Lopez Bartolo v. Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: January 6, 2025
• Docket: 23-1578
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JAN 6 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

FRANCISCO LOPEZ BARTOLO, No. 23-1578 Agency No. Petitioner, A218-146-518 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals

Argued and Submitted August 16, 2024 San Francisco, California

Before: TASHIMA, CALLAHAN, and KOH, Circuit Judges.

Petitioner Francisco Lopez Bartolo, a native and citizen of Mexico, petitions

for review of the Board of Immigration Appeals’ (“BIA”) order dismissing his

appeal from an Immigration Judge’s (“IJ”) decision denying his application for

withholding of removal and relief under the Convention Against Torture (“CAT”).1

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. 1 Petitioner claims that he applied for asylum, but his I-589 stated that he was “not arguing eligibility for asylum.” The IJ thus analyzed Petitioner’s claims for We have jurisdiction under 8 U.S.C. § 1252 and deny the petition.

1. Petitioner was convicted of voluntary manslaughter under California

Penal Code § 192(a), for which he was sentenced to three years’ imprisonment,

and attempting to dissuade a witness by threat of force under California Penal

Code § 136.1(c)(1), for which he was sentenced to two years’ imprisonment. His

sentence was enhanced by ten years under California’s mandatory gang

enhancement, California Penal Code § 186.22(b)(1)(c). The IJ concluded that

Petitioner was convicted of a “particularly serious crime” and thus ineligible for

withholding of removal. See 8 U.S.C. § 1231(b)(3)(B)(ii). The BIA agreed,

“considering the totality of the circumstances, and for the reasons discussed by the

Immigration Judge.” Whether an offense constitutes a “particularly serious crime”

is reviewed for abuse of discretion, and “[u]nder that standard, we are limited to

ensuring that the agency relied on the appropriate factors and proper evidence, and

we may not reweigh the evidence and reach our own determination about the

crime’s seriousness.” Hernandez v. Garland, 52 F.4th 757, 765 (9th Cir. 2022)

(internal quotations omitted).

only withholding of removal and CAT relief. The final page of the IJ’s order stating that it was denying Petitioner’s “application for asylum,” and the BIA’s statement that the IJ denied Petitioner’s “application[] for asylum,” appear to have been made in error and do not affect the nature of Petitioner’s appeal. In any event, our determination that Petitioner is ineligible for withholding of removal applies equally to any claim for asylum. See 8 U.S.C. §§ 1158(b)(2)(A)(ii); 1231(b)(3)(B)(ii).

2 Petitioner argues that the BIA erred by not considering evidence of his

mental state at the time he committed the voluntary manslaughter. Because the

BIA’s decision relied on “the reasons discussed by the Immigration Judge,”

however, we review both the BIA’s decision and the “IJ’s decision to the extent

incorporated.” Medina-Lara v. Holder, 771 F.3d 1106, 1111 (9th Cir. 2014);

Aguilar-Ramos v. Holder, 594 6 F.3d 701, 704 (9th Cir. 2010). And here, the IJ

did consider petitioner’s mental health, concluding that there was “little

information as to what impact the mental health or disorder, if it existed at the

time, was implicated.” The BIA similarly noted that Petitioner did “not point to

any facts in the record before the Immigration Judge that relate to his mental health

at the time he committed the crime that could potentially change the analysis.”

Further, while Petitioner’s prison health records include assessments of when and

how his mental health issues first developed, those records also state that

Petitioner’s “symptoms began on (01/17/20),” which is years after he committed

the voluntary manslaughter in 2012. We conclude that the BIA and IJ

(collectively, “agency”) properly considered Petitioner’s mental health at the time

he committed voluntary manslaughter.

Petitioner next argues that the agency misapplied the “Frentescu factors” by

considering his ten-year gang enhancement and by noting that he entered a plea

after initially being charged with murder. But “nothing in the language of the

3 ‘particularly serious crime’ provisions in the INA limits the scope of permissible

evidence,” Anaya-Ortiz v. Holder, 594 F.3d 673, 678 (9th Cir. 2010), and the

agency may properly consider sentencing enhancements in applying the Frentescu

factors. See Konou v. Holder, 750 F.3d 1120, 1128 (9th Cir. 2014). Further, while

the IJ “note[d]” that Petitioner entered a plea after being charged with murder, the

BIA did not incorporate this portion of the IJ’s decision. See Medina-Lara, 771

F.3d at 1111. However, even if it did, the agency may consider “all reliable

information . . . including the conviction records and sentencing information, as

well as other information outside the confines of a record of conviction,” Anaya-

Ortiz, 594 F.3d at 678, and there is no indication that the agency relied on

Petitioner’s murder charge to “trump” the crime to which Petitioner plead guilty.

Cf. Chang v. INS, 307 F.3d 1185, 1192 (9th Cir. 2002).

Petitioner finally argues that, notwithstanding the agency’s determination

that he was convicted of a particularly serious crime, the agency’s failure to

consider whether he would be a danger to the community “contravenes the plain

text of the INA.” Petitioner also argues and that this court’s “theory and

reasoning” in Ramirez-Ramos v. INS, 814 F.2d 1394, 1397 (9th Cir. 1987), which

found the agency’s interpretation of the statutory language in 8 U.S.C.

§ 1231(b)(3)(B)(ii) “reasonable,” is “clearly irreconcilable” with Loper Bright

Enterprises v. Raimondo, 144 S. Ct. 2244 (2024). See Miller v. Gammie, 335 F.3d

4 889, 900 (9th Cir. 2003) (en banc).

As a three-judge panel, we are bound by the holding in Ramirez-Ramos that

no present dangerousness finding is required unless Loper Bright “undercut the

theory or reasoning underlying [Ramirez-Ramos] in such a way that the cases are

clearly irreconcilable.” Gammie, 335 F.3d at 900. In Loper Bright, the Supreme

Court made clear that it did “not call into question prior cases that relied on the

Chevron framework,” such as Ramirez-Ramos, and that “[t]he holdings of those

cases that specific agency actions are lawful . . . are subject to statutory stare

decisis.” 144 S. Ct. at 2273. In light of this clear directive, we hold that Ramirez-

Ramos “remains precedential authority which binds us.” See Lopez v. Garland,

116 F.4th 1032, 1045 (9th Cir. 2024). Ramirez-Ramos is not “clearly

irreconcilable” with Loper Bright, see Gammie, 335 F.3d at 900, and the agency

correctly determined that Petitioner is ineligible for withholding of removal.

2. Substantial evidence supports the agency’s conclusion that mental

health workers in Mexican psychiatric hospitals do not have the “specific intent” to

commit torture through the use of Electro Convulsive Therapy (“ECT”), forced

restraint, or isolation. The IJ found that the use of ECT, forced restraint, or

isolation at state-run psychiatric institutions was “to modify the behavior” of

patients and “not necessarily to specifically impose severe pain or suffering.” In

support, the IJ relied on Petitioner’s expert who testified that “she did not know the

5 motivations” of the mental health workers, and that there was no evidence that

Mexican mental health reforms were “being done for a cynical purpose or with an

intent to harm individuals.” The BIA then found that, even assuming Petitioner

would be institutionalized and “exposed to deplorable, squalid, and even abusive

conditions, there is no clear error in the Immigration Judge’s finding that these

conditions are the result of failed attempts at reform and the difficulty of allocating

scarce resources, and are not specifically intended to inflict torture on mental

health patients or prisoners.”

Petitioner argues that the BIA erred in applying a clear error standard of

review because the agency accepted the factual premise that mental health

workers’ intent was to modify patient behavior, and “not to provide medical care.”

But modifying patient behavior is not categorically at odds with providing medical

care, and “[w]hether government officials act with specific intent to inflict severe

pain or suffering is a question of fact that is subject to clear error review.” Guerra

v. Barr, 974 F.3d 909, 913 (9th Cir. 2020). It was therefore a question of fact for

the IJ whether Mexican mental health workers use certain treatments to modify

patient behavior for the patient’s health and wellbeing or for the “specific intent to

inflict severe pain or suffering.” The IJ found that the mental health workers

sought to modify patient behavior without the requisite “specific intent” for torture,

and the BIA properly applied clear error review to this factual finding.

6 Petitioner also argues that the use of ECT, restraints, and isolation for

behavior modification per se constitutes torture. According to Petitioner, “[n]o

published data considers behavior modification an acceptable use of ECT, nor did

the IJ find that it was being used for the potentially appropriate purpose of medical

treatment.” However, Petitioner’s expert acknowledged that ECT can be a

“legitimate form of psychiatric treatment,” and a 2015 Disability Rights

International report in the record explained that some psychiatrists view the use of

ECT as “a treatment that can save lives.” Thus, the IJ rejected Petitioner’s

contention that ECT was being used with a nefarious intent to harm.

Further, Petitioner argues that “behavior modification” necessarily

constitutes a proscribed purpose because it involves “coercing,” “punishing,” and

“intimidating” mental health patients. But modifying a person’s behavior does not

always involve “coercing,” “punishing,” or “intimidating” that individual. The

BIA noted that while behavior modification may be considered a proscribed

purpose, Petitioner pointed to “no evidence in the record” establishing that the

behavior modification practices here are done for any proscribed purpose.2

2 For similar reasons, Petitioner’s reliance on Iglesias-Iglesias, a non- precedential decision, is unpersuasive because the agency in that case found that mental health workers restrained patients “for fun” and employed shock therapy “as punishment.” Iglesias-Iglesias v. Garland, No. 20-70650, 2022 WL 898597, at *3 (9th Cir. 2022). The agency here found that mental health workers did not have a similarly proscribed intent.

7 3. Petitioner’s remaining arguments also fail. Petitioner argues that the

BIA “absolved” the IJ of the need to address the possibility of his risk of torture in

anexos,3 but the BIA correctly explained that the IJ was not obligated to

“specifically and in detail address” this possibility, especially where the IJ cited a

country conditions report containing evidence of anexos, and explicitly stated that

he had “considered all of the evidence” in the record. See Garcia v. Holder, 749

F.3d 785, 791–92 (9th Cir. 2014). Second, Petitioner’s argument that the BIA

failed to consider country conditions reports lacks merits. The IJ found that

Petitioner’s expert testified to facts that were “corroborated” by the country

conditions evidence, and Petitioner has not pointed to anything that would rebut

“the presumption that the BIA reviewed the record and considered all relevant

evidence.” Park v. Garland, 72 F.4th 965, 979 (9th Cir. 2023).

PETITION DENIED.

3 Petitioner refers to anexos as “underground rehabilitation centers,” and exhibits submitted by Petitioner indicate that anexos are privately operated rehabilitation centers run by organized crime groups.