-Harbi v. INS, 242 F.3d 882, 888

(9th Cir. 2001); see also Halim v. Holder, 590 F.3d 971, 977 (9th Cir. 2009). In determining

whether an applicant's fear of futlll"e persecution is objectively reasonable in light of current

country conditions, it is necessary to conduct an individualized analysis of how such conditions

will affect the applicant's specific situation. Marcos v. Gonzales, 410 F.3d 1112, 1120-21 (9th

Cir. 2005).

20

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Immigrant & Refugee Appellate Center, LLC | www.irac.net Respondent fears he will be subjected to numerous

Respondent fears he will be subjected to numerous abuses, including severe physical

mistreatment_ in the future by members of the public, government officials or law enforcement

officers, or staff at one of Mexico's mental health facilities on account of his membership in the

particular social group of "indigent Mexicans without familial support and with chronic and

perceptible mental illness involving psychosis." Exh. 16 at 28.

For the following reasons, the court again finds Respondent's proposed social group of

"indigent Mexicans without familial support and with chronic and perceptible mental illness

support and with chronic and perceptible mental illness involving psychosis" does not qualify as a cognizable

involving psychosis" does not qualify as a cognizable particular social group. A particular social

group must be (1) composed of members who share a common immutable characteristic, (2)

defined with particularity, and (3) socially distinct within the society in question. See Reyes v.

Lynch, 842 F.3d 1125, 1135-37 (9th Cir. 2016) (according Chevron deference to the Board's

definitions of particularity and social distinction); Matter of M-E-V-G-, 26 I&N Dec. 227 (BIA

2014); Matter ofW-G-R-, 26 I&N Dec. 208 (BIA 2014). An immutable characteristic is "one that

the members of the group either cannot change, or should not be required to change because it is

fundamental to their individual identities or consciences

[or]

beyond the power of an

individual to-change." Matter ofAcosta, 19 I&N Dec.211, 233-34 (BIA l985). The part_icul�ty

I&N Dec. 211, 233-34 (BIA l985). The part_icul�ty factor requires that the group not "be amorphous,

factor requires that the group not "be amorphous, overbroad, diffused, or subjective," and it

"must be defined by characteristics that provide a clear benchmark for determining who falls

within the group." M-E-V-G-, 26 I&N Dec. at 239; see also Henriquez-Rivas v. Holder, 707 F.3d

1081, 1091 (9th Cir. 2013) (en bane). A proposed social group is "socially distinct," if the

society, in which the group exists, would perceive them as a group. M-E-V-G-, 26 I&N Dec. at

238, 240-41; see also W-G-R- 26 l&N at 216.

21

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Immigrant & Refugee Appellate Center, LLC | www.irac.net On further review of the record, the court

On further review of the record, the court now agrees with Respondent and finds his

proposed group is defined by the requisite immutable characteristics and particularity; however,

the court further

finds Respondent's particular social group lacks the third element of social

distinction. First, the court agrees with Respondent that his proposed social group is defined by

reference to immutable characteristics.See Matter of Acosta, 19 I&N Dec. 211,

233-34 (BIA

1985) (explaining that an immutable characteristic is "one that the members of the group either

cannot change, or should not be required to change because it is fundamental to their individual

identities

or

psychotropic

consciences

[or]

beyond

the

power

of

an

individual

to

change").

While

medications can alleviate the symptoms of mental illness, an individual with a

mental health condition, such as schizophrenia, cannot change their diagnosis and will struggle

to manage the effects of their mental illness all their lives.See Temu v. Holder, 740 F.3d 887,

896-97

(4th Cir.

2014)

(finding the group of "individuals with bipolar disorder who exhibit

erratic

behavior"

possessed

immutable

characteristics

because

mental

illness

was

incurable

despite

being

controllable

with

medication). Thus, the

court finds that Respondent's mental

health condition is an immutable characteristic beyond his ability to change. See Tchoukhrova v.

Gonzales, 404 F.3d 1181, 1188-90-(9th Cir. 2-005) vacated on other grounds by Gonzales v.

Tchoukhrova,

549

U.S.

801

(2006)

(finding

that "Russian

children with disabilities that are

serious and long-lasting or permanent in nature and parents who care for them" qualified as a

particular

social

group

because

long.;.lasting

characteristics that could not be changed).

or

near

permanent

disabilities

were

immutable

Second, the court agrees that Respondent's proposed social group is sufficiently precise

to meet the particularity requirement. A group is particular if it is capable of being accurately

described "in a manner sufficiently distinct that the group would be recognized, in the society in

22

Immigrant & Refugee Appellate Center, LLC | www.irac.net

Immigrant & Refugee Appellate Center, LLC | www.irac.net question, as a discrete class of persons."

question, as a

discrete

class of persons." Henriquez-Rivas, 707

F.3d at 1091.

Respondent's

proposed social group is formed by stringing together several adjectives that gradually narrow

the scope of the Mexican population to a particular subsect of people. First, Respondent limits

the general Mexican population to only "Mexicans without familial support," which the court

finds Mexican society recognizes as the poor, unfortunate persons who

exist outside of the

typical social structure of the close-knit family unit. Exh. 18 at 7 (Dr. Duncan's Report); Exh. 18

at 22-31 (discussing the stigma by family members toward fellow family members with mental

illness and reliance on familial support). Second, Respondent further restricts the boundaries of

his proposed social group by limiting the group of "Mexicans without familial support" to only

those

members

who

also

have

mental

illnesses

that

are

chronic,

perceptible,

and

involve

psychosis. Contrary to DHS's argument, the court finds Respondent's proposed social group

meets the particularity requirement because it is defined by several clear, specific benchmarks

that determine who falls in the group. See M-E-V-G-, 26 l&N Dec. at 239. In fact, the court finds

the

most

particular

limiting

characteristic

of

Respondent's

proposed

social

group

is

its

requirement that its members have a mental illness involving psychosis, which often causes them

- to exhibit outwardly visible and recognizable. symptoms, such as acting on auditory -or visual

hallucinations. The court agrees with Dr. Duncan that even Mexicans with little to no formal

education have a general understanding that a person with psychosis may experience auditory or

visual hallucinations. Exh.

18 at 7. The court notes its doubts that the additional nonphysical

attributes of being indigent and having a chronic mental illness may be too amorphous and

subjective

to

meet

that

particularity

requirement.

However,

in

the

end,

the

court

finds

Respondent's proposed social group is narrowly defined by precise limiting characteristics when

considered as a whole meet the particularity requirement.

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Immigrant & Refugee Appellate Center, LLC | www.irac.net Yet, the court finds the same degree of

Yet, the court finds the same degree of specificity in Respondent's proposed social group

makes it difficult for Mexican society to view this particular subsect of people as belonging to a

distinct

group.

See Henriquez-Rivas,

707

F.3d

at

1090

(explaining

that

the

diversity

of a

particular social group's membership may prevent it from being perceived as belonging to the

same group). A proposed social group is considered "socially distinct," if the society, in which

"socially distinct," if the society, in which the group exists, would perceive them as a group.

the group exists, would perceive them as a group. M-E-V-G-, 26 I&N Dec. at 24 0; see also W-G­

R- 26 I&N at 216. Again, the applicant bears the burden of presenting some "society-specific"

evidence to demonstrate that the society in question "perceives, considers, or recognizes persons

sharing the particular characteristic to be a distinct or separate group within society." Pirir-Boc v.

Holder, 750 F.3d 1077, 1084 (9th Cir.

2014); M-E-V-G-, 26 I&N Dec. at 241. In addition to

society's perspective, the Immigration Judge should also consider the persecutor's perspective

relevant insofar as it reflects the views of the greater society and/or "play[s] a role in causing

members of society to view a particular group as distinct." M-E-V-G-, 26 l&N Dec. at 223, 242;

Pirir-Boc, 750 F.3d at 1083 n. 6. Respondent argues that his particular social group is socially

distinct

because

the

media,

health

practitioners,

and

the

general

public

refer

to

"indigent

Mexicans without familial support and with chronic and -perceptible mental illness involving

psychosis" as "abandonados" or "cronicos." Exh. 16 at 20-23.

First, the court finds the record evidence does not show the term "abandonados" is widely

used by Mexican society to refer to individuals like Respondent or that Mexican society uses the

term "abandonados" as a commonly accepted definition for indigent individuals with a chronic

perceptible mental illness involving psychosis. See Matter of M-E-V-G-, 26 I&N Dec. at 239;

Matter of W-G-R-, 26 l&N Dec. at 214. Rather, the evidence shows that the term "abandonados"

is typically used only by individuals in the mental health field, such as practitioners, institution

24

Immigrant & Refugee Appellate Center, LLC | www.irac.net

Immigrant & Refugee Appellate Center, LLC | www.irac.net staff, and advocacy NGOs, like Disability Rights

staff,

and

advocacy

NGOs,

like

Disability

Rights

International,

who

coined

the

term

"abandonados" to draw attention to the plight of mentally ill individuals who languish in mental

health institutions because their families do not want to or cannot afford to care for them. See

Exh. 7 at 289, 311, 323, 474. Indeed, even Dr. Duncan testified the terms "abandonados" and

"cronicos" are commonly known and understood in the context of psychiatric care. Outside the

context of mental health care, there is nothing in the record showing that Mexican society has by

and large adopted

either "abandonado" or "cronico" to refer to "indigent Mexicans without

familial support and with chronic and perceptible mental illness involving psychosis.',.

Instead,

the

evidence

shows

that

due

to

a

"deeply

rooted

mix

of

cultural

and

socioeconomic factors" the general Mexican population broadly views individuals with mental

illness as "loco" or "crazy" without regard to the various types of mental illness the persons

have. Exh. 7 at 573-577 (CNN, Stigma Haunts Mentally RI Latinos (Nov. 15, 2010); see also id

at 539-572 ("No Soy loco at p. 7). And this notion of painting the mentally ill with a broad brush

is

exacting what the term

"abandonados" does.

As

Dr.

Duncan

admitted

in court,

the term

"abandonados" broadly refers to mentally ill patients in institutions, not just those with chronic,

ill patients in institutions, not just those with chronic, - perceptible mental illnesses -involving psychosis.

- perceptible mental illnesses -involving psychosis. Although there is evidence Latinos make some

distinctions among the

mentally

ill,

such as between

those

who exhibit violent,

aggressive

behavior and those who do not as well as between those who require medication and those who

do

not,

there

is

no

evidence

that

Mexican

society

would

differentiate

between

a

bipolar

individual exhibiting perceptible symptoms of mental illness and Respondent, a schizophrenic

person with psychosis. Id ("No Soy loco at p. 7). Yet, a bipolar individual exhibiting perceptible

symptoms of mental illness would not fall within the tightly defined parameters of Respondent's

proposed social group. Respondent also argues that use of the term by the media in news articles

25

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Immigrant & Refugee Appellate Center, LLC | www.irac.net shows Mexican society has adopted the term. The

shows Mexican society has adopted the term. The court disagrees. A closer look at the record

reveals that all of the articles mentioning the term come from American news sources and every

time an article used the term "abandonados" it was referring to the Disability Rights International

20 I 0 report, which had been published around the same time of the news article.

Second, despite Respondent and Dr. Duncan's assertions that these terms specifically

refer to individuals in Respondent's proposed group, the court finds these terms broadly refer

patients in mental health institutions. Exh. 16 at 17-18, 21. The record evidence makes clear that

mental

health

institution staff and

use the term "abandonados" to refer to

individuals

who

pennanently reside in a mental health institution. However, Respondent's proposed social group