[00:00:00] Speaker 02:
Good morning.

[00:00:03] Speaker 02:
My name is Katherine Kikefer.

[00:00:04] Speaker 02:
I'm court appointed pro bono counsel for the appellant, Mr. Garcia, and I would like to reserve three minutes for rebuttal.

[00:00:12] Speaker 03:
Go ahead, please.

[00:00:13] Speaker 03:
Thank you.

[00:00:14] Speaker 02:
In denying Mr. Garcia-Ellenes' petition for deferral of removal under the Convention Against Torture, the agencies disregarded highly probative and potentially dispositive evidence, including the credited testimony of Mr. Garcia-Ellenes' expert, Dr. Cook.

[00:00:31] Speaker 02:
The immigration judge's rejection of Dr. Cook's testimony on decompensation is completely divorced from her testimony regarding the pervasiveness of his mental health disorders and the extensive medical treatment that he requires.

[00:00:47] Speaker 02:
And the failure to address that testimony was legal error.

[00:00:50] Speaker 02:
And so for at least that reason, we would ask this court to remand the case to the agencies for further proceedings.

[00:00:58] Speaker 00:
Ms.

[00:00:58] Speaker 00:
Keecaffer.

[00:01:00] Speaker 00:
What about Dr. Cook's testimony is dispositive?

[00:01:04] Speaker 00:
I understand there's a matrix of factors here.

[00:01:07] Speaker 00:
And at least one of the things I've been trying to puzzle through is how we're supposed to break those down with respect to the question of decompensation.

[00:01:16] Speaker 02:
Yeah, I think we need to take a step back here.

[00:01:19] Speaker 02:
And Dr. Cook was the only expert to conduct a neuropsychiatric evaluation with behavioral observation.

[00:01:25] Speaker 02:
She was the only one.

[00:01:26] Speaker 02:
to meet with Mr. Garcia twice, she was the only expert to testify before the immigration judge.

[00:01:31] Speaker 02:
And so her testimony about his mental health, the pervasiveness of it, and the extensive medical care he requires goes unrebutted in the record.

[00:01:40] Speaker 00:
But those are just a flag.

[00:01:43] Speaker 00:
Those examinations were not done for the purposes of establishing whether he would decompensate in Mexico.

[00:01:50] Speaker 00:
For that, we only have the testimony.

[00:01:55] Speaker 00:
Of course, it's backed by the findings of there, but what about there is just positive?

[00:02:01] Speaker 00:
I guess if I can break this down a little bit more, right?

[00:02:03] Speaker 00:
We've got, I'm not sure whether it's one link or two in the chain, but we have some

[00:02:09] Speaker 00:
issues, some testimony about what the petitioner needs, structured environment, medical treatment, family support, regular employment, et cetera.

[00:02:25] Speaker 00:
But we don't have much, nothing in the testimony as far as I can tell, and for that matter, not much if anything in the agency's decisions that

[00:02:37] Speaker 00:
those would be things he would not have in Mexico.

[00:02:41] Speaker 00:
And so help me link that chain.

[00:02:42] Speaker 00:
What is dispositive about from Dr. Cook's testimony that would take us from both that he needs this and that he would not have it in Mexico?

[00:02:54] Speaker 02:
And so I think, you know, I would point to, you know, the agency said he wouldn't decompensate because they focused on he's not receiving medication and he hasn't been institutionalized before.

[00:03:06] Speaker 02:
But that's not, you know, it's unclear where that standard comes from and that's not the care that Dr. Cook said he requires.

[00:03:15] Speaker 02:
She said he needs consistent medical treatment and he needs

[00:03:18] Speaker 02:
that structure environment.

[00:03:19] Speaker 02:
And I would point you to the agencies actually recognize that Mr. Garcia-Yenis would have trouble obtaining medical care.

[00:03:28] Speaker 02:
And it is that access to medical care that helps stabilize him, particularly for his somatic symptom disorder.

[00:03:36] Speaker 02:
And so, you know, I think there are layers here.

[00:03:40] Speaker 02:
I agree.

[00:03:41] Speaker 02:
But, you know, he has a somatic symptom disorder.

[00:03:44] Speaker 02:
He requires consistent and regular access to medical care.

[00:03:48] Speaker 02:
amply reflected in the record with the voluminous medical records we have.

[00:03:52] Speaker 02:
And both agencies recognized he would not be able to access that medical care if he were in Mexico.

[00:03:58] Speaker 00:
Can you point me to where you're landing this finding that he would not get or would have trouble accessing medical care in the agency's decision?

[00:04:08] Speaker 02:
Yes.

[00:04:08] Speaker 02:
So they said at page 58 of the IJ's decision, you say, although accessing medical care in Mexico may present a challenge for respondents.

[00:04:18] Speaker 02:
They specifically say that.

[00:04:19] Speaker 02:
But then they say it's a lack of medications he's currently receiving would not result in decompensation.

[00:04:25] Speaker 02:
But that's not what Dr. Cook said would result in decompensation.

[00:04:31] Speaker 00:
OK.

[00:04:31] Speaker 00:
Thank you.

[00:04:32] Speaker 03:
Let me ask, if I look at the IJ, let's start with the IJ's decision, right?

[00:04:38] Speaker 03:
So from my understanding of your argument, it's more likely than not that he will not have family support, medical care, then it's more likely than not that he will then therefore decompensate.

[00:04:51] Speaker 03:
then it's more likely than not that he would then come to the attention of law enforcement, then it's more likely than not that the law enforcement would then forcibly institutionalize him, then it's more likely than not that he will then be harmed in one of those institutions, then it's more likely than not that that harm would constitute torture, right?

[00:05:07] Speaker 03:
That's your argument.

[00:05:10] Speaker 03:
Yes, but... Okay, so let me ask.

[00:05:13] Speaker 03:
If I look at the IJ's decision first, right, and I'm looking at ER 62,

[00:05:21] Speaker 03:
It does say, because the respondent cannot demonstrate a likelihood of even this first link in the hypothetical chain of events, the court concludes respondent's claim necessarily fails on every subsequent link, and he has not shown that each step in the hypothetical chain of events is more likely than not to occur.

[00:05:37] Speaker 03:
So that is where they're addressing step one, the decompensation, right?

[00:05:41] Speaker 03:
But then he has an entirely, if that was the only basis for the IJ's decision, why not just end the decision right there?

[00:05:49] Speaker 03:
But instead, there's this whole second paragraph that goes through all the country conditions evidence regarding the treatment of people who are in mental health facilities in Mexico.

[00:06:02] Speaker 03:
and ends with, as such, the court finds that the record demonstrates that some torture occurs against individuals in these institutions.

[00:06:09] Speaker 03:
Nonetheless, Respondent failed to demonstrate that he personally would be subject to such conditions on return to Mexico.

[00:06:15] Speaker 03:
And so if you look at the exhibits that the IJ cites, right, if you look at those exhibits, they say that

[00:06:25] Speaker 03:
For a population of 129.2 million inhabitants of Mexico, there are 39 psychiatric hospitals.

[00:06:32] Speaker 03:
So that's 3.3 million people per hospital.

[00:06:36] Speaker 03:
They say that in 2018, the Mexican government acknowledged that inhumane treatment occurred in five of the 38 psychiatric hospitals in the country.

[00:06:47] Speaker 03:
The Disability Rights International report examined 25 blacklist facilities, but found only eight

[00:06:56] Speaker 03:
had prolonged use of restraints, and only 10 had widespread indications of over-medication.

[00:07:01] Speaker 03:
So this is the record evidence that the IJ's opinion cites as to the numbers of how many hospitals are engaged in this conduct, which the IJ concedes could constitute torture.

[00:07:24] Speaker 03:
So I guess that's why I'm having a little bit of difficulty looking at that IJ decision.

[00:07:30] Speaker 03:
Why would you have that second paragraph?

[00:07:32] Speaker 03:
Why would you even cite country conditions evidence if you were only deciding the issue of decompensation and the first link in the chain of events?

[00:07:45] Speaker 02:
I would probably for completeness, you know, to hit all the issues the IJ is supposed to address.

[00:07:50] Speaker 03:
Right, but what are the other issues?

[00:07:51] Speaker 03:
Aren't the other issues where he would personally be tortured in a psychiatric facility in Mexico?

[00:07:57] Speaker 02:
Yes, and I would argue that.

[00:07:59] Speaker 03:
So is that a ruling then on that basis?

[00:08:01] Speaker 02:
I would say yes.

[00:08:04] Speaker 03:
Okay, so then there are two bases for the IJ's ruling.

[00:08:08] Speaker 03:
One was the first link in the chain, no decompensation, and then the last one is

[00:08:12] Speaker 03:
he personally hasn't demonstrated that it's more likely than not that he personally would be tortured.

[00:08:17] Speaker 02:
But I think those two are connected in that he has not shown that he would decompensate and end up in an institution and because of that he has not shown he would end up subject to these conditions.

[00:08:26] Speaker 03:
No, but why would you go through all the country conditions evidence about what is happening at mental health institutions in Mexico if you thought he was never going to be institutionalized?

[00:08:38] Speaker 03:
You would never have to even reach that discussion if you're just going to decide link one decompensation.

[00:08:48] Speaker 02:
I think the IJ would still need to address the other links because failure to address those links could then render it a... Right.

[00:08:55] Speaker 03:
So then he did issue a ruling on the last link of the chain, which is Mr. Garcia-Ianes has not shown that it is more likely than not that he would be tortured in a mental health institution in Mexico.

[00:09:09] Speaker 02:
Yes.

[00:09:09] Speaker 02:
And I would say that embedded in that decision is the understanding that he would not end up institutionalized.

[00:09:14] Speaker 02:
Because if you look at the same evidence,

[00:09:16] Speaker 02:
It shows that individuals who are difficult to control, who might get aggressive, which is the decompensation that Dr. Cook said Mr. Garcia, again, would experience, those individuals are subject to physical restraint, chemical restraint, and other forms of torture.

[00:09:33] Speaker 00:
But on that last point, there's no, I guess, trying to understand this.

[00:09:39] Speaker 00:
Seems like if you concede the point that there is a finding on the record that if he were institutionalized, he would not be tortured.

[00:09:50] Speaker 00:
There's no expert testimony on that.

[00:09:53] Speaker 00:
If there's substantial evidence of that, that's the end of the cat claim, is it not, if you concede that?

[00:10:00] Speaker 02:
The substantial evidence in the record on the country report shows that he would be subject to that torture.

[00:10:10] Speaker 00:
But you'd have to concede that as to that last link in the chain, we're just back in substantial evidence, right?

[00:10:15] Speaker 00:
There's no protection for dispositive and highly probative findings.

[00:10:20] Speaker 02:
Yeah, there's no expert testimony to that effect.

[00:10:22] Speaker 00:
So consider the country conditions report, which is enough.

[00:10:25] Speaker 00:
And so if the IJ reached that issue, why is that not the end of the claim?

[00:10:34] Speaker 00:
Why does that give away every other link you've been trying to establish before that?

[00:10:38] Speaker 02:
Because the evidence, that substantial evidence shows that he would be subject to such conditions.

[00:10:42] Speaker 03:
But how does it, if we're saying five out of 38 psychiatric hospitals?

[00:10:49] Speaker 03:
Eight out of 25?

[00:10:50] Speaker 03:
Like, where is the evidence that he is more likely than not going to be put in those specific five hospitals?

[00:10:58] Speaker 03:
I guess I'm having difficulty with that.

[00:11:04] Speaker 03:
that assumption there.

[00:11:05] Speaker 03:
I don't recall anything in Dr. Cook's testimony saying yes, and he will specifically, you know, is more likely to go into one of those facilities versus one of the others who have not been found even by the Disability Rights International Organization.

[00:11:21] Speaker 03:
to not engage in those practices.

[00:11:23] Speaker 02:
I would say the country reports show that it is more widespread than that.

[00:11:26] Speaker 02:
You know, at page 953, it said there's widespread torture at institutions across Mexico City.

[00:11:34] Speaker 02:
What is that number?

[00:11:36] Speaker 02:
This is at the record at 953.

[00:11:41] Speaker 02:
You know, at 989, they looked at 20 institutions in Mexico City and in the states of Jalisco, Mexico, Oaxaca, and Veracruz.

[00:11:49] Speaker 02:
You know, and where else have I got it?

[00:11:55] Speaker 03:
You know, at 1148, there's a 2020 article that highlights the... Okay, but 953 is the disability rights international organization that I have been quoting from.

[00:12:06] Speaker 03:
Yes.

[00:12:07] Speaker 03:
So, and I'm looking at 953, and that's actually where that eight number comes from.

[00:12:12] Speaker 03:
So, tell me, what's the specific language from this page that I should be looking at?

[00:12:20] Speaker 03:
Because it says that DRI conducted investigations into 22 institutions over 18 months from January 2014 to June 2015.

[00:12:31] Speaker 03:
And they said in eight of the institutions visited by DRI, we found prolonged use of restraints, which can amount to torture.

[00:12:39] Speaker 02:
Yes, and that is in Mexico City.

[00:12:41] Speaker 02:
And then if you look at 989, which is another DRI report,

[00:12:53] Speaker 02:
They visited 20 institutions in Mexico City in the states of Jalisco, Mexico, Oaxaca, Puebla, and Veracruz.

[00:13:02] Speaker 02:
And note that in most of these facilities, people are abandoned for their lifetimes and languish.

[00:13:09] Speaker 02:
So it's not just like eight institutions in Mexico City.

[00:13:12] Speaker 02:
There's evidence throughout the record of the pervasiveness across states of Mexico.

[00:13:19] Speaker 03:
That sounded like you said which states?

[00:13:22] Speaker 02:
These states.

[00:13:24] Speaker 03:
Jalisco, Guadalajara is located.

[00:13:26] Speaker 03:
What were the other ones?

[00:13:27] Speaker 02:
Mexico, Oaxaca, Puebla, and Veracruz.

[00:13:32] Speaker 03:
Okay.

[00:13:32] Speaker 03:
So where is the evidence that it's more likely than not that he's going to go to one of the institutions in those states?

[00:13:37] Speaker 03:
And I would say the state of, you're talking about Mexico City, right?

[00:13:42] Speaker 03:
When you're talking about the federal district of Mexico, that's Mexico City.

[00:13:45] Speaker 03:
I mean, where is the evidence that it's more likely than not that he's going to be put in one of those states?

[00:13:51] Speaker 03:
Jalisco, Veracruz.

[00:13:55] Speaker 02:
The record's a little unclear about where exactly he would be deported to.

[00:13:59] Speaker 02:
But he grew up in a town about an hour south of Mexico City, so that may be where he ended up.

[00:14:05] Speaker 02:
And again, the record shows that people are institutionalized, often indefinitely and involuntarily, simply for being homeless, for minor disabilities.

[00:14:18] Speaker 02:
Whereas here, I believe the record reflects, he has a very pervasive mental health disorder.

[00:14:23] Speaker 02:
I am mindful of my time, but... Ms.

[00:14:26] Speaker 00:
Kiekhaver, I guess I'd just suggest or ask if, at least my view, at a point in which

[00:14:34] Speaker 00:
We're going back and forth line by line in the record.

[00:14:38] Speaker 00:
If the standard is substantial evidence and it doesn't turn on the Cole-Castillo-Alaska standards for highly probative, we're at substantial evidence.

[00:14:50] Speaker 00:
And that's an area where usually courts are quite skeptical of arguments that we could reach a different conclusion than did the IJ.

[00:15:01] Speaker 00:
So I think that if the IJ

[00:15:04] Speaker 00:
If the agency decided this point, what I would take from that is that we're in substantial evidence and your arguments about Ms.

[00:15:13] Speaker 00:
Cook and these other cases are about Dr. Cook fall by the wayside.

[00:15:16] Speaker 00:
I'd like you to be able to confirm that on rebuttal perhaps.

[00:15:23] Speaker 03:
And I'll give you two minutes for rebuttal.

[00:15:24] Speaker 03:
I appreciate that.

[00:15:41] Speaker 01:
May it please the court, Colin Tucker for the Attorney General.

[00:15:44] Speaker 01:
There are two grounds for denying this petition for review.

[00:15:48] Speaker 01:
The first is that petitioner has waived review of the dispositive determination that he failed to show the harm, any harm he experiences in a Mexican mental health institution will be inflicted with the requisite specific intent.

[00:16:03] Speaker 01:
That is, if you will, the final link in the chain.

[00:16:05] Speaker 01:
The second is that petitioners fear of torture is premised on a belief that he will be institutionalized in Mexico, but the record does not compel the conclusion that he will be institutionalized if he returns to that country.

[00:16:15] Speaker 00:
On the first point, I guess as I'm trying to understand what the agency did in fact decide with respect to this last link,

[00:16:29] Speaker 00:
The government doesn't take the position, or didn't as far as I can tell in the briefs, that the problem with the last link was that he would not be located in one of the relatively few institutions where torture may occur.

[00:16:43] Speaker 00:
The government made this different argument about an establishment of specific intent.

[00:16:49] Speaker 00:
So I guess maybe you can walk me through where you're reading in the agency's findings.

[00:16:57] Speaker 00:
where you think the best place to land the failure of this last claim exists, because I didn't take any of our argument with your friend to revolve around the specific intent question at all.

[00:17:09] Speaker 00:
It was all around this.

[00:17:11] Speaker 00:
record-specific question about whether he would actually, in fact, be in one of those institutions.

[00:17:16] Speaker 00:
Where should we look?

[00:17:17] Speaker 00:
Where's the best place to look where the IJ did reach this issue?

[00:17:20] Speaker 01:
Sure, Your Honor.

[00:17:21] Speaker 01:
At page 56 of the immigration judge's decision, you have a statement that torture must be inflicted intentionally and a citation to the court's decision in viagas, which is arguably the seminal Ninth Circuit decision that discusses the specific intent requirement.

[00:17:34] Speaker 01:
From there, at page 62 of the immigration judge's decision, you have another citation to Viagas with the statement.

[00:17:42] Speaker 03:
Okay, but 56 is just laying out the standard, right?

[00:17:45] Speaker 03:
That's not the IJ's finding, is it?

[00:17:46] Speaker 01:
It's not, Your Honor, but the nature of the standard the immigration judge lays out sometimes can, you know, provide some indication of what the later rulings.

[00:17:55] Speaker 03:
I think that IJ's ruling is really more on page 62, and I don't see any ruling on specific intent here.

[00:18:02] Speaker 01:
Well, Your Honor, at page 62, you have the citation to Viagas again, which is against specific intent case law.

[00:18:08] Speaker 03:
And then you have the finding that even if some harm- I'm sorry, can you point to the specific language in here that is a specific intent ruling?

[00:18:16] Speaker 01:
Sure, Your Honor.

[00:18:16] Speaker 01:
You have the immigration judge's statement that even if some harm in Mexican institutions is inflicted, petitioner failed to show that he will be a victim of such harm.

[00:18:26] Speaker 00:
But is that not a discussion more to what we were exploring on the opening argument about whether he'd be put in that situation?

[00:18:38] Speaker 00:
Where should we look for the intent?

[00:18:42] Speaker 00:
Because that's about the harm to the petitioner.

[00:18:46] Speaker 00:
I understand your argument to be that the government actors lacked the intent, and I guess with Judge Koh, I'm struggling to find where the agency reached that so that we could even review it.

[00:19:00] Speaker 01:
Well, again, Your Honor, I've discussed the immigration judge's decision thus far.

[00:19:04] Speaker 01:
I think most tellingly at page four, you have the board's decision.

[00:19:07] Speaker 01:
which explicitly affirms petitioner failed to show he will be subjected to harm, quote, with the requisite specific intent.

[00:19:13] Speaker 01:
I don't think that can be read as anything other than finding, really, that petitioner failed to show the harm he fears will be inflicted.

[00:19:19] Speaker 00:
And what's the evidence that we should look to that supports that finding?

[00:19:25] Speaker 00:
Where is there substantial evidence anywhere in the record on that intent side of what's happening in the institutions?

[00:19:33] Speaker 01:
Well, as an initial matter, Your Honor, I don't want to, well, I was about to say I don't want to be argumentative.

[00:19:38] Speaker 00:
That's what we're here for.

[00:19:39] Speaker 01:
Go ahead.

[00:19:40] Speaker 01:
I would push back against the suggestion that the government has to identify substantial evidence that supports the decision here.

[00:19:45] Speaker 01:
I think substantial evidence standard requires petition to identify evidence that compels a contrary conclusion.

[00:19:50] Speaker 03:
Can I just tell you, I actually think that there is a contrary specific intent ruling in the IJ's decision.

[00:19:57] Speaker 03:
Because the IJ says while a lack of training, funding, or staffing may explain the inappropriate and damaging use of physical restraints, medication or surgery,

[00:20:07] Speaker 03:
These deficiencies cannot explain away the occurrence of rape, sexual assault, and physical harm committed against persons with disabilities in these institutions.

[00:20:16] Speaker 03:
So my understanding is that the agency below was, or I guess the government, was arguing, hey, if any of this torture happens in these mental health institutions in Mexico, it's because of lack of training.

[00:20:28] Speaker 03:
It's because of lack of funding.

[00:20:30] Speaker 03:
It's because of inadequate staffing.

[00:20:32] Speaker 03:
It's not because people have the specific intent to harm.

[00:20:34] Speaker 03:
And this IJ decision is explicitly rejecting that argument of the government.

[00:20:40] Speaker 03:
So to me, that's actually almost a specific intent ruling against you.

[00:20:46] Speaker 01:
Your Honor, the portion of the immigration judge's decision you're reading from, which I believe is also AR 62, the immigration judge goes on to state, as such the court finds, demonstrates, some torture occurs against individuals in these institutions.

[00:20:58] Speaker 01:
Nevertheless, Respondent failed to demonstrate that he personally will be subjected to this.

[00:21:02] Speaker 00:
But it's odd to describe, after reciting these things, that such conditions that the petitioner would experience include the intent of those who are imposing those conditions on them.

[00:21:15] Speaker 00:
It just seems like a very strange way for the IJ to have reached that issue.

[00:21:19] Speaker 01:
For me, Your Honor, I think it's understandable because the immigration judge wants to make clear that he's not completely disregarding the idea that these sorts of things happen.

[00:21:26] Speaker 00:
But the IJ has recited the standard and doesn't close the loop, at least in this paragraph.

[00:21:34] Speaker 00:
Again, there's no discussion.

[00:21:36] Speaker 00:
Of course, the overall standard for torture requires that intent, but the IJ here is not coming back and saying anywhere, as far as I can tell.

[00:21:46] Speaker 00:
Thus, the requisite specific intent is not there.

[00:21:51] Speaker 00:
The IJ is talking about the conditions, not the intent.

[00:21:54] Speaker 01:
Well, the conditions absent the intent are what makes for the IJ's finding, Your Honor.

[00:22:01] Speaker 01:
I don't think you can have a discussion of one without the other, particularly in the context here of the citation of Iagus.

[00:22:08] Speaker 03:
What would be the substantial evidence if we find that the IJ found and the BIA found that Mr. Garcia Inenez didn't demonstrate that he was more likely than not personally be subject to torture in Mexico?

[00:22:26] Speaker 01:
The substantial evidence in support of that finding, Your Honor?

[00:22:29] Speaker 01:
Yeah.

[00:22:29] Speaker 01:
I think would be the evidence that's discussed at page 62, that the country condition reports which address

[00:22:36] Speaker 01:
the show that harm along the lines necessary to make out a cat claim.

[00:22:41] Speaker 01:
It doesn't occur in a majority of the institutions in Mexico.

[00:22:45] Speaker 01:
And also the dearth of evidence suggesting that institutions where that harm may occur, that the petitioner will end up in them.

[00:22:56] Speaker 03:
What if we think that it's not clear whether the IJ and the BIA ruled on this alternative ground?

[00:23:03] Speaker 03:
Do we then remand back to the BIA to clarify whether it made one finding or two or?

[00:23:08] Speaker 01:
No, Your Honor, because we believe also that substantial evidence supports the immigration judge and the board's determination that the first link in the chain wasn't completed, if you will.

[00:23:17] Speaker 00:
But the substantial, is it, is not our substantial evidence standard of review

[00:23:26] Speaker 00:
Overlaid with the coal Castillo of Alaska's question of once the expert has put highly probative and dispositive Opinions or evidence on the table the IJ must Expressly consider them

[00:23:44] Speaker 01:
Sure, Your Honor.

[00:23:45] Speaker 01:
I think that those decisions are somewhat less dispositive than you've just framed them there.

[00:23:50] Speaker 01:
I know, for example, Castillo holds that where there is expert testimony, that testimony cannot be disregarded solely due to the lack of corroborating evidence that supports the expert's testimony.

[00:24:04] Speaker 00:
seems to suggest that there has to be some consideration of that evidence.

[00:24:22] Speaker 00:
seem to have in those other cases the wholesale rejection of an expert's theory as speculative.

[00:24:30] Speaker 00:
Instead, we have a, you know, according to petitioner's argument, a failure to consider, you know, maybe there are kind of five pieces that build that link in the chain, a lack of family support, social isolation, trouble finding employment,

[00:24:51] Speaker 00:
a lack of suitable medication and a lack of a structured environment, with particular emphasis on those last two pieces.

[00:25:02] Speaker 00:
I'd like your help in finding where the IJ talks about the medication, but as we know, Dr. Cook's opinion is not that we need any psychotropic medication here.

[00:25:13] Speaker 00:
We just need something to treat the headaches.

[00:25:16] Speaker 00:
So the question really about that lack of structure, I'm having trouble finding where the IJ addressed it, and I also see in other places the IJ seeming to address points that reflect a misunderstanding of Dr.

[00:25:29] Speaker 00:
Cook's theory or even of the petitioner's personal history.

[00:25:34] Speaker 00:
The condition here that's at issue has only happened since the petitioner's been in detention.

[00:25:40] Speaker 00:
And so whether the petitioner had a job or had family support or had whatever else going on before 2018 doesn't matter here.

[00:25:48] Speaker 00:
What matters is whether in, if he's removed,

[00:25:53] Speaker 00:
whether he'll decompensate.

[00:25:55] Speaker 00:
And Dr. Cook says he decompensates when he lacks structure and regular medical treatment.

[00:26:01] Speaker 00:
So where does the IJ address those pieces, particularly the structured environment piece, that he kind of feels safe in detention and that he may not have that in Mexico?

[00:26:13] Speaker 01:
Well, Your Honor, I think the IJ discusses Dr. Cook's testimony quite thoroughly, perhaps does not explicitly hit on each of the five things that you mentioned there.

[00:26:23] Speaker 01:
But I think overall the immigration judge's termination is that Dr. Cook's testimony here, as it must be, is inherently speculative.

[00:26:30] Speaker 01:
Because as you yourself noted, we have no evidence of how he would be with this condition.

[00:26:36] Speaker 00:
So what do we do here where an expert, let's assume that the expert has said, he needs this.

[00:26:46] Speaker 00:
And there's no evidence in the record of whether he will get this, let's say, structured environment in Mexico.

[00:26:54] Speaker 00:
Are we still in kind of the coal factors of where the district court has to consider all of those?

[00:27:00] Speaker 00:
Or is it back on the petitioner to establish something in the record that compels us to find that he would not get, say, a structured environment in Mexico?

[00:27:10] Speaker 01:
It would, I believe, be the second one, Your Honor.

[00:27:12] Speaker 01:
A petitioner at all times bears the burden of demonstrating eligibility for relief.

[00:27:15] Speaker 00:
But doesn't that undermine it if it's a central piece of the expert's opinion, even if the IJ kind of is able to dance around and talk about some of the other aspects of the expert's opinion?

[00:27:26] Speaker 00:
If the core of the expert's opinion is that the petitioner's psychological condition here is more subtle than something that can be dealt with with psychotropic as kind of environmental factors.

[00:27:41] Speaker 00:
And there's a suggestion that he's not going to get that.

[00:27:47] Speaker 00:
He needs a particular environment here.

[00:27:50] Speaker 00:
Why shouldn't the IJ have to consider that for us to know that the IJ really understands the theory that's being presented?

[00:27:56] Speaker 01:
Your Honor, I wouldn't agree that the immigration judge didn't consider it.

[00:27:59] Speaker 01:
I think the immigration judge simply found evidence that cuts against the expert's view of the decompensation here.

[00:28:05] Speaker 00:
Because of what?

[00:28:06] Speaker 00:
Because, Eda, where in the IJ's opinion do they discuss that the petitioner would have available a structured environment, for example, if he were removed?

[00:28:17] Speaker 01:
Your Honor, I don't know that structured environment specifically is noted.

[00:28:19] Speaker 00:
I think the immigration judges... Or regular medical, regular primary care, like he's been getting in detention.

[00:28:27] Speaker 01:
Of the nature that he's been getting in detention, Your Honor, I don't know that that's in there either.

[00:28:31] Speaker 00:
But doesn't Dr. Cook say that he needs both of those things to avoid decompensating?

[00:28:35] Speaker 01:
Dr. Cook said that the ideal course of treatment would be consistent medical care, Your Honor, yes.

[00:28:43] Speaker 00:
But if the IJ doesn't address those elements in the opinion, it seems like we've got a problem under

[00:28:50] Speaker 00:
Cole and Castillo have to consider them.

[00:28:53] Speaker 01:
The I.J.

[00:28:53] Speaker 01:
did look to other evidence in the record as far as his mental well-being is concerned, Your Honor.

[00:28:58] Speaker 01:
Much of that evidence granted was evidence of how he acts in detention.

[00:29:01] Speaker 01:
But I think the immigration judge is still permitted to draw some conclusion as to the severity of his condition based on that evidence.

[00:29:10] Speaker 03:
As you assume we find that the BIA and the I.J.

[00:29:13] Speaker 03:
denied relief on the ground that Garcia E. and Enes did not prove

[00:29:17] Speaker 03:
that he would more likely than not be personally tortured if he was institutionalized in Mexico.

[00:29:22] Speaker 03:
Did the petitioner waive that issue on appeal?

[00:29:25] Speaker 03:
Because the appeal seems to be focused almost exclusively on the first link in the chain that petitioner would decompensate, which would then lead to his institutionalization.

[00:29:35] Speaker 01:
That's the government's position, Your Honor.

[00:29:37] Speaker 01:
Yes, it's set forth at pages 17 to 19.

[00:29:40] Speaker 01:
I think the most telling

[00:29:41] Speaker 01:
aspect of the opening brief in that respect is at page 24 where the petitioners state that the issue is only whether he will be institutionalized upon being removed.

[00:29:49] Speaker 01:
There's no conclusion you can draw from that other than that the only argument that was focused on in the brief is that one.

[00:29:56] Speaker 01:
And no argument was made with respect to the nature of the harm he might experience in an institution, which is plainly a distinct question.

[00:30:04] Speaker 00:
But the argument you made was that the agency made a dispositive specific intent determination, which maybe comes through in the BIA opinion, but we haven't had much success finding in the IJ's opinion.

[00:30:21] Speaker 00:
So that's, I guess, the concern is whether it's waived or not.

[00:30:25] Speaker 00:
Your brief seems to address a different aspect of the

[00:30:30] Speaker 00:
conditions in an institution that Garcia Yiannis would be likely to face?

[00:30:35] Speaker 01:
I suppose, Your Honor, I have two responses to that.

[00:30:37] Speaker 01:
The first is that we've already sort of discussed the significant overlap there is between the conditions that he will face and whether those conditions are accompanied by the necessary specific intent.

[00:30:47] Speaker 01:
The second is that it's waver nonetheless on the petitioner's part.

[00:30:50] Speaker 01:
I guess that gets specifically to Judge Koh's question as to whether that issue was waived as well.

[00:30:55] Speaker 00:
Thank you, Mr. Tucker.

[00:30:57] Speaker 01:
If there's nothing else, I'm prepared to conclude.

[00:30:59] Speaker 03:
No further questions.

[00:31:00] Speaker 03:
Thank you.

[00:31:01] Speaker 01:
Further reasons stated in the brief and here today the government request the petition be denied.

[00:31:04] Speaker 01:
Thank you.

[00:31:06] Speaker 03:
Thank you.

[00:31:07] Speaker 03:
Two minutes for rebuttal.

[00:31:17] Speaker 02:
I want to address a couple points with respect to intent.

[00:31:20] Speaker 02:
The BIA actually found that there was specific intent.

[00:31:24] Speaker 02:
At page four of the BIA's brief, it said that the use of physical and chemical restraints as well as physical and sexual abuse that occurs in mental health institutions in Mexico

[00:31:34] Speaker 02:
constitutes torturous conduct imposed upon patients with the specific intent to inflict severe pain and suffering.

[00:31:41] Speaker 02:
And I cite this part of the BIA's opinion at pages 36 and 37 of my opening brief.

[00:31:48] Speaker 02:
So we did not dispute whether a specific intent

[00:31:52] Speaker 02:
Was had been decided or required because we were satisfied that the Bia and IJ had found that there would be the requisite specific attempt again cited with the with the IJ the Quotes that you raised a judge co in your discussion with my opposing counsel I would also note that you know my my opposing counsel has said that the

[00:32:16] Speaker 03:
agencies discussed dr. Cook's testimony wait a minute i'm sorry so if you're arguing that the ij and bia did decide specific intent but then you didn't address it in your opening brief then why isn't that a forfeiture or waiver so i do it pages 36 to 37 i highlight that they did find

[00:32:38] Speaker 02:
that this specific, these findings.

[00:32:42] Speaker 02:
And so I did not, you know, then further.

[00:32:45] Speaker 03:
I'm looking at 37 of your brief and it just says, the IJ recognized that individuals with minor and significant mental illnesses and disabilities were involuntarily hospitalized in Mexico and that conduct rising to the level of torture occurred in such institutions.

[00:33:02] Speaker 03:
I don't, I mean you do say the further,

[00:33:05] Speaker 03:
Anyway, I don't know specific intent.

[00:33:08] Speaker 03:
Well, go ahead.

[00:33:10] Speaker 02:
I would also just point to page 36, where I say the IJ and BIA recognize the evidence in the record reflected torture in mental health institutions, where I cite page four of the BIA's opinion.

[00:33:22] Speaker 02:
With respect to your question on substantial evidence, Judge Coe, you pointed to a page at 953 where they found eight institutions that used physical restraints.

[00:33:33] Speaker 02:
But if you look further in that same report at page 955,

[00:33:38] Speaker 02:
It discusses how 10 institutions use chemical restraints and over medication.

[00:33:43] Speaker 02:
At 956, it discusses lifetime segregations.

[00:33:47] Speaker 02:
At 959, it discusses sex trafficking and sex abuse.

[00:33:51] Speaker 02:
So that eight of the institutions is limited just to that particular form of torture.

[00:33:56] Speaker 02:
And there are other reports about how widespread it is.

[00:34:00] Speaker 02:
At 1170, we have a report where even the Mexican government has recognized widespread abuses in mental health institutions.

[00:34:08] Speaker 03:
Right, but the 10 is out of 25 blacklisted facilities.

[00:34:13] Speaker 03:
So I guess I'm still at the point of why is it more likely than not that Mr. Garcia-Ienez will not go to the other 15 institutions?

[00:34:22] Speaker 03:
Even if I agree with you, over-medication is 10, facilities prolonged use of restraints is 8,

[00:34:29] Speaker 03:
You still had the fact that Disability Rights International looked at 25 facilities.

[00:34:35] Speaker 02:
Well, it's more likely than not.

[00:34:36] Speaker 02:
So it's a more than 50% chance that he will be subject to torture.

[00:34:40] Speaker 03:
I'm sorry.

[00:34:41] Speaker 03:
10 out of 25 to me is not more than 50%.

[00:34:43] Speaker 03:
Neither is 8 out of 25.

[00:34:44] Speaker 03:
But 18 out of 25 would be.

[00:34:47] Speaker 00:
Ms.

[00:34:48] Speaker 00:
Kakavera, am I to take this then as a concession that the agency did in fact reach that last link in the chain and that if we find substantial evidence in the record for that, that's dispositive of the CAD claim?

[00:35:05] Speaker 02:
I would focus very much on the Dr. Cook's testimony.

[00:35:11] Speaker 00:
You focused on that.

[00:35:12] Speaker 00:
I think our problem is if the agency reached this last link in the chain, Dr. Cook's testimony is neither highly probative nor dispositive of that last link.

[00:35:22] Speaker 00:
and we do have record evidence that Judge Koh has gone through in some detail with you that provides that.

[00:35:28] Speaker 00:
If your view is also the government's view that they did reach this one way or the other, does that not

[00:35:39] Speaker 00:
I think we are... Avoid us needing to require that first link that is the basis of your argument.

[00:35:43] Speaker 02:
We have this very extensive opinion and then we have two very conclusory statements from the IJA.

[00:35:48] Speaker 00:
Is that enough?

[00:35:49] Speaker 02:
No, I don't think that's enough.

[00:35:51] Speaker 00:
Why not?

[00:35:52] Speaker 02:
Because the entire opinion to that point had been focused on whether or not he would end up in an institution.

[00:35:58] Speaker 02:
And then they recognize, yes, these institutions' torture can occur.

[00:36:02] Speaker 02:
And then when it concludes that, nonetheless, he can't demonstrate that he personally will be subject to such conditions, the immigration judge isn't citing anything in the record that Mr. Garcia-Ianes was relying on.

[00:36:14] Speaker 02:
And so I think embedded in that conclusion is the agency's conclusion that he would not be

[00:36:20] Speaker 02:
institutionalized.

[00:36:21] Speaker 00:
Meaning embedded in there it's a way of summarizing its conclusion as to the decompensation point that is the basis of your petition.

[00:36:29] Speaker 00:
Correct.

[00:36:32] Speaker 02:
If there are no further questions, we would ask this court to remand to the agencies for further proceedings.

[00:36:37] Speaker 02:
Thank you.

[00:36:38] Speaker 03:
Thank you very much.

[00:36:39] Speaker 03:
I want to thank all counsel for your very helpful arguments today.

[00:36:42] Speaker 03:
We are adjourned for today.

[00:36:44] Speaker 03:
And for our visitors, our law clerks will have a 30-minute Q&A with all of our visitors.

[00:36:52] Speaker 03:
And then Judge Johnstone and I will also then follow up with a Q&A with our visitors as well.

[00:36:57] Speaker 03:
OK.

[00:36:58] Speaker 03:
Thank you very much.