Introduction: Matter of J-R-G-P-, 27 I&N Dec. 482 (BIA 2018)

On October 31, 2018, the Board of Immigration Appeals (BIA) published a precedential decision in Matter of J-R-G-P-, 27 I&N Dec. 482 (BIA 2018) [PDF version]. The decision concerns an application for protection under the Convention Against Torture. The Board held that where an applicant “establishes that abusive or squalid conditions in pretrial detention facilities, prisons, or mental health institutions in the country of removal are the result of neglect, a lack of resources, or insufficient education,” but where the applicant does not establish that there is a specific intent to commit “torture” in said places, an immigration judge’s finding that the applicant did not establish a significant likelihood that he or she would experience “torture” if removed to the country in question does not constitute “clear error.”

In this article, we will examine the factual and procedural history of Matter of J-R-G-P- along with the Board’s analysis and conclusions. To learn more about protection under the Convention Against Torture, please see our full articles on the eligibility requirements [see article], the burden of proof [see article], and the definition of “torture” [see article] in the context of this special form of immigration protection.

Factual and Procedural History: 27 I&N Dec. 482-83

The respondent, a native and citizen of Mexico, entered the United States without inspection. Based on his entry without inspection, the Department of Homeland Security (DHS) initiated removal proceedings against him.

In proceedings, the respondent conceded removability but sought protection in the form of deferral of removal under the Convention Against Torture [see article]. The respondent’s claim was not based on any past torture. Instead, the respondent asserted that, based on his mental heath issues, he was likely to be arrested and either imprisoned or committed to a mental health facility upon being removed to Mexico. He further asserted that he would be subjected to harm rising to the level of torture in either case.

The Immigration Judge initially denied the respondent’s application for deferral of removal and ordered him removed to Mexico. However, on appeal, the Board in an unpublished decision filed on April 12, remanded the record to continue the proceedings on multiple grounds. First, the Board decided that there was good cause for remand because “the respondent’s limited ability to testify and assist counsel in his case,” warranted the providing more time to his attorney to develop on the record. Second, the Board held that the Immigration Judge had made a clear error in determining that the respondent’s symptoms were not always readily apparent to others and that he had not shown that it was likely that these symptoms would come to the attention of Mexican authorities. Here, the Board cited to “the respondent’s mental health diagnoses, his behavior in court, his involuntary hospitalizations in the United States, and his interactions with the criminal justice system in this country” to conclude that “it was more likely than not that his mental health symptoms would be evident in Mexico.”

On remand, the Immigration Judge concluded that it was likely that the respondent would be arrested and imprisoned in Mexico and that it was more likely than not that he would be involuntarily committed to a mental health facility. Thus, the remaining question was whether the respondent was more likely than not to be subjected to “torture.” Here, the Immigration Judge concluded in the negative, holding, according to the Board, “that there was insufficient evidence to show that Mexican authorities would have the specific intent to harm him in a penal or psychiatric institution.” Accordingly, the Immigration Judge again denied the respondent’s application for protection in the form of deferral of removal under the Convention Against Torture.

The respondent again appealed from the decision to the BIA. On appeal, the Department of Homeland Security (DHS) did not challenge the Immigration Judge’s finding that it was sufficiently likely that the respondent would come to the attention of authorities in Mexico based on his mental health issues and that he would more likely than not be arrested, imprisoned, or involuntarily committed to a mental health facility. Thus, the sole issue on appeal was whether the respondent had established that he would more likely than not be tortured were he to be arrested, imprisoned, or involuntarily committed to a mental health facility in Mexico. The respondent also sought to raise a new claim that he would be tortured in a homeless shelter in Mexico, but the Board stated that it would not consider this basis for protection because the respondent did not meaningfully advance it before the Immigration Judge, citing to its recent precedent in Matter of W-Y-C- & H-O-B-, 27 I&N Dec. 189, 190 (BIA 2018) [PDF version].

The Board stated that it would review for clear error the Immigration Judge’s findings regarding the specific intent of individuals who may harm an applicant for protection under the Convention Against Torture as well as what may or may not happen to the applicant in the future. Here, the Board cited to its important precedent decision in Matter of Z-Z-O-, 26 I&N Dec. 586, 590 (BIA 2015) [PDF version] [see article].

Analysis and Conclusions: Overall View: 27 I&N Dec. at 484

In Quijada-Aguilar v. Lynch, 799 F.3d 1303, 1308 (9th Cir. 2015) [PDF version], the United States Court of Appeals for the Ninth Circuit recognized that, under federal regulations, the applicant for protection in the form of deferral of removal under the Convention Against Torture has the burden of proving that “it is more likely than not that he [will] be tortured.” In that same decision, the Ninth Circuit — in the jurisdiction of which the instant case arose, the Ninth Circuit noted that claims for protection “must be considered in terms of the aggregate risk of torture from all sources, not as separate, divisible … claims.” Yet, the Attorney General held in Matter of J-F-F-, 23 I&N Dec. 912, 917 (A.G. 2006) [PDF version], that a respondent still has the burden of showing that each link in a “hypothetical chain of events is more likely than not to happen.”

Thus, in the instant case, the respondent had the burden of showing that it was more likely than not that he would be tortured in Mexico if he was arrested, imprisoned, and/or involuntarily committed to a mental health facility. While the likelihood of torture could be considered in the aggregate, however, the respondent still had the burden of showing that it was more likely than not that each part of the hypothetical chain of events would occur.

Analysis and Conclusions: Rules for the “Specific Intent To Inflict Torture”: 27 I&N Dec. at 484-86

Under 8 C.F.R. 1208.18(a)(5), an act must be “specifically intended to inflict severe physical or mental pain or suffering” to constitute torture. The Board added in a footnote that the Senate resolution ratifying the Convention Against Torture stated that “the United States understands that, in order to constitute torture, an act must be specifically intended to inflict severe physical or mental pain or suffering…” (Internal citation omitted.) In Matter of J-E-, 23 I&N Dec. 291, 299, 301 (BIA 2002) [PDF version], the Board recognized that the regulations do not recognize “negligent acts” or harm resulting from the lack of resources as constituting “torture.” In Matter of J-E-, the Board rejected a claim of protection based on substandard conditions in Haitian prisons because “there is no evidence that [Haitian authorities] are intentionally and deliberately creating and maintaining such prison conditions in order to inflict torture.” The Board concluded in that case, based on the evidence in record, that the conditions in Haitian prisons stemmed from budgetary and management problems rather than the specific intent to inflict torture.

The Board stated that a majority of the federal circuit courts defer to its decision in Matter of J-E-, including the Ninth Circuit in Villegas v. Mukasey, 523 F.3d 984, 989 (9th Cir. 2008) [PDF version]. Therein, the Ninth Circuit recognized the requirement that “the actor intend the actual consequences of his conduct, as distinguished from the act that causes these consequences.” In addition to the fact that the instant case arose in the jurisdiction of the Ninth Circuit, the Board also found Villegas pertinent because it involved a claim for protection by a Mexican national based on the likelihood of “torture” if he were to be involuntarily committed to a mental health facility in Mexico. There, the Ninth Circuit recognized that the conditions in mental health facilities in Mexico were “deplorable,” but nevertheless held that they did not arise from specific intent on the part of the Mexican Government to inflict torture. In fact, the Ninth Circuit noted that the Mexican Government was making efforts to improve the conditions of mental health facilities. Based on the facts in the record, the Ninth Circuit concluded that placement in a mental health facility in Mexico did not rise to the level of “torture” within the meaning of the Convention Against Torture. The Ninth Circuit recently reaffirmed its holding in Villegas in a non-precedent decision, Chavarin v. Sessions, 690 F.App’x 924, 926 (9th Cir. 2017).

The Board agreed with the Ninth Circuit and with its own prior precedent, concluding “that where the evidence regarding an application for protection under the Convention Against Torture plausibly establishes that abusive or squalid conditions in pretrial detention facilities, prisons, or mental health institutions of the country of removal are the result of neglect, lack of resources, or insufficient training and education, rather than a specific intent to cause severe pain and suffering, an Immigration Judge’s finding that the applicant did not establish a sufficient likelihood that he or she will experience “torture” in these settings is not clearly erroneous.”

With this holding, it is important to note that the Board did not hold that an Immigration Judge would have necessarily erred in ruling in favor of an applicant in a somewhat similar case. Notably, it cited to the decision of the Supreme Court of the United States in Cooper v. Harris, 137 S.Ct. 1455, 1465 (2017) [PDF version], wherein the Court held that, under review for clear error, a “finding that is ‘plausible’ in light of the full record-even if another is equally or more so-must govern.” The Board reached the same conclusion in Matter of D-R-, 25 I&N Dec. 445, 453-55 (BIA 2011) [PDF version] [see article].

Applying Rule to Instant Case: 27 I&N Dec. 486-87

In the instant case, the Immigration Judge concluded that any extreme pain or suffering that the respondent may experience in Mexico as an arrestee, in prison, or while involuntarily committed to a mental health facility in Mexico would more likely than not result from a lack of resources, training or negligence rather than from specific intent. The Board concluded, for the following reasons, that there was no clear error in this finding of fact, and affirmed the Immigration Judge’s decision.

The Board found no clear error in the Immigration Judge’s determination that the record did not establish that Mexican police target mentally incompetent individuals for arrest and incarcerations. Furthermore, the Board found no clear error in the Immigration Judge’s conclusion that appalling conditions in some Mexican mental health facilities result from a lack of resources and training rather than a “specific intent” to deprive detainees of treatment. For these reasons, the Board concluded that “the Immigration Judge properly found that it is not more likely than not that the respondent will be tortured in either policy custody or prison in Mexico.”

Next, the Board recognized that the record did establish that the record indicated that some detainees and prisoners in Mexico were physically abused. However, the Board stated that “it is the respondent’s burden to show that it is more likely than not that he will be subjected to this abuse and that this harm will rise to the level of torture.” The Board stated that the record included evidence “that the Mexican Government has created additional pretrial detention facilities to reduce overcrowding, devoted more resources to training prison officials, instituted an ombudsman to oversee conditions in Mexico’s prisons, and made other efforts to bring its prisons in line with international standards.” Thus, the Board affirmed the Immigration Judge’s finding that the respondent was not more likely than not to be tortured in pretrial detention or in prison in Mexico.

Regarding mental health facilities, the Board recognized, in addition to poor conditions stemming from lack of funding and training, that the record established “that some individuals committed to mental health facilities have experienced abuse.” However, the Board continued, the respondent did not establish “that such abuse is so common that it is more likely than not that he will personally experience it.”

The Board recognized testimony from the respondent’s expert witness that there are instances where the Mexican Government has failed to take action in rectifying issues in specific mental health facilities. However, the Board again noted evidence in the record that the Mexican Government is continuing “to increase access to psychiatric care, emphasiz[ing] the importance of community-based treatment options for individuals with mental health issues, and form[ing] commissions tasked with recommending improvements to [its] mental health facilities.” The Board noted that the respondent’s expert witness himself worked for two of the commissions. Based on all of the above, the Board concluded that the evidence supported the Immigration Judge’s conclusion that the respondent failed to show “a sufficient likelihood that Mexican health workers, with the acquiescence of a Government official, would have the specific intent to torture him.”

For the foregoing reasons, the Board dismissed the respondent’s appeal.

Conclusion

In Mater of J-R-G-P-, the Board followed the logic of its prior decisions and held that there is no clear error where an immigration judge denies a claim for protection under the Convention Against Torture based on squalor in detention or mental health facilities that does not arise from the specific intent on the part of the administering officials to do harm. Suffice it to say, the decision is unfavorable to certain applicants for protection under the Convention Against Torture.

Seeking protection under the Convention Against Torture, and/or asylum and withholding of removal is evidence-intensive. Thus, it is important for an alien who may have claims for any of these forms of protection to consult with an experienced immigration attorney immediately when he or she is charged as removable. An experienced attorney will be able to evaluate each specific case and determine which avenues for contesting the underlying charges, relief, and/or protection from removal may exist. Furthermore, experienced attorneys are capable of providing expert counsel to the most vulnerable clients.

To learn more about some of the issues discussed in this article, please see our growing collection of articles on asylum and refugee protection [see category] and removal and deportation defense [see category]. To read about our other articles on immigration precedent decisions, see or updated index [see index].