Erica Schommer wins appeal for man fearing torture in Mexico due to mental illness and former gang membership
Published September 10, 2014
By Daniel M. Kowalski
“We agree with the respondent that the Immigration Judge’s analysis overlooked the discussion in the DRI report regarding the use of long-term physical restraints, and how the physical pain caused by such use may constitute torture. … The Immigration Judge also did not consider the report’s statement, “The placement of a person in long-term restraints over a life-time can meet the intent requirement [of the CAT] because staff knowingly places a person in this condition” (Respondent’s Br. at 14; Exh. 8 at 332), We acknowledge that the Ninth Circuit has concluded that the conditions “in the Mexican mental health institutions exist not out of a deliberate intent to inflict harm, but merely because of officials’ historical gross negligence and misunderstanding of the nature of psychiatric illness.” Villegas v. Holder, supra, at 989. However, Villegas was rendered before the 2010 DRI report, Thus, based on the record before us, we conclude that a remand is warranted for the Immigration Judge to consider the overlooked aspects of the DRI report regarding the CAT’s intent requirement and the use of long-term physical restraints in mental health institutions as torturous conduct. …
We conclude that a remand is warranted because the Immigration Judge considered only the efforts of the Mexican federal government to combat gang violence (Respondent’s Br, at 25~27). She did not consider whether those efforts have been effective, including whether public corruption at the state and/or local level precluded those efforts from being effective.
In this regard we note that the Department of State report for 2012 contained in the record indicates that the Mexican government did not enforce its anti-corruption laws effectively, and officials frequently engaged in corrupt practices with impunity (Exh. 8, Tab E at 530), Thus, the Immigration Judge did not fully consider whether a public official would acquiesce in the torture of the respondent based on his affiliation with the as indicated by his gang-related tattoos) by the same gang or a rival gang, or by the drug cartels (Respondent’s Br. at 20~21, 27, 28-31). The Immigration Judge also did not sufficiently consider the respondent’s claim that he would more likely than not be tortured by the police or other Mexican authorities either because of his mental illness or because of his gang affiliation (Respondent’s Br. at 17, 19, 28-31). …
Hence, the respondent argues that he will likely be detained within the Mexican criminal justice system, which is not equipped to handle an individual with his mental illness and may result in his being subjected to abuse amounting to torture as a means of controlling his behavior (Respondent’s Br. at 17, 30~31; Exh, 10 at 5, 27). On remand, the Immigration Judge also shall make necessary findings of fact pertaining to this aspect of the respondent’s CAT claim.
For these reasons we reverse the Immigration Judge’s determination that the respondent did not establish that he more likely than not would be tortured if returned to Mexico. See 8 C.F.R. § 1003.1 (d)(3)(i). On remand, the parties shall have the opportunity to present further evidence regarding all aspects of the respondent’s application for deferral of removal under the CAT. Accordingly, the following orders will be entered. ORDER: The appeal is sustained. FURTHER ORDER: The record is remanded for further proceedings consistent with this opinion and for the entry of a new decision.” – Matter of E-M-, Sept. 5, 2014, unpub. [Hats off to Erica Schommer!]