Loya-Leon v. Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 10, 2023
• Docket: 21-1352
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 10 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

OSCAR LOYA-LEON, No. 21-1352

Petitioner, Agency No. A073-445-689

v. MEMORANDUM * MERRICK B. GARLAND, Attorney General,

Respondent.

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

Argued and Submitted April 10, 2023 Pasadena, California

Before: FLETCHER, BERZON, and MILLER, Circuit Judges. Partial Concurrence and Partial Dissent by Judge MILLER.

Oscar Loya-Leon, a citizen of Mexico, petitions for review of the Board of

Immigration Appeals’ (“BIA”) dismissal of his appeal from the immigration

judge’s (“IJ”) denial of his applications for asylum, withholding of removal under

the Immigration and Nationality Act (“INA”) and the Convention Against Torture

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.

1 (“Convention”), and deferral of removal under the Convention. We grant the

petition in part and deny it in part.

1. The agency did not abuse its discretion in concluding that Loya-Leon

was ineligible for asylum and withholding of removal because he was convicted of

a particularly serious crime. See 8 U.S.C. §§ 1158(b)(2)(A)(ii),

1231(b)(3)(B)(ii); 8 C.F.R. § 1208.16(d)(2). Although the IJ recited the reasons

Loya-Leon’s drug conviction could be considered “inherently particularly serious,”

she went on expressly to apply the required Matter of Frentescu,18 I. & N. Dec.

244 (BIA 1982), factors. The BIA then adopted and affirmed the IJ’s analysis

under Matter of Burbano, 20 I. & N. Dec. 872, 874 (BIA 1994). See Abebe v.

Gonzales, 432 F.3d 1037, 1040–41 (9th Cir. 2005) (en banc). As the agency

applied the correct analysis, we deny the petition as to Loya-Leon’s claims for

asylum and withholding of removal under the INA and the Convention.

2. Loya-Leon did not fail to exhaust the arguments made in this court

concerning the IJ’s adverse credibility determination and treatment of his expert

declaration. The BIA adopted and affirmed the IJ’s decision under Burbano. The

BIA’s adoption of an IJ’s decision addressing the issues raised in this court satisfies

the exhaustion requirement. See Abebe, 432 F.3d at 1040–41.

2 3. The BIA and IJ erred in determining that Loya-Leon’s declaration was

entirely not credible. Remand is therefore required on the merits of Loya-Leon’s

application for deferral of removal under the Convention.

a. The adverse credibility determination rested on the IJ’s finding that

Loya-Leon’s expert made an “assessment . . . that the respondent is unreliable

when it comes to recalling past events.” The expert never described Loya-Leon as

“unreliable.” The expert indicated that Loya-Leon has difficulties “assess[ing] the

intentions of others”; that “[h]e may need more time to respond to questions or to

be asked questions repeatedly” because his current medication “causes him to at

times have difficulty concentrating and difficulties with his memory”; and that

during the evaluation his “account of the events he experienced and his reactions to

them were not consistently coherent,” as he has “difficulties presenting a logical

and organized account of his life.” These opinions do not support a conclusion that

when Loya-Leon is able to coherently recount past events, his account in its

entirety is not credible.

The expert identified aspects of Loya-Leon’s account that were hallucinatory

or delusional. But the expert opined that other aspects of his account are likely not

delusional, concluding that Loya-Leon “was likely threatened with death, robbed

and fired consistently due to the visible symptoms of his mental illness while in

Mexico,” including by people who “may have been involved in organized crime.”

3 The IJ accepted that the expert was qualified in the field of mental disorders and

their symptoms, but did not acknowledge or consider the expert’s actual mental

health conclusions, which included her assessment of which aspects of Loya-

Leon’s account were not delusional. Although the IJ could ultimately conclude

that the expert’s opinions are unpersuasive, the IJ may not base the adverse

credibility finding on a determination of complete unreliability the expert never

made.

b. The IJ concluded that Loya-Leon’s declaration was not credible in part

because his declaration was inconsistent with his 2016 credible fear interview, but

that finding is not supported by substantial evidence. Both Loya-Leon’s

declaration and the record of his 2016 interview reflect his allegation that criminal

groups in Mexico attempted to recruit him.

c. The credibility determination was further flawed because the IJ did not

consider the “totality of the circumstances,” § 1158(b)(1)(B)(iii), including whether

other evidence in the record corroborated Loya-Leon’s account. Kumar v.

Garland, 18 F.4th 1148, 1151 (9th Cir. 2021) (quoting § 1158(b)(1)(B)(iii)).

Asserting that “the declaration from [the expert] is derived from the

respondent’s own unreliable account and statements,” the IJ declined to consider

whether the expert declaration corroborated Loya-Leon’s assertion that he was

harmed by police and criminal groups in the past. Substantial evidence does not

4 support the IJ’s reason for rejecting the bulk of the expert declaration. The expert’s

declaration did rely in part on Loya-Leon’s own reports. But it also relied on her

own direct observations of his behavior during a clinical interview, her review of

his psychiatric treatment records from his detention at Otay Mesa, as well as her

expert assessment of what types of behaviors or statements would tend to reflect

delusion or hallucination. The expert declaration tended to corroborate Loya-

Leon’s claims because it provided evidence that he is unable to keep his delusional

thoughts to himself and is likely to share them with others; the symptoms of his

mental illness are visible to others and so are likely to draw negative attention from

others; his symptoms are unlikely to improve and instead will likely worsen if he is

removed to Mexico; and his reported past difficulties are consistent with what is to

be expected for a person with schizophrenia.

Similarly, the IJ erred in declining to consider whether the country

conditions evidence tended to corroborate Loya-Leon’s account that he was

previously targeted by police and criminal groups. A relevant factor in assessing

an applicant’s credibility is “the consistency of [the applicant’s] statements with

other evidence of record (including the reports of the Department of State on

country conditions).” 8 U.S.C. § 1158(b)(1)(B)(iii) (emphasis added).

In concluding that Loya-Leon did not corroborate his declaration, the IJ did

not address key country conditions evidence supporting his allegation that he was

5 in the past, and would be in the future, singled out by police and criminal groups

due to the visible symptoms of his mental illness or his homelessness. For

example, the State Department’s 2019 Mexico Human Rights Report stated that

“violence targeting persons with disabilities” by “police, military, and other

government officials and illegal armed groups” is a “significant human rights

issue[]” in Mexico. Impunity for such abuses “remained a problem, with

extremely low rates of prosecution for all crimes.” Another report on adults with

mental disabilities indicated that Mexican police target homeless people.

The country conditions evidence also tended to corroborate Loya-Leon’s

claim that when he was arrested by the police, they beat him or other prisoners.

For example, a January 2018 country report stated that a 2016 survey of over

64,000 people incarcerated in prisons throughout Mexico found that “57.8 percent

of the prison population reported having suffered some type of physical violence at

the time of their arrest,” and significant proportions of those surveyed reported

being hit or kicked, receiving electrical shocks, or being choked, held underwater,

or smothered. An April 2016 study found that 80 percent of detained persons

“showed bodily injuries possibly due to ill treatment and torture.”

****

We therefore remand Loya-Leon’s claim for protection under the

Convention to the agency for consideration of whether, under the totality of the

6 circumstances, his declaration should be credited for purposes of assessing the

likelihood he would be tortured in the future, given that his declaration was not in

fact inconsistent with his 2016 credible fear interview, and in light of the

corroborating evidence in the expert declaration and country conditions reports. 1

4. The IJ and BIA also failed to give reasoned consideration to Loya-

Leon’s other evidence concerning his likelihood of future torture. “[A]ll evidence

relevant to the possibility of future torture shall be considered” by the agency, 8

C.F.R. § 1208.16(c)(3), and the failure to discuss “highly probative or potentially

dispositive evidence” is legal error. Flores Molina v. Garland, 37 F.4th 626, 632

(9th Cir. 2022) (quoting Cole v. Holder, 659 F.3d 762, 772 (9th Cir. 2011)).

As noted, the IJ failed to take into account relevant aspects of the expert

declaration concerning the likelihood that Loya-Leon would be perceived and

singled out as mentally ill. Further, the IJ did not consider the evidence in the

country reports concerning Loya-Leon’s future risk of being singled out by police

or criminal groups due to his disability or because of homelessness; the risk that

the police would physically abuse him; or the problem of impunity for abuses

against persons with disabilities.

1 Substantial evidence supports the agency’s conclusion that, assuming Loya- Leon’s declaration is credited, the past harms he suffered did not rise to the level of torture. See, e.g., Vitug v. Holder, 723 F.3d 1056, 1066 (9th Cir. 2013). 7 Although the IJ stated generally that she considered “all evidence in the

record,” the use of “a catchall phrase does not suffice” when “there is any

indication that the [agency] did not consider all of the evidence before it.” Cole,

659 F.3d at 771–72; see also 8 C.F.R. § 1208.16(c)(3). Here, the IJ repeatedly

stated that Loya-Leon had failed to show a particularized risk of torture or a risk

any greater than that faced by “the general population in Mexico.” But the expert

and country conditions evidence is highly probative of the likelihood that Loya-

Leon has a particularized risk of torture based on the visible symptoms of his

mental disability, his tendency to share his delusional thoughts with others, and his

likely homelessness. See, e.g., Guan v. Barr, 925 F.3d 1022, 1034 (9th Cir. 2019).

We therefore remand for the agency to consider the whole record in assessing

Loya-Leon’s future risk of torture. 2

Each party shall bear its own costs. See Fed. R. App. P. 39(a)(4).

PETITION DENIED IN PART, GRANTED IN PART, AND REMANDED.

2 We reject Loya-Leon’s challenge to the agency’s conclusion that he did not establish he would be likely to be tortured in a Mexican psychiatric institution. He points to no record evidence that the harms he would face are specifically intended to inflict severe pain and suffering. See Villegas v. Mukasey, 523 F.3d 984, 989 (9th Cir. 2008). 8 FILED Loya-Leon v. Garland, No. 21-1352 MAY 10 2023 MOLLY C. DWYER, CLERK MILLER, Circuit Judge, concurring in part and dissenting in part: U.S. COURT OF APPEALS

Congress has directed us to accept the agency’s factual findings, including

adverse credibility determinations, “unless any reasonable adjudicator would be

compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B); see Garland v.

Ming Dai, 141 S. Ct. 1669, 1677 (2021). Loya-Leon has not met that standard, so I

would deny the petition for review in its entirety.

The immigration judge, whose decision the Board adopted, wrote that she

gave “full evidentiary value to the assessment of [the expert] that [Loya-Leon] is

unreliable when it comes to recalling past events.” That was a reasonable

interpretation of the expert’s testimony. The expert observed that “many of [Loya-

Leon’s] perceptions of his experiences since the onset of his symptoms since 2005

are influenced by delusional thinking,” and that “Loya Leon’s account of the

events he experienced and his reactions to them were not consistently coherent.”

The immigration judge reasonably understood those statements to mean that, even

if there may be some truth in Loya-Leon’s recollections, they cannot be taken at

face value, and they are thus “unreliable.”

Although the expert opined that certain aspects of Loya-Leon’s account were

“likely” true, the immigration judge was not required to accept that opinion as long

as she “state[d] ‘in the record why the testimony was insufficient to establish the

1 probability of torture.’” Castillo v. Barr, 980 F.3d 1278, 1283 (9th Cir. 2020)

(quoting Cole v. Holder, 659 F.3d 762, 772 (9th Cir. 2011)). The immigration

judge did just that, explaining that the expert’s conclusions about Loya-Leon’s

experiences were based on his own reports, so they were unreliable for the same

reason as the reports themselves. To be sure, the expert also based her declaration

on her own observations of Loya-Leon’s behavior during an interview, her review

of his psychiatric treatment records, and her knowledge of schizophrenia and its

symptoms. But the expert drew on her observations, research, and background

knowledge in order to diagnose Loya-Leon’s illness. She did not explain how any

of those things equipped her to accurately separate fact from fiction in Loya-

Leon’s reports of his experiences in Mexico. The expert was not present with

Loya-Leon in Mexico, and her expertise—in mental disorders and their symptoms,

not recent Mexican history—gave her no apparent basis for assessing what

happened to him there. Substantial evidence thus supports the agency’s conclusion

that Loya-Leon’s reports, and the aspects of the expert’s declaration derived from

them, were unreliable.

The agency did not err in not saying more about evidence of country

conditions because that evidence was neither “highly probative” nor “potentially

dispositive.” Cole, 659 F.3d at 772; see Bowman Transp., Inc. v. Arkansas-Best

Freight Sys., Inc., 419 U.S. 281, 286 (1974) (“[W]e will uphold a decision of less

2 than ideal clarity if the agency’s path may reasonably be discerned.”). To the extent

that any country conditions evidence suggested that Loya-Leon might be targeted

by criminal groups in Mexico, it was beside the point because the immigration

judge found insufficient evidence that the Mexican police would acquiesce in

torture at the hands of criminal groups. As to the threat of torture by the police,

there was scant evidence suggesting that Loya-Leon faces a particularized threat of

torture. The State Department’s 2019 Mexico Human Rights Report does not say

that government officials target people with disabilities. Rather, it notes reports of

government officials participating “in unlawful or arbitrary killings, forced

disappearance, and torture,” and then, separately, notes generalized “violence

targeting persons with disabilities,” without identifying the source of such

violence. And although the Report notes that “[i]mpunity for human rights abuses

remained a problem, with extremely low rates of prosecution for all crimes,” we

have held that “evidence that a government has been generally ineffective in

preventing or investigating criminal activities [does not] raise an inference that

public officials are likely to acquiesce in torture.” Garcia-Milian v. Holder, 755

F.3d 1026, 1034 (9th Cir. 2014).

Finally, although violence against prisoners in Mexico is apparently

widespread, the immigration judge found that Loya-Leon had not shown that it is

more likely than not that he would become a prisoner or that police would torture

3 him in the course of making an arrest. The immigration judge noted the chain of

events that would have to take place for Loya-Leon to be tortured by police and

concluded that “[a]ll of these are a series of suppositions that [Loya-Leon] has

failed to show is more likely than not to occur.” In making that determination, the

immigration judge did not ignore any highly probative evidence about the risks

that Loya-Leon might face were he to become homeless. The record does contain

some evidence that the police place homeless people in psychiatric institutions, but

Loya-Leon has cited no country conditions evidence suggesting that the police

target the homeless for violence or imprisonment. And as the court observes, Loya-

Leon has not established that he is likely to be tortured if placed in a psychiatric

institution. Because substantial evidence supports the conclusion that Loya-Leon is

not more likely than not to be arrested or imprisoned by police, the agency did not

err by not expressly addressing the data on violence against Mexican prisoners.