Professional Documents
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Department of Justice
Name: C -M ,J M A -706
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
Cite as: J-M-C-M-, AXXX XXX 706 (BIA July 21, 2017)
U.S. Department of Justice
Name: C -M , J M A -706
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
APPEAL
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.
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)
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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
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)
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J M C -M
Respondent
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.
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2. Credibility
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.
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.
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corroborative evidence, particularly in regard to the probability of involuntary commitment to
a mental health institution or criminal justice facility if deported to Mexico.
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
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).
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
.
(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
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:
5 There are some exhibits submitted by the respondent which were later withdrawn. Those are
identified above in the documents list.
4
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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
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.
The Court's findings of relevant facts are based upon the testimony the
respondent's witnesses, and on the documentary evidence of record.
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.
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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.
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
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."
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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:
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).
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
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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
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.
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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
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:
FURTHER
ORDER: respondent is ordered removed to Mexico on the charge contained in the
Notice to Appear.
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.
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