BIA’S LATEST ON CAT DETACHED FROM REALITY – MATTER OF J-R-G-P, 27 I &N DEC. 482 (BIA 2018)

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

BIA HEADNOTE:

Where the evidence regarding an application for protection under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted and opened for signature Dec. 10, 1984, G.A. Res. 39/46, 39 U.N. GAOR Supp. No. 51, at 197, U.N. Doc. A/RES/39/708 (1984) (entered into force June 26, 1987; for the United States Apr. 18, 1988), plausibly establishes that abusive or squalid conditions

n pretrial detention facilities, prisons, or mental health institutions in the country of removal are the result of neglect, a 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.

PANEL: APPELLATE IMMIGRATION JUDGES GREER and WENDTLAND; CROSSETT, TEMPORARY APPELLATE IMMIGRATION JUDGE

OPINION BY: JUDGE ANNE GREER

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BIA’S LATEST ON CAT DETACHED FROM REALITY – MATTER OF J-R-G-P, 27 I &N DEC. 482 (BIA 2018)

• • • No dialogue, no dissent, on today’s BIA. And, yes, the reviewing courts have largely deferred to the BIA’s interpretation of “specific intent.” 
    • But, there are other plausible constructions that actually are more consistent with the purpose of the CAT to prevent the use of torture. In her dissenting opinion in Matter of J-E-, 23 I &N Dec. 291 (BIA 2002) my former colleague Judge Lory Diana Rosenberg set forth a “better view” (note, I also filed a vigorous separate dissenting opinion in J-E-):
      • “The majority’s reading of the regulations functionally converts the Senate understanding that torture must be specifically intended into a “specific intent” requirement. I disagree. I can find no basis to conclude that the Senate understanding was intended to require proof of an intent to accomplish a precise criminal act, as the majority contends is required. See Matter of J-E-, supra, at 301 (defining “specific intent”). Rather, the plain language of the text of 8 C.F.R. § 208.18(a)(5) reflects only that something more than an accidental consequence is necessary to establish the probability of torture. Id. (stating plainly that unanticipated or unintended pain and suffering that is severe enough to constitute torture is not covered). Moreover, 8 C.F.R. § 208.18(a)(4) states that a threat of infliction of severe physical pain or suffering may amount to torture.”
    • The J-R-G-P- opinion basically analogizes the intentionally pathetic efforts of the Mexican Government to deal with mental illness with the efforts of “poor countries like Haiti” at issue in Matter of J-E. 
      • But, Mexico is actually the 14^th largest economy in the world (11^th by consumer buying power); Haiti rates 141^st. It appears Mexico in fact has more than adequate resources to deal with mental illness; it has just intentionally chosen not to do so, even knowing the severe harm constituting torture that choice intentionally inflicts on individuals.
    • The opinion also minimizes the evidence of the intentionally torturous conditions that exist in the Mexican institutional mental health system.
      • From the 2017 State Department Country Report on Mexico: Among the numerous human rights abuses: “lethal violence and sexual assault against institutionalized persons with disabilities;”
      • Here’s how the same Country Report addresses the specifically horrible treatment of institutionalized individuals with disabilities: “Abuses in mental health institutions and care facilities, including those for children, were a problem. Abuses of persons with disabilities included lack of access to justice, the use of physical and chemical restraints, physical and sexual abuse, trafficking, forced labor, disappearances, and illegal adoption of institutionalized children. Institutionalized persons with disabilities often lacked adequate medical care and rehabilitation, privacy, and clothing and often ate, slept, and bathed in unhygienic conditions. They were vulnerable to abuse from staff members, other patients, or guests at facilities where there was inadequate supervision. Documentation supporting the person’s identity and origin was lacking, and there were instances of disappearances.
      • As of August 25, the NGO Disability Rights International (DRI) reported that most residents had been moved to other institutions from the privately run institution Casa Esperanza, where they were allegedly victims of pervasive sexual abuse by staff and, in some cases, human trafficking. Two of the victims died within the first six months after transfer to other facilities, and the third was sexually abused. DRI stated the victim was raped repeatedly during a period of seven months at the Fundacion PARLAS I.A.P. and that another woman was physically abused at an institution in another state to which she was transferred.
    • Here’s the “real skinny” on how Mexico intentionally scrimps on budget and tortures those institutionalized for mental health disabilities: “THE NIGHTMARE THAT IS MEXICO’S MENTAL HEALTH SYSTEM byAriel Jacoby from Medelita (https://www.medelita.com) | Thursday, Jan 21, 2016 tags: features (https://www.medelita.com/blog/category/features)health-feat-img.jpg&url=https://www.medelita.com/blog/the-nightmare-that-is-mexicos-mental– system/)
      • Though there are an estimated 10 million people with mental, visual, hearing or motor disabilities living in Mexico, the country’s mental health system is so dysfunctional that the unlucky patients under its care are colloquially referred to as “abandanodos (http://abcnews.go.com/Health/mexican-psychiatric-institution-hell/story?id=12267276)” – abandoned ones.
      • It’s an accurate description for these lost souls. A 93-page report from Disability Rights International (http://s3.amazonaws.com/nytdocs/docs/526/526.pdf) revealed the horrific living conditions at Mexican mental health facilities, which are a breeding ground for human rights violations and abuse of the handicapped patients that these institutions are meant to help. Many patients never received a clinical diagnosis of their condition and don’t have families to give them private care – these patients remain locked inside the hospitals indefinitely and become completely anonymous to the world.
      • Patients rock back and forth in urine soaked clothes or walk about soiled, feces-smeared floors without shoes. Bedsheets are an uncommon luxury; hygiene is an abstract concept in a Mexican mental hospital where some “patients and their caretakers could not fully explain how or why they were institutionalized” (New York Times (http://www.nytimes.com/2010/12/01/world/americas/01mexico.html)). Without proper oversight and the absence of any sort of registry system, it is not uncommon for mentally ill children to literally disappear from Mexican mental health facilities with no record of their name, age, or families.
      • In this dismal hole of human despair, atrocities are ubiquitous and plentiful (http://www.ipsnews.net/2011/01/appalling-conditions-in-mexicos-mental-health-institutions/). Many of the patients in these institutions have been detained against their will for years and will likely languish inside the walls of these torture chambers until their death. Psychotropic drugs are excessively relied upon to treat patients and the more aggressive patients who don’t respond to medication can be subject to forced lobotomies, which need only the approval of the facility director. Eric Rosenthal, the director of Disability Rights International, found that 1/4 of the mental health facilities were keeping patients in restraints for extended periods of time – an act that violates Article 1 of the United Nations convention against torture.

 

• • • • • The concept of human rights has no real meaning or significance in these unregulated, inhumane environments. The investigation conducted by DRI revealed the severity and frequency of human rights violations within the walls of such state-run facilities. In one institution, a terrified blind patient admitted to being raped by one of the staff members – a claim that was quickly dismissed  by Mexican officials. 
        • In another facility, investigators discovered two young women who had been institutionalized at a young age, grew up in the hospital, and had been working as unpaid laborers for years. There exists no record of how or why these women were institutionalized and Mexican law requires no legal review to detain them indefinitely as modern-day slave laborers.
        • The director of Samuel Ramirez Hospital, one of the 31 state-run mental health facilities in Mexico, calls his own hospital “hell” and has voiced his belief that the mental health of every patient at his facility have been made worse by their institutionalization. He blames the lack of proper funding and a deficiency of properly trained personnel – at a different mental institution nearby, there are only two psychologists and one doctor to treat the 365 patients who have been institutionalized there.
        • The sad state of Mexico’s mental health system can be traced back to its government’s complex and deep-rooted political issues. Mexico’s budget for mental health makes up about 2.5% of its overall health spending. This is an improvement from the paltry 1.6% allocated to mental health a decade ago, but still significantly lower than the WHO’s recommendation of 10%. Without a significant electorate of mental health advocates, mental health lacks any real political sway in Mexico. Back in 2006, Mexico was among 96 countries who ratified the United Nations Convention on the Rights of Persons with Disabilities (http://www.un.org/disabilities/default.asp? navid=13&pid=150). But it is clear that not much has changed within the system itself.

Bottom line: The BIA is using “legalese” to “normalize” sending an ill individual back to probable intentional torture in a “dismal hole of human despair.” After all, if being intentionally thrown in this kind of “torture chamber” by a country that has intentionally chosen to ignore, or in many cases aggravate, extreme human rights abuses, then who indeed could actually win protection under CAT? The message is clear — nobody! Use this case to deny ‘em all! Meet those quotas! Keep the assembly line moving!

Political officials of all Administrations have never been enthusiastic about complying with our international obligations under the CAT. Several Attorneys General, BIA Appellate Immigration Judges, and some Immigration Judges have found lots of creative ways to narrow the scope of protection, raise the standards of proof to near impossible levels, and to intentionally misconstrue country conditions against CAT applicants.

Undoubtedly, that gratifies and satisfies the desires of their political masters and handlers. Not surprisingly it comes as the Administration is denying access to asylum seekers and sending them into the CAT “reasonable fear” process.

What it doesn’t do is honestly live up to our solemn and binding international and human rights agreements, nor does it comply with Constitutional concepts of fundamental fairness and Due Process.

We need an independent U.S. Immigration Court System populated by Judges from diverse backgrounds with expertise in immigration and human rights laws, human empathy, and the courage and integrity to stand up for the full legal and human rights of the most vulnerable and endangered individuals in our legal system. Even when it could be “career threatening!”

PWS

11-16-18