Abraham Bernez-Ibarra v. U.S. Attorney General

• Court: Court of Appeals for the Eleventh Circuit
• Decided: March 1, 2022
• Docket: 21-10279
• Status: Unpublished

Opinion

USCA11 Case: 21-10279 Date Filed: 03/01/2022 Page: 1 of 14

[DO NOT PUBLISH] In the United States Court of Appeals For the Eleventh Circuit

____________________

No. 21-10279 Non-Argument Calendar ____________________

ABRAHAM BERNEZ-IBARRA, Petitioner, versus U.S. ATTORNEY GENERAL,

Respondent.

Petition for Review of a Decision of the Board of Immigration Appeals Agency No. A206-349-604 ____________________ USCA11 Case: 21-10279 Date Filed: 03/01/2022 Page: 2 of 14

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Before ROSENBAUM, GRANT, and EDMONDSON, Circuit Judges.

PER CURIAM:

Abraham Bernez-Ibarra (“Petitioner”), a native and citizen of Mexico, petitions for review of a final order by the Board of Im- migration Appeals (“BIA”). The BIA affirmed the Immigration Judge’s (“IJ’s”) denial of Petitioner’s applications for withholding of removal under the Immigration and Nationality Act (“INA”) and for relief under the United Nations Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punish- ment (“CAT”). No reversible error has been shown; we deny the petition.

I. Background

Petitioner entered the United States as an infant in 1989. In 2019, the Department of Homeland Security charged Petitioner as removable. Petitioner filed an application for withholding of re- moval and for protection under CAT. 1

1 Petitioner also applied for asylum but later conceded that he was ineligible. USCA11 Case: 21-10279 Date Filed: 03/01/2022 Page: 3 of 14

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In pertinent part, Petitioner said he feared he would be tar- geted for torture upon his return to Mexico based on (1) his schiz- ophrenia and history of mental illness and (2) his former gang affil- iation and visible gang-related tattoos. 2 About mental illness, Pe- titioner asserted that patients in mental-health facilities in Mexico are subjected to poor conditions and to abuse rising to the level of torture. Petitioner said the Mexican government allows the poor conditions and abuse to persist and, thus, is complicit in the torture of people with mental illnesses. Petitioner also asserted that his gang tattoos made him readily identifiable as a person affiliated with a United States gang: characteristics that would make him vul- nerable to being kidnapped and tortured by Mexican gang mem- bers and by the Mexican police. The IJ denied Petitioner’s application for relief. The IJ deter- mined that Petitioner’s prior California conviction for first-degree residential robbery constituted a “particularly serious crime” within the meaning of 8 U.S.C. § 1231(b)(3)(B)(ii). The IJ thus con- cluded that Petitioner was ineligible for withholding of removal under the INA and under CAT.

2 Petitioner -- a former member of a gang known as the Fresno Bulldogs -- has these tattoos: (1) a big dog paw on his chest; (2) a “C” on his right shoulder and on the middle of his chest; (3) two small dog paws on his left leg; (4) two small dog paws on his neck; (5) an “E” on his right shin; (6) an “S” on his left shin; (7) a “BD” on his right calf; (8) a little “BDS” on his right hand; and (9) an “ES” on his left hand. USCA11 Case: 21-10279 Date Filed: 03/01/2022 Page: 4 of 14

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The IJ next determined whether Petitioner was eligible for deferral of removal under CAT. In addressing Petitioner’s claim that he would be targeted because of his mental-health issues, the IJ noted that Petitioner’s case was similar to the circumstances pre- sented in the BIA’s decision in Matter of J-R-G-P-, 27 I. & N. Dec. 482 (BIA 2018). In that case, the applicant asserted that his mental- health issues made it more-likely-than-not that he would be impris- oned or committed to a mental-health facility if returned to Mex- ico: facilities in which he would be tortured by law enforcement officials or mental-health workers. 27 I. & N. Dec. at 483. There, in denying CAT relief, the BIA determined that the substandard conditions in Mexico’s mental-health facilities, pretrial detention centers, and prisons were the result of neglect, a lack of resources, and of insufficient training and education -- not a specific intent “to inflict severe physical or mental pain or suffering.” Id. at 486-87. Here, the IJ acknowledged Petitioner’s schizophrenia diag- nosis and history of mental-health issues. The IJ also observed, however, that Petitioner -- who was unmedicated during his 2020 individual merits hearing -- had exhibited no “evident mental health issues” while in court. The IJ noted that Petitioner had last been hospitalized involuntarily in 2016 and that Petitioner was no longer addicted to methamphetamine. In the light of this evidence, the IJ found an insufficient likelihood that Petitioner’s mental health would attract the notice of the Mexican authorities or that Petitioner would be arrested, imprisoned, or committed involun- tarily to a mental-health facility in Mexico. USCA11 Case: 21-10279 Date Filed: 03/01/2022 Page: 5 of 14

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The IJ then discussed the country condition reports describ- ing the poor conditions and prevalence of abuse within Mexico’s mental-health facilities. The IJ determined, however (as the BIA did in Matter of J-R-G-P-), that the poor conditions at these facilities were “the result of neglect, a lack of resources, or insufficient train- ing and education, not due to a specific intent to inflict severe pain or suffering.” The IJ thus found insufficient evidence establishing that the Mexican government had the specific intent to torture its mentally ill citizens. The IJ next considered Petitioner’s asserted fear about being tortured based on his prior gang membership and his visible gang tattoos. The IJ expressed concern about the gang violence in Mex- ico. Nevertheless, the IJ determined that “broad characterizations” about the country conditions in Mexico were insufficient to demonstrate that Petitioner personally would be tortured. The IJ found it “speculative” that Mexican authorities or gangs would identify Petitioner’s gang tattoos: tattoos specific to a local gang in Fresno, California with no ties to Mexico. The IJ also found it “speculative” that the Mexican authorities or gangs would seek to harm Petitioner based upon his past involvement in a U.S.-based gang with no Mexican affiliation or rivalry. Finally, the IJ found “wholly unsupported by the evidence” Petitioner’s assertion about the Mexican government’s involvement in, or acquiescence to, such gang violence. The IJ concluded that Petitioner had failed to show that it was more-likely-than-not that he would be tortured USCA11 Case: 21-10279 Date Filed: 03/01/2022 Page: 6 of 14

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upon his return to Mexico and, thus, denied Petitioner deferral of removal under CAT. The BIA adopted and affirmed the IJ’s decision.

II. Discussion

We review only the decision of the BIA, except to the extent that the BIA adopts expressly the IJ’s decision. See Gonzalez v. U.S. Att’y Gen., 820 F.3d 399, 403 (11th Cir. 2016). Because the BIA adopted expressly the IJ’s decision in this case, we review both de- cisions. See id. We review de novo legal questions. See Lukaj v. U.S. Att’y Gen., 953 F.3d 1305, 1311 (11th Cir. 2020). We review administra- tive fact findings under the “highly deferential substantial evidence test” whereby we “must affirm the BIA’s decision if it is ‘supported by reasonable, substantial, and probative evidence on the record considered as a whole.’” See Adefemi v. Ashcroft, 386 F.3d 1022, 1026-27 (11th Cir. 2004) (en banc). We “view the record evidence in the light most favorable to the agency’s decision and draw all reasonable inferences in favor of that decision.” Id. at 1027. To reverse a fact finding, we must conclude “that the record not only supports reversal, but compels it.” See Mendoza v. U.S. Att’y Gen., 327 F.3d 1283, 1287 (11th Cir. 2003). USCA11 Case: 21-10279 Date Filed: 03/01/2022 Page: 7 of 14

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A. Withholding of Removal

On appeal, Petitioner challenges the BIA’s and the IJ’s deter- mination that his California conviction for first-degree residential robbery -- in violation of California Penal Code § 211 -- qualified as a “particularly serious crime” under the INA. A non-citizen is ineligible for withholding of removal if the Attorney General decides that the non-citizen has been convicted of a “particularly serious crime.” See 8 U.S.C. § 1231(b)(3)(B)(ii). By statute, an aggravated felony for which a non-citizen has been sentenced to at least five years “shall” be considered a “particularly serious crime.” Id. § 1231(b)(3)(B). Here, Petitioner’s California residential-robbery conviction resulted in a sentence of three years’ imprisonment and, thus, is no per se “particularly serious crime.” Notwithstanding the length of the sentence imposed, however, “the Attorney General retains discretion to determine on a case-by- case basis whether the offense constitutes a particularly serious crime.” Id. § 1231(b)(3)(B); Lapaix v. U.S. Att’y Gen., 605 F.3d 1138, 1143 (11th Cir. 2010). In determining whether an offense qualifies as a “particu- larly serious crime,” the IJ may rely on the statutory elements of the offense as well as on additional evidence about the nature of the conviction, the circumstances and facts underlying the convic- tion, and on the type of sentence imposed. See In re N-A-M-, 24 I. & N. Dec. 336, 342 (BIA 2007). If “the elements of the offense are USCA11 Case: 21-10279 Date Filed: 03/01/2022 Page: 8 of 14

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examined and found to potentially bring the offense within the am- bit of a particularly serious crime, all reliable information may be considered in making a particularly serious crime determination, including the conviction records and sentencing information.” Id. On other hand, if the elements of the offense would not bring the crime potentially into the particularly-serious-crime category, “the individual facts and circumstances of the offense are of no conse- quence.” Id. The BIA and the IJ committed no error in determining that Petitioner’s state residential-robbery conviction constituted a “par- ticularly serious crime.” Under California law, residential robbery means “the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear.” Cal. Penal Code § 211. Based on these statutory elements, the BIA and the IJ con- cluded reasonably that Petitioner’s residential-robbery offense con- stituted a crime against a person: the kind of crime the BIA has said is “more likely to be categorized as particularly serious.” See In re N-A-M-, 24 I. & N. Dec. at 343. Having concluded that the ele- ments of Petitioner’s offense brought the offense “within the ambit of a particularly serious crime,” the BIA and the IJ were entitled to consider the circumstances and facts underlying Petitioner’s of- fense -- including Petitioner’s use of a knife during the commission of the offense -- in making a determination about seriousness. See id. at 342; Lapaix, 605 F.3d at 1143. USCA11 Case: 21-10279 Date Filed: 03/01/2022 Page: 9 of 14

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Given the record in this case, the BIA and the IJ committed no error in determining that Petitioner’s California residential-rob- bery offense constituted a “particularly serious crime” that ren- dered Petitioner ineligible for withholding of removal under both the INA and under CAT.

B. Deferral of Removal Under CAT

A non-citizen convicted of a particularly serious crime (and thus ineligible for withholding of removal under CAT) may still be eligible for deferral of removal under CAT. See 8 C.F.R. § 1208.17(a). To establish eligibility for CAT relief, an applicant must show “that it is more likely than not that he or she would be tor- tured if removed to the proposed country of removal.” See 8 C.R.F. § 1208.16(c)(2); Reyes-Sanchez v. U.S. Att’y Gen., 369 F.3d 1239, 1242 (11th Cir. 2004). The applicant must also show that the torture would be “inflicted by or at the instigation of, or with the consent or acquiescence of, a public official acting in an official ca- pacity or other person acting in an official capacity.” 8 C.F.R. § 1208.18(a)(1). “Acquiescence requires that the public official, prior to the activity constituting torture, have awareness of such activity and thereafter breach his or her legal responsibility to intervene to prevent such activity.” Reyes-Sanchez, 369 F.3d at 1242 (quota- tions omitted). “[T]o constitute torture, an act must be specifically USCA11 Case: 21-10279 Date Filed: 03/01/2022 Page: 10 of 14

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intended to inflict severe physical or mental pain or suffering.” 8 C.F.R. § 1208.18(a)(5). Substantial evidence supports the BIA’s and the IJ’s determi- nation that Petitioner failed to show that he more-likely-than-not would be tortured by, or with the acquiescence of, the Mexican government.

1. Mental Health

About Petitioner’s mental health, the record supports the BIA’s and the IJ’s determination that Petitioner had shown an in- sufficient likelihood that he would be arrested, imprisoned, or in- voluntarily committed or otherwise come to the attention of Mex- ican authorities based on his mental-health issues. Contrary to Pe- titioner’s argument on appeal, the IJ considered expressly Peti- tioner’s schizophrenia diagnosis, Petitioner’s history of mental- health issues, and Petitioner’s mental- health records. About Peti- tioner’s current mental-health status, the IJ noted that, even with- out medication, Petitioner exhibited no obvious mental-health is- sues while in court. In addition, Petitioner’s last involuntary hos- pitalization was four years earlier, and Petitioner was no longer ad- dicted to methamphetamine: a factor Petitioner speculated might have contributed to his mental-health issues. On appeal, Petitioner asserts that the BIA and the IJ failed to consider adequately Petitioner’s complete mental-health history, USCA11 Case: 21-10279 Date Filed: 03/01/2022 Page: 11 of 14

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including Petitioner’s attempted suicide in 2017, substance-abuse issues in 2018, and Petitioner’s “mental breakdown” in 2019. We have stressed that, although the IJ and the BIA must consider all evidence submitted by a petitioner, the IJ and the BIA -- in render- ing a decision -- “need not address specifically each claim the peti- tioner made or each piece of evidence the petitioner presented.” See Indrawati v. U.S. Att’y Gen., 779 F.3d 1284, 1302 (11th Cir. 2015). Nor do these examples of Petitioner’s past mental-health issues compel the conclusion that Petitioner’s current mental- health status would more-likely-than-not cause him to be arrested or committed involuntarily in Mexico. The record also supports the BIA’s and the IJ’s determina- tion that insufficient evidence exists establishing that the substand- ard conditions in Mexico’s mental-health facilities are the product of a specific intent by the government to torture persons with men- tal illness. The BIA has said that substandard conditions caused by mere negligence or a lack of resources do not constitute “torture” for purposes of CAT. See Matter of J-R-G-P-, 27 I. & N. Dec. at 484; Matter of J-E-, 23 I. & N. Dec. 291, 299, 301 (BIA 2002). Thus, CAT relief may be denied properly when the evidence “plausibly estab- lishes that abusive or squalid conditions in pretrial detention facili- ties, 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.” See Matter of J-R-G-P-, 27 I. & N. Dec. at 485-86. USCA11 Case: 21-10279 Date Filed: 03/01/2022 Page: 12 of 14

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Here, the record includes documents attributing the sub- standard conditions in Mexico’s mental-health facilities to factors such as negligence, the absence of community-based support, a lack of other rehabilitation options, and an outdated understanding of best practices. The record also evidences that the Mexican gov- ernment has proposed legislation purported to increase access to mental-health care and to improve mental-health services. Mexi- can law also prohibits discrimination against persons with mental disabilities. This evidence of the Mexican government’s attempts to improve its mental-health care system -- even if not yet effective -- supports the BIA’s and the IJ’s finding that the Mexican govern- ment has not created or maintained substandard conditions in its mental-health facilities for the specific purpose of torturing patients with mental illnesses. 3

3 On appeal, Petitioner contends that to demonstrate a specific intent on the part of the Mexican government to torture the mentally ill is unnecessary. Pe- titioner contends that the BIA and the IJ erred in failing to consider, instead, the intent of the private mental-health care workers: private actors who Peti- tioner says torture patients with the acquiescence of the Mexican government. Petitioner never presented adequately this argument before the IJ or the BIA. We will not address an argument raised for the first time on appeal. See Amaya-Artunduaga v. U.S. Att’y Gen., 463 F.3d 1247, 1250 (11th Cir. 2006) (“We lack jurisdiction to consider a claim raised in a petition for review unless the petitioner has exhausted his administrative remedies with respect thereto.”). USCA11 Case: 21-10279 Date Filed: 03/01/2022 Page: 13 of 14

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2. Gang Membership & Gang Tattoos

Substantial evidence also supports the BIA’s and the IJ’s find- ing that Petitioner failed to demonstrate a sufficient likelihood that he would be tortured by, or with the acquiescence of, the Mexican government -- torture based on his prior gang membership and his visible gang tattoos. On appeal, Petitioner contends that the BIA and the IJ failed to consider adequately the testimony of Petitioner’s expert witness (Dr. Slack) about the likelihood that Petitioner’s personal circum- stances would make him a target for torture by Mexican gang members. Among other things, Dr. Slack testified about the “par- anoia” and “vigilance” Mexican gangs often exercise in monitoring “new arrivals” and in identifying potential rival gang members. Dr. Slack also opined that Petitioner’s visible tattoos and non-native Spanish would be factors that would attract attention and would put Petitioner at risk of harm. The IJ acknowledged Petitioner’s evidence -- including Dr. Slack’s testimony -- that Petitioner was “at some risk of harm from gangs and criminals.” But the IJ found Dr. Slack’s “general asser- tions” based on “broad characterizations of the current country conditions” insufficient to demonstrate that Petitioner personally would more-likely-than-not be tortured. After considering Dr. Slack’s testimony, the IJ found it “speculative” that the Mexican gangs would recognize Petitioner’s tattoos as gang-related and found it “speculative” that Petitioner would be harmed based on USCA11 Case: 21-10279 Date Filed: 03/01/2022 Page: 14 of 14

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his prior membership in a non-rival gang with no Mexican affilia- tion. That Petitioner disagrees with the weight given to Dr. Slack’s testimony -- by itself -- demonstrates no error. See Lin- geswaran v. U.S. Att’y Gen., 969 F.3d 1278, 1292 (11th Cir. 2020) (explaining that “[a]lthough IJs are obligated to consider an appli- cant’s documentary evidence, they are under no obligation to credit it or assign it decisive weight.” (quotations and alteration omitted)). Moreover, Petitioner has identified no evidence that would compel the conclusion that the feared gang violence would be committed with the consent or acquiescence of the Mexican government. In these kinds of cases, the standards for review are particu- larly important. The IJ’s and the BIA’s decision that Petitioner was unentitled to withholding or removal or to CAT relief is supported by reasonable, substantial, and probative evidence. Nothing on this record compels us to reverse that decision. PETITION DENIED.