Luis Cayetano-Hernandez v. Matthew Whitaker

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 5, 2018
• Docket: 17-72119
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 5 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

LUIS CAYETANO-HERNANDEZ, No. 17-72119

Petitioner, Agency No. A206-191-825

v. MEMORANDUM* MATTHEW G. WHITAKER, Acting Attorney General,

Respondent.

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

Argued and Submitted November 5, 2018 Seattle, Washington

Before: McKEOWN and FRIEDLAND, Circuit Judges, and GAITAN,** District Judge.

Luis Cayetano-Hernandez, a native and citizen of Mexico, seeks review of

the decision of the Board of Immigration Appeals (“BIA”) affirming the denial by

an Immigration Judge (“IJ”) of his request for asylum, withholding of removal and

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Fernando J. Gaitan, Jr., United States District Judge for the Western District of Missouri, sitting by designation. protection under the Convention Against Torture (“CAT”). We have jurisdiction

under 8 U.S.C. § 1252. We deny the petition in part, grant it in part, and remand to

the BIA.

“Where . . . the BIA has reviewed the IJ’s decision and incorporated portions

of it as its own, we treat the incorporated parts of the IJ’s decision as the BIA’s.”

Molina-Estrada v. INS, 293 F.3d 1089, 1093 (9th Cir. 2002). See also Ling Huang

v. Holder, 744 F.3d 1149, 1152 (9th Cir. 2014) (reviewing both the BIA and IJ’s

decisions where the BIA adopted the IJ’s decision and added some of its own

analysis).

The agency’s factual findings are reviewed for substantial evidence.

Villavicencio v. Sessions, 904 F.3d 658, 663 (9th Cir. 2018); Bringas-Rodriguez v.

Sessions, 850 F.3d 1051, 1059 (9th Cir. 2017) (en banc). Underlying decisions

should be upheld if they are “supported by ‘reasonable, substantial, and probative

evidence on the record considered as a whole.’” Abebe v. Gonzales, 432 F.3d 1037,

1039-40 (9th Cir. 2005) (quoting Mejia-Paiz v. INS, 111 F.3d 720, 722 (9th Cir.

1997)). Reversal is warranted where the record compels a reasonable fact finder to

conclude that the IJ’s decision was incorrect. Zhou v. Gonzales, 437 F.3d 860, 865

(9th Cir. 2006). Sanjaa v. Sessions, 863 F.3d 1161, 1164 (9th Cir. 2017) (“To

reverse the BIA, we must determine that the evidence not only supports [a

contrary] conclusion, but compels it – and also compels the further conclusion that

2 the petitioner meets the requisite standard for obtaining relief.” (alteration in

original) (internal quotation marks and citation omitted)).

To qualify for asylum, an application must demonstrate either past

persecution or a reasonable possibility of future persecution. Cayetano has not

alleged past persecution. In order to show future persecution, he may demonstrate

that there is a “‘reasonable possibility’ that he will be ‘singled out individually for

persecution’ if removed,” or “he may show that there is a systematic ‘pattern or

practice’ of persecution against the group to which he belongs in his home country,

such that, even without any evidence of individual targeting, his fear of persecution

is deemed reasonable.” Wakkary v. Holder, 558 F.3d 1049, 1060 (9th Cir. 2009)

(citing 8 C.F.R. §1208.13(b)(2)(iii)).

The BIA found that Cayetano’s fear of persecution was premised on his

belief that he would be committed to a mental health institution upon removal to

Mexico. The BIA noted that the IJ predicted that the possibility of involuntary

commitment was too low to give rise to a well-founded fear of persecution in such

an institution. The BIA gave two reasons for this low likelihood. First, the record

supported the IJ’s determination that outpatient treatment assists Cayetano in

managing his symptoms and reducing the frequency of his hallucinations. Second,

the record supported the IJ’s determination that Cayetano possessed the self-

sufficiency skills necessary to pursue and manage his treatment and psychotropic

3 medications on his own upon his removal to Mexico. The BIA stated that it agreed

with the IJ that these factors reduced Cayetano’s potential for involuntary

commitment in a mental health institution.

This conclusion is at odds with the evidence in the record. Although an

adult, Cayetano has always lived with his parents. His parents were the ones who

located medical professionals for Cayetano, took him to his appointments, assisted

him in obtaining and paying for his medications, helped him find work and worked

alongside him. Accordingly, the petition is granted as to the asylum and

withholding claims and remanded to the BIA to reconsider the likelihood of

persecution without the unsupported premise that Cayetano possesses the requisite

self-sufficiency skills necessary to access community mental health treatment and

manage his psychotropic medications in an unfamiliar country.

The BIA agreed with the IJ that conditions in Mexican mental health

institutions do not arise from a deliberate intent to inflict harm and thus upheld the

IJ’s denial of relief under CAT. In Villegas v. Mukasey, 523 F.3d 984 (9th Cir.

2008), the Court noted “[t]he regulations further provide that ‘to constitute torture,

an act must be specifically intended to inflict severe physical or mental pain or

suffering.’” Id. at 988 (quoting 8 C.F.R. § 1208.18 (a)(5)). The Court in Villegas

found that there was nothing in the record which indicated that Mexican officials

or private actors created these conditions “for the specific purpose of inflicting

4 suffering upon the patients.” Id. at 989. Cayetano did not point to any evidence in

the record that would show that the deplorable conditions at Mexico’s mental

institutions arose out of a specific intent to cause severe pain or suffering.

Therefore, Cayetano’s petition for relief pursuant to CAT is denied.

GRANTED in part, DENIED in part and REMANDED.