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U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals



Office ofthe Clerk

5107 Leesburg Pike, Suite 2000


Falls Church, Virginia 22041

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David, Alma Leonie OHS/ICE Office of Chief Counsel - TAC
Global Justice Law Group, PLLC 1623 East J Street, Ste. 2
216 First Ave S Tacoma, WA 98421
Suite 420
Seattle, WA 98104

Name: D -H ,E ... A 523

Date of this notice: 8/29/2017

Enclosed is a copy of the Board's decision and order in the above-referenced case.

Sincerely,

Cynthia L. Crosby
Deputy Chief Clerk

Enclosure

Panel Members:
Greer, Anne J.
Kelly, Edward F.
Kendall Clark, Molly

Userteam: Docket

For more unpublished BIA decisions, visit


www.irac.net/unpublished/index

Cite as: E-D-H-, AXXX XXX 523 (BIA Aug. 29, 2017)

U.S. Department of Justice Decision of the Board of Immigration Appeals


Executive Office for Immigration Review

Falls Church, Virginia 22041

File: 523 - Tacoma, WA Date: AUG 2 9 2017

In re: E -H

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IN REMOVAL PROCEEDINGS

APPEAL

ON BEHALF OF RESPONDENT: Alma L. David, Esquire

ON BEHALF OF DHS: Gwendolyn T.D. Franks


Assistant Chief Counsel

APPLICATION: Asylum; withholding of removal; Convention Against Torture

The respondent appeals from the Immigration Judge's March 13, 2017, decision denying his
claims for asylum, withholding of removal, and protection under the Convention Against Torture.
Sections 208(b)(l)(A), 241(b)(3)(A) of the Immigration and Nationality Act, 8 U.S.C.
1158(b)(l)(A), 1231(b)(3)(A); 8 C.F.R. 1208.13, 1208.16-.18. The Department of
Homeland Security ("DHS") opposes the appeal. We will remand the record for further
proceedings and issuance of a new decision.

We review findings of fact determined by an Immigration Judge, including credibility findings,


under a "clearly erroneous" standard. 8 C.F.R. 1003.l(d)(3)(i). We review questions of law,
discretion, and judgment, and all other issues in appeals from decisions of Immigration Judges,
de novo. 8 C.F.R. 1003.l(d)(3)(ii).

We previously remanded the record for the Immigration Judge to reassess the findings in her
February 2, 2016, decision that the respondent's proposed particular social group, "indigent
Mexicans without familial support and with chronic and perceptible mental illness involving
psychosis," lacked the requisite particularity to be cognizable under the Act.1 In addition, we
remanded for the Immigration Judge to reassess whether the respondent had established a
likelihood of being harmed on account of his membership in the proposed particular social group.
We found the Immigration Judge's analogy to Mendoza-Alvarez v. Holder, 714 F.3d 1161 (9th
Cir. 2013), which held that injustices arising from an inadequate health care system do not rise to
the level of persecution, to be misplaced because the respondent fears harm upon return based on
severe physical mistreatment or involuntary institutionalization due to his mental illness, not as
part of a group of individuals who lack resources to purchase medication.

1 We affirmed the Immigration Judge's finding that the proposed group of "Mexican men who are
presumed to be gang members because of visible gang tattoos" was not cognizable under the Act,
and the respondent has not further contested that issue (U at 19, March 13, 2017).

Cite as: E-D-H-, AXXX XXX 523 (BIA Aug. 29, 2017)
523

After accepting new evidence and hearing additional testimony on remand, the Immigration
Judge issued her decision on March 13, 2017, finding that the respondent's proposed particular
social group was sufficiently particular, but that it lacked social distinction, and therefore was not
cognizable under the Act (IJ at 21-27, March 13, 2017). The Immigration Judge denied the
respondent's claims for asylum and withholding of removal for this reason, and did not address
whether the respondent had established a well-founded fear or a likelihood of future persecution

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on account of his membership in the group (Id. at 27-28). The respondent timely appealed.

We agree with the respondent that, on this record, including the record submitted on
remand, the proposed particular social group of "indigent Mexicans without familial support and
with chrome and perceptible mental illness involving psychosis" meets the requirements
of immutability, particularity, and social distinction to be cogniz.able under the Act. Matter of
W- G-R-, 26 I&N Dec. 208, 221(BIA 2014)(to be cogniz.able, a particular social group must be
1) composed of members who share a common immutable characteristic, 2) defined with
particularity, and 3) socially distinct within the society in question); accord, Matter of M-E-V-G-,
26 I&N Dec. 227 (BIA 2014). Chronic psychosis is an immutable characteristic, and when
symptoms are manifest, individuals can be identifiable in this category. Thus, in our view, the
Immigration Judge erred in denying the respondent's applications for asylum and withholding of
removal for lack of a cognizable particular social group. (IJ at 27-28, March 13, 2017). We also
find that the respondent has established his membership in this particular social group.

We will remand the record, however, for the Immigration Judge to make findings of fact and
legal conclusions regarding whether the respondent has shown that the people who he fears will
harm him would be motivated to do so based on his membership in the particular social group.
See Matter of N-M-, 25 l&N Dec. 526, 532 (BIA 2011) (noting the significance of determining
whether the alleged persecutor is motivated by the protected trait). We recognize the Immigration
Judge's reasoning that the respondent has not demonstrated an inability to obtain medication or
outpatient treatment for his diagnosed schizophrenia(IJ at 33, March 13, 2017). While we do not
dispute that antipsychotic medication and mental health treatment exist in Mexico, we nonetheless
find clear error in the Immigration Judge's predictive findings of fact in this regard. Given the
respondent's diagnosis of schizophrenia and his regimen of medications, as well as the lack of
available resources upon return, particularly his family and treating doctors, we find it unlikely
that the respondent will be in a position to maintain his medication regimen, and likely that he will
decompensate and display symptoms of his illness.

The Immigration Judge should consider, however, whether the inability of law enforcement
and/or health care professionals in Mexico to appropriately respond to and treat the respondent's
schizophrenia is evidence of an intent to persecute or torture him for purposes of establishing his
eligibility for asylum and withholding of removal, as well as protection under Article 3 of the
Convention Against Torture(IJ at 34, addressing this issue only in the context of the Convention).
See Matter ofN-M-, 27 I&N Dec. at 526(persecution requires intent on the part of the persecutor);
see also Villegas v. Mukasey, 523 F.3d 984, 988-89 (9th Cir. 2008) (to establish a likelihood of
torture for purposes of the Convention Against Torture, the applicant must demonstrate that severe
pain or suffering was specifically intended).

Accordingly, the following order will be issued.

Cite as: E-D-H-, AXXX XXX 523 (BIA Aug. 29, 2017)
523

ORDER: The record is remanded for further proceedings consistent with the foregoing opinion
and for entry of a new decision.

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Cite as: E-D-H-, AXXX XXX 523 (BIA Aug. 29, 2017)
. ,.,. ,
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UNITED STATES DEPARTMENT OF JUSTICE


EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
1623 EAST J STREET, SUITE 3
TACOMA, WA 98421

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Global Justice Law Group, PLLC
David, Alma Leonie
216 First Ave S
Suite 420
Seattle, WA 98104

IN THE MATTER OF FILE A 523 DATE: Mar 13, 2017


D -H , E

UNABLE TO FORWARD - NO ADDRESS PROVIDED

_!_ATTACHED IS A COPY OF THE DECISION OF THE IMMIGRATION JUDGE. THIS DECISION


IS FINAL UNLESS AN APPEAL IS FILED WITH THE BOARD OF IMMIGRATION APPEALS
WITHIN 30 CALENDAR DAYS OF THE DATE OF THE MAILING OF THIS WRITTEN DECISION.
SEE THE ENCLOSED FORMS AND INSTRUCTIONS FOR PROPERLY PREPARING YOUR APPEAL.
YOUR NOTICE OF APPEAL, ATTACHED DOCUMENTS, AND FEE OR FEE WAIVER REQUEST
MUST BE MAILED TO: BOARD OF IMMIGRATION APPEALS
OFFICE OF THE CLERK
5107 Leesburg Pike, Suite 2000
FALLS CHURCH, VA 22041

ATTACHED IS A COPY OF THE DECISION OF THE IMMIGRATION JUDGE AS THE RESULT


OF YOUR FAILURE TO APPEAR AT YOUR SCHEDULED DEPORTATION OR REMOVAL HEARING.
THIS DECISION IS FINAL UNLESS A MOTION TO REOPEN IS FILED IN ACCORDANCE
WITH SECTION 242B(c)(3) OF THE IMMIGRATION AND NATIONALITY ACT, 8 U.S.C.
SECTION 1252B(c) (3) IN DEPORTATION PROCEEDINGS OR SECTION 240(c)(6),
8 U.S.C. SECTION 1229a(c) (6) IN REMOVAL PROCEEDINGS. IF YOU FILE A MOTION
TO REOPEN, YOUR MOTION MU_ST_ BE_ F.ILED WITH THIS COURT:

IMMIGRATION COURT
1623 EAST J STREET, SUITE 3
TACOMA, WA 98421

OTHER:

COUR
IMMIGRATION COURT
>
FF
CC: GWENDOLYN FRANKS, ICE ASST. CHIEF COUNSEL
1623 E J STREET SUITE i2
TACOMA, WA, 98421

UNITED STATES DEPARTMENT OF JUSTICE


Executive Office for Immigration Review
Tacoma Immigration Court
Tacoma, Washington

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File No. A 523
In the Matter of:

D H ,E In Removal Proceedings
Respondent

Charge(s): INA Section 237(a)(2)(B)(i) violation of a controlled substance

Application(s): Asylum, Withholding of Removal, and Convention Against Torture

On Behalf of Respondent On Behalf of DHS


Alma David, Esq. Anthony Capece
Global Justice Law Group Assistant Chief Counsel
216 1st Avenue S, Suite 420 U.S. Immigration Customs and Enforcement
Seattle, WA 98104 U.S. Department of Homeland Security
1623 East J Street, Suite 2
Tacoma, WA 98421

DECISION OF THE IMMIGRATION JUDGE

I. Factual and Procedural History

On February 16, 2016, the court ordered Respondent removed to Mexico and denied his

applications for asylum, withholding of removal and protection under the Convention Against

Torture. See Decision of the Immigration Judge (Dec. 17, 2015) [hereinafter "U Decision"].

Respondent, through counsel, timely appealed the court's decision to the Board of Immigration

Appeals ("Board"). The case is back before the court on remand from the Board for further

analysis of the respondent's eligibility for asylum and withholding of removal based on his

membership in the particular social group of "indigent Mexican without familial support and

with chronic and perceptible mental illness involving psychosis." Decision of the Board (Aug. 4,

1
2016) [hereinafter "BIA Decision"]. Specifically, the Board instructed the court "to detennine

whether the defining characteristics of [Respondent's] proposed group, including the behavior

manifestations of psychosis, have commonly accepted meaning within the society in question,

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such that the characteristics serve as an adequate benchmark for ascertaining group

membership." Id. at 3. The Board, however, did not disturb the court's prior decision denying

Respondent's application for asylum and withholding of removal based on his membership in the

particular social group of "Mexican men who are presumed to be gang members because of

visible gang tattoos." Id at 2. Thus, the court hereby incorporates, in its entirety, its written

decision from February 16, 2016 to the extent that it is not inconsistent with the written decision

herein.

On September 22, 2016, Respondent appeared with counsel to an initial master calendar.

The court reset the hearing to allow Respondent's counsel time to submit additional evidence on

remand. On October 20, 2016, Respondent appeared with counsel at a continued master calendar

hearing. Again, counsel for Respondent requested additional time to submit evidence, but

requested the court proceed with scheduling an individual hearing to take additional testimony.

On February 9, 2017, the court heard additional testimony from Dr. WhitneyDuncan.

Il. Evidence

The court has considered all evidence of record whether or not specifically mentioned.

A. Exhibits

Exhibit I Notice to Appear

Exhibit 2 Department of Homeland Security's Notice of Franco-Gonzalez Class


Membership and Request for Competency Inquiry

Exhibit 3 DHS Evidence


Record ofDeportable/lnadmissible Alien, Form 1-213

2
Conviction records

Exhibit4 Application for Asylum and Withholding of Removal, Form 1-589

Exhibit5 Notice of Consequences of Knowingly Filing a Frivolous Application for Asylum

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Exhibit 6 DHS Informative Memorandum to the Court
BBC News, Mexico doubles prison sentences for kidnapping (June3, 2014)
SF Gate, Mexico official: Top Capo nabbed in western Michoacan State (Feb.
27, 2015)
CNN, Reputed boss of Zetas drug cartel captured in Mexico (March5, 2015)
U.S. Department of State Mexico Travel Warnings
CIA World Factbook

Exhibit 7 Respondent's Pre-Hearing Statement


Respondent's Declaration
Report by Jeremy Slack, Ph.D. & Curriculum Vitae
Photos of respondent's tattoos
Excerpts of ICE Health Service Corps medical records
Miguel Pinedo, International Journal of Drug Police, The role of visual
markers in police victimization among structurally vulnerable persons in
Tijuana, Mexico (2014)
Immigration and Refugee Board of Canada, Mexico: Kidnappings for
Ransom, Including the types of kidnapping, protection available to victims,
the effectiveness of anti-kidnapping measures, and complicity of police
officers (July 2009-Aug. 2013)
Immigration and Refugee Board of Canada, Mexico: the presence and
activities of the Mara Salvatrucha (MS) and the Mara 18 in Mexico,
specifically in Mexico City, including the measures taken by the government
to fight the Maras and the protection available to their victims (2004 -Sep.
2009)
Nathan Jones, Woodrow Wilson Center's Mexico Institute, Understanding
and Addressing Youth in 'Gangs' in Mexico (2013)
John Stanton, Buzzfeed, The Deported: Life on the Wrong Side of the Boarder
for Repatriated Mexicans (2013)
Lucio R, Borderland Beat, Oaxaca-Veracruz: 8 bodies found slashed to death
in ongoing Ver turf war (2015)
.
Pedro Matias, Borderland Beat, Six men found executed in Oaxaca (2014)
Reporters Without Borders, Crime reported gunned down outside his home in
Oaxaca state (2014)
Justice in Mexico, SJP: Oaxaca is Mexico's most violent Municipality in
20I 3; Guerrero the most violent state (2014)

3
Borderland Beat, PRI Candidate wounded in Mexico attack, husband dies
(2013)
AP, Gang's Terror Felt Far from Drug War on U.S. Border (2011)
Disability Rights International, No Justice: Torture, Trafficking, and
Segregation in Mexico (2015) (excerpt)
Disability Rights International, The Rights of Persons with Mental Disabilities

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in the New Criminal Justice System (2013)


Disability Rights International, Abandoned and Disappeared: Mexico's
Segregation and Abuse of Children and Adults with Disabilities (20 I 0)
United Nations General Assembly, Report of the Special Rapporteur on
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
(Feb. 1, 2013)
N.Y. Times, Ex-Patients Police Mexico's Mental Health System (Oct. 21,
2013)
Schizophrenic, In Rural Mexico, Schizophrenics are Locked in Cages (Dec.
13, 2012)
InterPress Service, Appalling Conditions in Mexico 's Mental Health
Institutions (Jan. 14, 2011)
ABC News, The Abandoned Ones: "Hell" at a Mexican Institution (Nov. 30.
2010)
N.Y. Times, Abuses Found at Mexican Institutions for Disabled (Nov. 30,
2010)
Disability Rights International, Human Rights and Mental Health: Mexico
(2000)
N.Y. Times, Global Willowbrook(Jan. 16, 2000)
Ethno Med, No soy loco!ll'm not crazy!: Understanding the Stigma Against
Mental lllness in Latinos: a Guide (2009)
CNN, Stigma Haunts Mentally Ill Latinos (Nov. 15, 2010)
_Medical Anthropology_ Quarterly_, Transnational Disorders: .Returned
Migrants at Oaxaca Psychiatric Hospital
K.C. Brouwer et al, Journal of Immigration and Minority Health, Deportation
Along the U.S. Mexico Border: Its Relation to Drug Use Patterns and
Accessing Care (2009)
Victoria Ojeda et al, Journal of Urban Health, A Qualitative View ofDrug Use
Behavior of Mexican Male Injection Drug Users Deported from the United
States (2011)
Angela M. Robertson et al, Drug and Alcohol Dependence, Male Injection
Drug Users Try New Drugs Following Deportation to Tijuana, Mexico (2012)
Freedom House, Mexico 2015
Amnesty International, Annual Report: Mexico 2014115

Exhibit 8 Respondent's Supplemental Pre-Hearing Statement, including:


Additional declaration by Respondent

4
Report by Dr. Robert Kirkland, Ph.D.,

Exhibit 9 Respondent's Response to OHS Position on Eligibility

Exhibit 10 Amendments to Respondent's Fonn 1-589

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Exhibit 11 Letters from Respondent to the court

Exhibit 12 OHS Notice of Evidence


UN Committee on the Rights of Person with Disabilities (CRPD).
Concluding observations on the initial report of Mexico. October 27. 2014
UN Committee on the Rights of Person with Disabilities (CRPD). List of
issues in relation to the initial report of Mexico -Addendum. July 24, 2014
UN Committee on the Rights of Person with Disabilities (CRPD), List of
issues in relation to the initial report of Mexico, April 30, 2014
UN Committee on the Rights of Person with Disabilities CRPD).
Implementation of the Convention on the Rights of Persons with Disabilities,
Initial reports submitted by States parties in accordance with article 35 of the
Convention-Mexico, February 7,2013
Nature, Mexico chalks up success in health-care reforms (Aug. 17, 2012)
UCLA Magazine, Mexico's Experience with Health Care Reform (June
2013)
The New York Times, Ex-Patients Police Mexico's Mental Health System,
(October 21, 2013),
Counselling Resource, Institutional Care for Mentally RI in Mexico Brings
to Mind the US. Not so Long Ago (Nov. 18, 2013)
World Health Organization, Mental Health Atlas Country Profile
2014: Mexico
.. World Health Organization. Mental Health Atlas Country Profile 201 1 :
Mexico

Exhibit 13 OHS Brief in Opposition to Asylum and Withholding of Removal

Exhibit 14 Respondent's Motion fo r 14 Day Continuance

Exhibit 15 Respondent's Motion for Telephonic Appearance by Expert Witness

Exhibit 16 Respondent's Brief on Remand

Exhibit 17 Respondent's Motion for Telephonic Appearance by Qualified Representative

Exhibit 18 Respondent's Evidence on Remand


Declaration of Dr. Whitney Duncan, PhD, with attached curriculum vitae

5
c

Franco Mascayano et al, Stigma toward mental illness in Latin America and
the Caribbean: a systematic review, Revista Brasileira de Psiquiatria (2016)
Rebeca Robles-Garcia et al, Mental illness recognition and beliefs about
adequate treatment of a patient with schizophrenia: Association with gender
and perception of aggressiveness-dangerousness in a community sample of
Mexico City, Int. J. Soc. Psychiatry (2012)

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Mariana Espinola-Nadurille and Guadalupe Delgado, Mental Disability and
Discriminatory Practices: Effects of Social Representations of the Mexican
Population Int. J. Soc. Psychiatry (2009)
Adriane Hunsberger Gelpi, Priority Setting for HW and Mental Health in
Mexico: Historical, Quantitative and Ethical Perspectives (2014)
McClatchy Press, Human rights groups slam Mexico in dispute over UN
torture accusation, (2015)
Por Reforma, Violan derechos humanos en psiquiatricos de la Secretaria de
Salud (April 2016) with certified English translation
ABC News, David Muir Reports: Lawsuit to Be Filed Against Mexico for
Human Rights Abuses Against Disabled (May 2016)
Human Rights Watch, Letter to Special Rapporteurs on Mexico General Law
on Torture (August 2016)
Disability Rights International and The Colectivo Chuhcan, Mexico's
Segregation and Abuse of Children and Adults with Disabilities: Additional
Information Submitted to the CRPD Committee (2000)

Exhibit 19 DHS Notice of Evidence on Remand


Dr. Whitney Duncan, Ph.D., The Culture of Mental Health in a Changing
Oaxaca (2012)

B. Testimony

1. Testimiitiy ofRespondent

The respondent is a twenty-six year-old male who is a native and citizen of Mexico. He

first came to the United States with his family when he was twelve years old. He testified they

had a normal life growing up in Mexico. His father used to travel to the United States to work.

He testified they lived in a poor neighborhood.

He testified that his parents argued at times, but he was young and did not pay close

attention. He testified that his father mistreated him and his family. The mistreatment continued

in the United States. Later, his father asked him to leave the home when he was approximately

6
sixteen years old. He lived with a friend and worked in a restaurant to pay the rent. His mother

was sick with cancer at the time.

Respondent's last trip to Mexico was in 2006 when his mother passed away. He was in

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the city of Juxtlahuaca when a group of people talked to him and asked him where he came from.

They saw his tattoos and asked if he was Sureno, which Respondent explained is a gang of

people who live in the South Side. He said they tried to jump him. They said they could not be in

that neighborhood. Respondent and his cousin ran away. He testified he got in a fight several

times when he was in Mexico. He has not returned to Mexico since 2006.

He was arrested by the police because his father called the police. He is not sure why. He

was wearing baggy pants. The police told him that his father said he was not paying attention to

him and was stubborn. He was detained for five days. He reentered the United States two months

later. He was not mistreated by the police in Mexico.

Respondent explained that he was not part of the Surenos gang when he was in Mexico.

However, he later became a member of the Surenos that same year. He has numerous tattoos:

clown tattoo, Sur, STC, Cry Now Smile Later, and other tattoos on his fingers. He is still a

- member of the Surenos, but he has decided that he no longer wishes to participate. He stopped

associating with the Surenos in 2012. He never told them anything about leaving due to his fear

that he would be harmed. For example, he feared he could have been stabbed or shot. He saw

such things and participated in harming others. He joined because there were other groups that

tried to jump them. He joined the group for support since he did not have any when he was

fifteen or sixteen years old.

He first started having symptoms of schizophrenia between 2010 and 2011. He started

hearing voices. The voices wanted him to come with them. They were loud, and it startled him.

7
He heard a male voice in English, which scared him. He compared it to the "Devil's" voice. 1-:{e

was frightened and did not tell anyone. Later, he told his cousin, who suggested that Respondent

go jogging. Respondent went jogging, but he continued to hear the voices.

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Respondent now takes medications, and he does not hear the voices very frequently. He

estimated he hears it once a month. When he hears the voice, he feels like a different person. He

described feeling like nothing would happen to him if he jumped off a bridge or threw himself in

front of a car. It would be like his "destiny." Other voices call him, but he ignores them.

Sometimes he yells at them, uses foul words, and offends them.

He was arrested for burglary. He said he was hearing voices at the time. He explained it

was a problem with his father who did not treat him correctly. He felt his father was a coward

and dishonest. He testified the voices forced him to open the door. His father suspected him of

stealing $2,000. He denies the allegation. Respondent did not want to go to court because he ran

the risk of losing. He claims his father had to testify so he made up the theft. He was offered a

plea agreement and considered it a good deal. He was treated, prescribed medicine, and restored

to competency. He accepted the plea deal.

He has not- spoken with his father because he does not want-to.

He explained his fear to return to Mexico. He thinks he may be harmed by a member of

another gang. He does not think Mexico can treat his schizophrenia. He does not know if he can

get medication. He said something could happen to him, like "going mad."

He fears gangs because he might be in their territory. He might have to stay in his house.

He fears recruitment. He thinks that he will stand out to gang members because he has gang

tattoos.

8
On cross-examination, Respondent explained he was hanging out with a gang in Mexico,

but he was not ''jumped" in. (See also Exh. 7 at 8 (Respondent's declaration)). He was hanging

out with his cousin who was in a gang and his cousin's friends. In the declaration, Respondent

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said everyone knew where everyone is coming from depending on how they enter the city and

that is how they knew how that Respondent and his cousin were part of Sur 13. Id He testified

that each town belongs to a certain gang and that Santa Catarina is with Sur 13. He was attacked

in Juxtlahuaca because he was running with Sur 13 and they got in the other gang's territory. He

explained that he ran with the gang so they could back him up when he needed support. He had

not been invited to join the gang yet and was not formally a member. This is when his father

called the police. He was running with his cousin and the gang in Mexico. His father was mad

because Respondent was not getting up in the morning and had shaved his head. Id. Respondent

shaved his in Mexico. His father would not have accepted him bringing gang members to the

home.

Respondent does not have family in Mexico. His cousin is now in the United States.

Respondent agreed that he would not necessarily have to return to Oaxaca if Respondent

is removed to Mexico. However, Respondent believes that it is- not that easy to go-to a new place.

He could get disoriented or lost. He wants to stay with his younger sisters in the United States

His siblings went with him to Mexico for the funeral. They have not returned to Mexico after the

visit.

He was sentenced to thirteen months for the burglary offense. He received good time

credit. He did not seek any medical attention after the fights he got into in Mexico.

9
c

On re-direct examination, Respondent clarified that someone is not officially part of a

gang until (s)he is jumped in. He was running with the gang before he joined. In Mexico he

attended school through the fourth grade. He lived in Santa Catarina.

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2. Testimony ofDr. Robert Kirkland

Doctor Kirkland testified telephonically. His declaration is in Exhibit 8 at 8-14. He has a

M.A. and Ph.D. in Latin American studies. He has military experience. He wrote a book "Drug

Cartel and Gang Violence in Mexico and Central America," which was published in 2015. He

has reviewed respondent's declaration.

Dr. Kirkland offered that it is likely respondent would suffer hann that is different than

2006 if he is removed to Mexico now because: 1) violence is worse; 2) there has been

fragmentation of the gangs (in fighting and violence); 3) MS 13 has become more linked with the

Zetas; and 5) respondent's mental health condition. Dr. Kirkland assumes that Respondent's

mental health condition has gotten worse since 2006 and that he may be taken advantage of.

He testified that the government of Mexico is doing the best it can. There are high profile

arrests of cartel leaders, but at the same time only 25% of crimes are investigated and only 2%

- -a.re prosecuted. He thinks the government will try to protect Respondent, but he does not think

the government will be able to.

Dr. Kirkland testified about police corruption in Mexico. He explained that the local

police are being replaced with state and federal police officers. He described corruption at the

local level. He said respondent's hometown is small. He does not believe that the police officers

in Respondent's home town would go after him if Respondent relocated to a large urban area.

However, he believes that Respondent would probably be caught up in gang violence though.

10
When individuals are deported, their criminal records are made available to the

authorities. He speculates that there are officers who monitor the records and might share

Respondent's criminal record with local gangs.

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Dr. Kirkland described the reach of the Zetas. He explained that the Zetas are the most

powerful group in Mexico from the Gulf of Mexico to the Mexico-Belize border. Id. at 11. He

claims the Zetas know if someone is removed. He said respondent is a member of Surenos, and

he would most likely join a rival gang in Mexico and be harmed. The gangs might know him

from his activities in 2006 because he is from a small town.

On cross-examination, Dr. Kirkland recently retired from the military. With the military,

he reported on intelligence and security in Latin America. He also taught. He has not visited

Mexico since 2003. He wrote about the role of the Mexican military in drug violence. He agreed

that the United States participates and cooperates in drug enforcement activities with the

Mexican authorities. He has not worked with the Mexican police. He testified that not every

police officer in Mexico is corrupt. There are officers at the federal and state level who are

competent. The Mexican government is taking measures to fight the cartels. There is a push to

move the federal resources to the local level because there is a lot less corruption at the federal

level than the local level. There is screening by the federal government of local officials. Since

2009, the military has been deployed to assist local officials, but there has been criticism of some

violence by the military. The federal government is trying to affect things at the local level.

He understands that the government is given information about who is being removed

and why when someone is removed to Mexico. He has heard about this but does not have

personal experience. He does not know what percentage of people have problems because of

their criminal history.

11
He was asked about Z-42, but the witness does not know of him. This man was recently

captured. Dr. Kirkland acknowledges that the Mexican authorities are making arrests and trying

to make efforts to control the situation. He described the situation in Mexico as a "difficult

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thing." Dr. Kirkland mentioned that he believes the government of Mexico is trying, but he

believes that Respondent would be at risk at the local level where respondent would be.

He thinks the gang violence in Oaxaca has gotten worse, though there is no travel

warning by the United States Department of State for that state. (Exh. 6 at 19). He described

degrees of security. He described Oaxaca because it is more remote and safer.

3. Testimony ofDr. Whitney Duncan

On February 9, 2017, the court granted the motion for telephonic testimony by Dr.

Duncan as an accommodation under Matter ofM-A-M-. The court granted the motion by counsel

to appear telephonically as another accommodation under Matter ofM-A-M-.

Her curriculum vitae is accurate and mostly up-to-date. She has issued other articles. Her

opinion report is in the record. See Exh. 18 5-13. In her report, Dr. Duncan referred to

chronically ill people who have no family support or economic means and who often

permanently reside in mental health institutions with little hope of returning to society in Mexico

as "abandonados" and "cronicos.'' Id at 7. It is her opinion that the terms, "abandonados" and

"cronicos" are commonly known and understood in the context of psychiatric care. Most people

would understand "abandonados" to mean individuals who have been abandoned in a mental

health institution and forgotten by society. The average person would not know the clinical

definition of psychosis, but generally people know what psychosis is and would recognize

someone showing symptoms of psychosis. Most people understand that psychosis involves

hallucinations and recognize that behavior as a symptom of psychosis. She has heard of some

12
abuses in psychiatric hospitals. She worked primarily with out-patient individuals. She has seen

solitary confmement, neglect of in-patients, and ovennedication. She is aware of severe

allegations of mistreatment by mental health staff such as throwing food at patients and feeding

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them rotten food, but she never observed that or heard that from the people she interviewed. Dr.

Duncan confirmed there is a lack of funding for mental health in Mexico and a lack of training of

mental health professionals. The budget for health care is low. She thinks the low budget reflects

how the Mexican government views mental health, i.e. a low budget for a low priority. There is

discrimination and stigma in allocating funds. She testified there are more funds dedicated for

AIDS treatment because it is deemed a higher priority by the government. She explained that

budget decisions are intentional decision and these decisions are rooted in the stigma toward

mental health. Underfunding is a constant problem for practitioners and there are on-going

efforts and criticisms by practitioners to increase funding.

The "Hidalgo Moder is an effort to move mental health care from a hospital setting to a

more community based treatment. The focus is more on psychiatric care and a reintegration of

patients into communities. There are also efforts to staff general clinics with psychiatric

professionals, and may less acute-forms -of care available.- She believes there has been little

success with the program because of underfunding. Rather, any success is very uneven and only

a few hospitals have implemented the models. In Oaxaca, they built villas for potential living

space but no patients currently live there. Many similar projects are begun, but never fmished. In

Oaxaca, the patients still live in a dorm-like setting and wear "uniforms." She does not think the

program was successfully implemented.

Respondent was originally from Oaxaca. His immediate family is in the United States.

He does not have a support network in Mexico. He has gang tattoos that are visible. He suffers

13
from schizophrenia. Even when medicated he becomes symptomatic. Dr. Duncan thinks it is

highly unlikely Respondent would be able to access medical care that he requires outside of an

institution. There is only one public mental health facility in Oaxaca. His original village is at

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least six hours from this facility. She thinks it would be difficult for a symptomatic person to

travel to the facility. Most people are accompanied with family members. Sometimes patients are

transported by police after been found on the street. Without a network and resources to pay for

private healthcare treatment, it would be very difficult for someone to get non-institutionalized,

out-patient treatment. In order to have psychiatric care covered through the public health

insurance would require effort to navigate the paperwork. There are some bureaucratic barriers to

obtaining healthcare. Also, some specialized psychotropic medications are not covered by the

people's health insurance or available at all institutions.

Dr. Duncan acknowledged that is possible for Respondent to live in another city, for

example Mexico City that has more than one hospital. However, she thinks deportation as well

as relocation to an unknown city in Mexico could exacerbate his mental health condition. Even

in Mexico City where he would have more options for care, he would still have to get emolled in

the public health insurance and be compliant with this medical care without anyfamilialsupport

network.

On cross-examination, Dr. Duncan testified she has not testified for OHS as an expert.

She is being paid for her testimony by the Vera Institute. Most of her work is in research. She is

not formally or officially employed by immigrant rights advocacy groups. She has broader

expertise in Oaxaca and Latinos in the United States. She referenced the 2010 ORI report her

affidavit. The data referenced in her affidavit is at least six years old, but she also relied on recent

14
c

articles and literature from 2016. She has also returned to Mexico multiple times since her

original fieldwork.

She reached a conclusion about how the respondent would be treated in Mexico but she is

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not a clinician. She studies clinical treatment. She is emphatic that Respondent needs a familial

support system or support system of some kind to be successful in Mexico. Dr. Duncan assumes

Respondent will not have any support. She is aware Respondent has multiple U.S. citizen

siblings, it is her impression they have declined to assist him.

In her declaration, she referenced interviews with mental health practitioners and patients

conducted in Oaxaca. The research and interviews she conducted provided the basis for her 2012

dissertation. For the most part, the patients she interviewed did not have active psychosis. She

concluded in her dissertation that the Oaxaca system was improving. She explained however that

psychiatric care was only one piece of her dissertation and the area she saw the most

improvement was access to less specialized forms of care, such as staffing psychiatrist at general

clinics. However, she recently published an article that public psychiatric care has not improved.

The closest public mental health facilities to Oaxaca is Puebla and Chiapis. Dr. Duncan

- estimated that about eight out of 46 hospitals have successfully implemented the Hidalgo Model.

Dr. Duncan agreed that there are public hospitals and generally medication is available at

public hospitals. She takes issue with how low the federal budget is for mental health care. She

has not reviewed state or local budgets for mental healthcare. She agreed mental health treatment

is a broad category that includes counseling for anxiety to individuals with active psychosis. Her

dissertation indicates that some services, such as HIV, do include a mental health component.

She agreed she is not a budget expert. She does not think the government properly funds mental

health services. She has compared the guidelines for proper mental health ftmding in Mexico to

15
other countries and deems it low. She agreed that federal funding is limited and governments

have to make decisions on how to allocate. She agreed that just because there are fewer funds

does not mean this is a low priority. For example, the government may be spending more money

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to combat drug trafficking than they are in mental health. She agreed that drug use can contribute

to psychosis. She does not think it is it is reasonable to spend money on preventing access to

drugs as a means of preventing drug-related psychosis because there are plenty of mental

illnesses that are unrelated to drug use. Dr. Duncan thinks that many health organizations would

recommend more funding regardless of whether there is civil unrest in the country.

She confinned the people most at risk at those who have never received treatment. She

recognizes that Respondent does have a mental health diagnosis, has received treatment, and

takes medications to meet his needs. She detailed things that could happen to Respondent or

theorized what might happen to him, should he return to Mexico; including the worst possible

scenario.

Dr. Duncan confirmed the term "abandonados" is just the Spanish word for someone who

has been abandoned. This can refer to anyone, including children, but the media has used this

-tenn to refer to people with mental health issues who- languish in mental health institutions -

because their families do not want to care for them. This term refers to the abandoned situation,

not the specific mental health condition. She agreed the term refers to people with mental

illnesses other than psychosis, but it mostly refers to those in mental health institutions. If

respondent was returned to Mexico, he would not be sent to a mental health institution.

Dr. Duncan testified that people with psychosis can function very well if properly treated.

She does not think anyone should manage their care on their own they should have a medical

professional supervising any psychiatric treatment. Dr. Duncan agreed that people with

16
psychosis are not the only ones that can act in socially unacceptable ways; anyone can act in

socially unacceptable ways. It is her experience that people tend to assume a person who acts in

an aberrant or deviant way has a mental problem. She confirmed that her concern is that

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respondent can be discriminated against if thought mentally ill. Not all people who have mental

health conditions in Mexico are in hospitals.

On re-direct examination, Dr. Duncan was asked about the stigma of someone acting in

an erratic way. Dr. Duncan testified that public health workers have tried to educate people of the

symptoms of medical health issues. In Mexico, people manifesting symptoms could be referred

to as "crazy" or "loco," which are derogatory terms to describe people. She heard accounts of

mistreatment of people exhibiting symptoms by people around them in public. There is not a

deep understanding of mental illness in the general public. She stated, of course, not everyone

reacts this way.

Dr. Duncan was asked about funding of mental health and perceives this as a

discriminatory attitude. If this was brought to the government's attention in the ORI report and

there has been little improvement. Dr. Duncan thinks the continued lack of funding reflects the

government's willingness-to address the issue.

On re-cross, Dr. Duncan agreed that since the 2010 DRI report some changes have been

made in Mexico, but not the prevention of all abuses. She also testified that access to institutions

has been limited to some investigators. She is not sure how many hospitals were investigated.

m. Credibility

Respondent submitted his application for asylum, withholding of removal, and protection

under the Convention Against Torture on August 26, 2015. Exh. 3. Therefore, his application is

subject to the credibility provisions of the REAL ID Act. Matter of S-B-, 24 I&N Dec. 42, 43

17
(BIA 2006) (finding all applications filed after May 11, 2005 subject to the REAL ID Act).

Pursuant to the REAL ID Act of 2005 103(a), the court "may base an adverse credibility

determination on any relevant factor that, considered in light of the totality of the circumstances,

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can reasonably be said to have a 'bearing on [the Respondent's] veracity."' Ren v. Holder, 648

F.3d 1079, 1084-85 (9th Cir. 2011) (quoting Shrestha v. Holder, 590 F.3d 1034, 1044 (9th Cir.

2010)). Additionally, inconsistencies that do not speak to the applicant's veracity should not be a

part of the basis of an adverse credibility finding. Id. Under the totality of the circumstances, the

Immigration Court may consider:

the demeanor, candor, or responsiveness of the respondent or witness, the inherent


plausibility of the applicant's or witness's account, the consistency between the
applicant's .or witness's written and oral statements (whenever made and whether
or not under oath, and considering the circwnstances under which the statements
were made), the internal consistency of each such statement, the consistency of
such statements with other evidence of record (including the reports of the
Department of State on country conditions), and any inaccuracies or falsehoods in
such statements, without regard to whether an inconsistency, inaccuracy, or
falsehood goes to the heart of the applicant's claim, or any other relevant factor.

INA 208(b)( l )(B)(iii); see also Shrestha, 590 F.3d at 1040 (''The above list is not exhaustive

because the trier of fact may also consider 'any other relevant factor."'). The Immigration Judge

may not ''cherry pick solely facts favoring an adverse credibility detennination while ignoring

facts that undermine that result." Id Instead, the Immigration Judge must consult all of the

evidence before the court.

The court reiterates its prior findings that Respondent and Dr. Robert Kirkland testified

credibly. Additionally, the court finds Dr. Whitney Duncan testified credibly.

IV. Applications for Relief

A. Asylum

18
The court restates its finding that Respondent's conviction for burglary in the first degree

was not a particularly serious crime and he is eligible to apply for asylum and withholding of

removal. U Decision at 16-20.

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An applicant for asylum bears the burden of proving that he or she is a "refugee" under

INA 10l(a)(42)(A). INA 208(b)(l)(B)(i). A "refugee" is

any person who is outside any country of such person's nationality or, in the case
of a person having no nationality, is outside any country in which such person last
habitually resided, and who is unable or unwilling to return to, and is unable or
unwilling to avail himself or herself of the protection of, that country because of
persecution or a well-founded fear of persecution on account of race, religion,
nationality, membership in a particular social group, or political opinion.

INA 10 l (a)(42)(A) (emphasis added). Thus, an asylum applicant may demonstrate "refugee"

status in either of two ways: demonstrating past persecution or a well-founded fear of future

persecution. See id; 8 C.F.R. 1208.B(b); see also Deloso v. Ashcroft, 393 F.3d 858, 863-64

(9th Cir. 2005) (procedures for establishing asylum eligibility).

On appeal, the respondent did not challenge the court's prior findings that Respondent

had not demonstrated past persecution or a well-founded fear of future persecution on account of

his race and political opinion. BIA Decision at 2. Accordingly, the Board held those claims have

been waived. Id at 2 n.4. Also, as previously mentioned, the Board upheld the court's denial of

Respondent's claim for asylum and withholding of removal based on his membership in the

particular social group of "Mexican men who are presumed to be gang members because of

visible gang tattoos." Id at 2. Thus, the court will only address Respondent's claim he has a

well-founded fear of future persecution on account of his membership in the particular social

group of "indigent Mexican without familial support and with chronic and perceptible mental

illness involving psychosis."

1. Future Persecution

19
In the absence of past persecution, an applicant may be eligible for asylum based on a

well-founded fear of future persecution. See 8 C.F.R. 1208.13(b). A well-founded fear must be

subjectively genuine and objectively reasonable. Rusak v. Holder, 734 F.3d 894, 896 (9th Cir.

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2013); Ahmed v. Kei sler, 504 F.3d 1183, 1191 (9th Cir. 2007). The subjective prong of the well

founded fear test is satisfied by an applicant's credible testimony that he genuinely fears harm.

See Ahmed, 504 F.3d at 1191; Sae/ v. Ashcroft, 3 86 F.3d 922, 924 (9th Cir. 2004). Because of

Respondent's mental health condition, the court will accept Respondent's subjective fear as

genuine. Matter of J-R-R-A-, 26 l&N Dec. 609, 611 (BIA 2015). Thus, the court finds

Respondent's expressions of fear sufficient to establish that he genuinely fears hann if he is

removed to Mexico.

The objective prong may be satisfied "by adducing credible, direct, and specific evidence

in the record of facts that would support a reasonable fear of persecution." Ladha v. INS, 215

F.3d 889, 897 (9th Cir. 2000) (quoting Duarte de Guiniac v. INS, 179 F.3d 1156, 1159 (9th Cir.

1999) (internal quotation marks omitted), overruled on other grounds by Abebe v. Mukasey, 554

F.3d 1203, 1208 (9th Cir. 2009) (en bane) (per curiam). The applicant's fear may be well

founded even if there is only a sligh -though discernible, chance of persecution based on a

protected ground. INS v. Cardoza-Fonseca, 480 U.S. 421, 431 (1987). "[E]ven a ten percent

chance of persecution may establish a well-founded fear." Al-Harbi v. INS, 242 F.3d 882, 888

(9th Cir. 2001); see also Halim v. Holder, 590 F.3d 971, 977 (9th Cir. 2009). In determining

whether an applicant's fear of futlll"e persecution is objectively reasonable in light of curren t

country conditions, it is necessary to conduct an individualized analysis of how such conditions

will affect the applicant's specific situation. Marcos v. Gonzales, 410 F.3d 1112, 1120-21 (9th

Cir. 2005).

20
Respondent fears he will be subjected to numerous abuses, including severe physical

mistreatment_ in the future by members of the public, government officials or law enforcement

officers, or staff at one of Mexico's mental health facilities on account of his membership in the

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particular social group of "indigent Mexicans without familial support and with chronic and

perceptible mental illness involving psychosis." Exh. 16 at 28.

For the following reasons, the court again finds Respondent's proposed social group of

"indigent Mexicans without familial support and with chronic and perceptible mental illness

involving psychosis" does not qualify as a cognizable particular social group. A particular social

group must be (1) composed of members who share a common immutable characteristic, (2)

defined with particularity, and (3) socially distinct within the society in question. See Reyes v.

Lynch, 842 F.3d 1125, 1135-37 (9th Cir. 2016) (according Chevron deference to the Board's

definitions of particularity and social distinction); Matter of M-E-V-G-, 26 I&N Dec. 227 (BIA

2014); Matter ofW-G-R-, 26 I&N Dec. 208 (BIA 2014). An immutable characteristic is "one that

the members of the group either cannot change, or should not be required to change because it is

fundamental to their individual identities or consciences .. . [or] beyond the power of an

individual to-change." Matter ofAcosta, 19 I&N Dec.211, 233-34 (BIA l985). The part_iculty

factor requires that the group not "be amorphous, overbroad, diffused, or subjective," and it

"must be defined by characteristics that provide a clear benchmark for determining who falls

within the group." M-E-V-G-, 26 I&N Dec. at 239; see also Henriquez-Rivas v. Holder, 707 F.3d

1081, 1091 (9th Cir. 2013) (en bane). A proposed social group is "socially distinct," if the

society, in which the group exists, would perceive them as a group. M-E-V-G-, 26 I&N Dec. at

238, 240-41; see also W-G-R- 26 l&N at 216.

21
On further review of the record, the court now agrees with Respondent and finds his

proposed group is defined by the requisite immutable characteristics and particularity; however,

the court further finds Respondent's particular social group lacks the third element of social

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distinction. First, the court agrees with Respondent that his proposed social group is defined by

reference to immutable characteristics. See Matter of Acosta, 19 I&N Dec. 211, 233-34 (BIA

1985) (explaining that an imm utable characteristic is "one that the members of the group either

cannot change, or should not be required to change because it is fundamental to their individual

identities or consciences ...[or] beyond the power of an individual to change"). While

psychotropic medications can alleviate the symptoms of mental illness, an individual with a

mental health condition, such as schizophrenia, cannot change their diagnosis and will struggle

to manage the effects of their mental illness all their lives.See Temu v. Holder, 740 F.3d 887,

896-97 (4th Cir. 2014) (finding the group of "individuals with bipolar disorder who exhibit

erratic behavior" possessed immutable characteristics because mental illness was incurable

despite being controllable with medication). Thus, the court finds that Respondent's mental

health condition is an immutable characteristic beyond his ability to change. See Tchoukhrova v.

Gonzales, 404 F.3d 1181, 1188-90-(9th Cir. 2-005) vacated on other grounds by Gonzales v.

Tchoukhrova, 549 U.S. 801 (2006) (finding that "Russian children with disabilities that are

serious and long-lasting or permanent in nature and parents who care for them" qualified as a

particular social group because long.;.lasting or near permanent disabilities were immutable

characteristics that could not be changed).

Second, the court agrees that Respondent's proposed social group is sufficiently precise

to meet the particularity requirement. A group is particular if it is capable of being accurately

described "in a manner sufficiently distinct that the group would be recognized, in the society in

22
question, as a discrete class of persons." Henriquez-Rivas, 707 F.3d at 1091. Respondent's

proposed social group is formed by stringing together several adjectives that gradually narrow

the scope of the Mexican population to a particular subsect of people. First, Respondent limits

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the general Mexican population to only "Mexicans without familial support," which the court

finds Mexican society recognizes as the poor, unfortunate persons who exist outside of the

typical social structure of the close-knit family unit. Exh. 18 at 7 (Dr. Duncan's Report); Exh. 18

at 22-31 (discussing the stigma by family members toward fellow family members with mental

illness and reliance on familial support). Second, Respondent further restricts the boundaries of

his proposed social group by limiting the group of "Mexicans without familial support" to only

those members who also have mental illnesses that are chronic, perceptible, and involve

psychosis. Contrary to DHS's argument, the court finds Respondent's proposed social group

meets the particularity requirement because it is defined by several clear, specific benchmarks

that determine who falls in the group. See M-E-V-G-, 26 l&N Dec. at 239. In fact, the court finds

the most particular limiting characteristic of Respondent's proposed social group is its

requirement that its members have a mental illness involving psychosis, which often causes them

- to exhibit outwardly visible.. and recognizable. symptoms, such as acting on auditory -or visual

hallucinations. The court agrees with Dr. Duncan that even Mexicans with little to no formal

education have a general understanding that a person with psychosis may experience auditory or

visual hallucinations. Exh. 18 at 7. The court notes its doubts that the additional nonphysical

attributes of being indigent and having a chronic mental illness may be too amorphous and

subjective to meet that particularity requirement. However, in the end, the court finds

Respondent's proposed social group is narrowly defined by precise limiting characteristics when

considered as a whole meet the particularity requirement.

23
Yet, the court finds the same degree of specificity in Respondent's proposed social group

makes it difficult for Mexican society to view this particular subsect of people as belonging to a

distinct group. See Henriquez-Rivas, 707 F.3d at 1090 (explaining that the diversity of a

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particular social group's membership may prevent it from being perceived as belonging to the

same group). A proposed social group is considered "socially distinct," if the society, in which

the group exists, would perceive them as a group. M-E-V-G-, 26 I&N Dec. at 240 ; see also W-G

R- 26 I&N at 216. Again, the applicant bears the burden of presenting some "society-specific"

evidence to demonstrate that the society in question "perceives, considers, or recognizes persons

sharing the particular characteristic to be a distinct or separate group within society." Pirir-Boc v.

Holder, 750 F.3d 1077, 1084 (9th Cir. 2014); M-E-V-G-, 26 I&N Dec. at 241. In addition to

society's perspective, the Immigration Judge should also consider the persecutor's perspective

relevant insofar as it reflects the views of the greater society and/or "play[s] a role in causing

members of society to view a particular group as distinct." M-E-V-G-, 26 l&N Dec. at 223, 242;

Pirir-Boc, 750 F.3d at 1083 n. 6. Respondent argues that his particular social group is socially

distinct because the media, health practitioners, and the general public refer to "indigent

Mexicans without familial support and with chronic and -perceptible mental i llness involving

psychosis" as "abandonados" or "cronicos." Exh. 16 at 20-23.

First, the court finds the record evidence does not show the term "abandonados" is widely

used by Mexican society to refer to individuals like Respondent or that Mexican society uses the

term "abandonados" as a commonly accepted definition for indigent individuals with a chronic

perceptible mental illness involving psychosis. See Matter of M-E-V-G-, 26 I&N Dec. at 239;

Matter of W-G-R-, 26 l&N Dec. at 214. Rather, the evidence shows that the term "abandonados"

is typically used only by individuals in the mental health field, such as practitioners, institution

24
staff, and advocacy NGOs, like Disability Rights International, who coined the term

"abandonados" to draw attention to the plight of mentally ill individuals who languish in mental

health institutions because their families do not want to or cannot afford to care for them. See

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Exh. 7 at 289, 311, 323, 474. Indeed, even Dr. Duncan testified the terms "abandonados" and

"cronicos" are commonly known and understood in the context of psychiatric care. Outside the

context of mental health care, there is nothing in the record showing that Mexican society has by

and large adopted either " abandonado" or "cronico" to refer to "indigent Mexicans without

familial support and with chronic and perceptible mental illness involving psychosis.',.

Instead, the evidence shows that due to a "deeply rooted mix of cultural and

socioeconomic factors" the general Mexican population broadly views individuals with mental

illness as "loco" or "crazy" without regard to the various types of mental illness the persons

have. Exh. 7 at 573-577 (CNN, Stigma Haunts Mentally RI Latinos (Nov. 15, 2010); see also id

at 539-572 ("No Soy loco at p. 7). And this notion of painting the mentally ill with a broad brush

is exacting what the term "abandonados" does. As Dr. Duncan admitted in court, the term

"abandonados" broadly refers to mentally ill patients in institutions, not just those with chronic,

- perceptible mental illnesses -involving psychosis. Although there is evidence Latinos make some

distinctions among the mentally ill, such as between those who exhibit violent, aggressive

behavior and those who do not as well as between those who require medication and those who

do not, there is no evidence that Mexican society would differentiate between a bipolar

individual exhibiting perceptible symptoms of mental illness and Respondent, a schizophrenic

person with psychosis. Id ("No Soy loco at p. 7). Yet, a bipolar individual exhibiting perceptible

symptoms of mental illness would not fall within the tightly defined parameters of Respondent's

proposed social group. Respondent also argues that use of the term by the media in news articles

25
shows Mexican society has adopted the term. The court disagrees. A closer look at the record

reveals that all of the articles mentioning the term come from American news sources and every

time an article used the term "abandonados" it was referring to the Disability Rights International

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20 I 0 report, which had been published around the same time of the news article.

Second, despite Respondent and Dr. Duncan's assertions that these terms specifically

refer to individuals in Respondent's proposed group, the court finds these terms broadly refer

patients in mental health institutions. Exh. 16 at 17-18, 21. The record evidence makes clear that

mental health institution staff and use the term "abandonados" to refer to individuals who

pennanently reside in a mental health institution. However, Respondent's proposed social group

is not limited to individuals who reside in mental health institutions in any way. Rather,

Respondent's proposed social group refers to all "indigent Mexicans without familial support

and with chronic and perceptible mental illness involving psychosis" whether they are housed at

an in-patient facility, out-patient facility, or never received mental health treatment. Thus, the

court finds Respondent's argument puts the cart before the horse by assuming that Respondent

will be institutionalized in Mexico, he will become an "abandonado," and therefore recognizable

by those in the-mental health -field.

The court acknowledges that a colloquial term in a country's lexicon used to refer to

certain group of people is strong evidence that the society in question views those people as

socially distinct. See Maner ofA-R-C-G-, 26 l&N Dec. 388, 393 (BIA 2014) (looking to whether

certain attributes in a proposed social group have commonly accepted definitions); see also

Temu, 740 F.3d at 890 (finding Tanzanian society's label of "mwenda wazimu," which means

"demon possessed" evidence of social visibility). However, the key to social distinction is that

when two people use the same term, they are referring to the same people. That is just not the

26
case here. As Dr. Duncan admitted in court the tenn "abandonados" is just the Spanish word for

someone or something that has been abandoned. While mental health professionals use the word

to describe the long-term institionalized population, the same term could be used to refer to a

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child as an "abandonado" who has been orphaned. Even though professionals and advocates in

the mental health field have imbued the term with a secondary meaning to describe people who

have been abandoned in a mental health institution, this secondary meaning must be commonly

accepted to meet the social distinction requirement.

Accordingly, because the court finds Respondent has failed to demonstrate his proposed

social group of "indigent Mexicans without familial support and with chronic and perceptible

mental illness involving psychosis" is socially distinct, the court denies Respondent's claim for

asylum on these grounds.

B. Withholding of Removal

Withholding of removal is mandatory relief that must be granted if the applicant

demonstrates it is "more likely than not" that his "life or freedom would be threatened" on

account of his or her race, religion, nationality, membership in a particular social group, or

political opinion. INA 24l(b)(3); 8--C.F.R. 1208.16; see also Zhang. Ashcroft, 388 F.3d

713, 718 (9th Cir. 2004). One of the protected grounds must be "a reason" for the claimed

persecution, which is "a less demanding standard than 'one central reason'" for asylum. See

Barajas-Romero v. Lynch, 846 F.3d 351 (9th Cir. 2017). A showing of past persecution

establishes a rebuttable presumption of persecution in the futlll"e. See 8 C.F.R. 1208.l6(b)(l).

There is no statutory deadline for bringing an application for withholding of removal. El-Himri

v. Ashcroft, 378 F.3d 932, 937 (9th Cir. 2004). "The clear probability standard for withholding

of removal is more stringent than the well-founded fear standard governing asylum," and the

27
applicant must present "objective evidence" establishing the likelihood of persecution. Zehatye v.

Gonzales, 453 FJd 1182, 1190 (9th Cir. 2006). There is no discretionary element; if the

applicant establishes eligibility, withholding of removal must be granted. See INA 24l(b)(3).

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For the same reasons as stated above, the Court fmds Respondent has failed demonstrate

membership in a legally cognizable particular social group. Thus, the Court finds Respondent

has not met his burden of showing it is more likely than not his membership in a valid particular

social group would be "a reason" for the claimed persecution in the future. Accordingly, the

Court denies Respondent's request for withholding of removal.

C. Protection under the Convention Against Torture

Because the Board did not reach the court's prior findings on Respondent's claim for

protection under the Convention against Torture, the court rests on its prior analysis.

Pr otection under the Convention against Torture is mandatory relief. 8 C.F.R.

1208.16, 1208.17, 1208.18; see also Matter ofG-K-, 26 l&N Dec. 88, 93 (BIA 2013). An

applicant for protection under the Convention Against Torture has the burden of proving that it is

more likely than not that he or she will be tortured if removed to the proposed country. Al-Saher

v. INS; 268 F-.3dH43, 1147 (9th Cir. 200l) (quoting--8 CF.R 20816(c)(2)); see also-Matter-of

M-B-A-, 23 l&N Dec. 474, 477 (BIA 2002). "Torture" is defined as:

any act by which severe pain or suffering, whether physical or mental, is


intentionally inflicted on a person for such purposes as obtaining from him or her
or a third person information or a confession, punishing him or her for an act he
or she or a third person has committed or is suspected of having committed, or
intimidating or coercing him or her or a third person, or for any reason based on
discrimination of any kind, when such pain or suffering is inflicted by or at the
instigation of or with the consent or acquiescence of a public official or other
person acting in an official capacity.

8 C.F.R. 1208.18(a){l). "Torture is an extreme fonn of cruel and inhuman treatment [that] does

not include lesser forms of cruel, inhuman or degrading treatment or punishment that do not

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amount to torture" and "does not include pain or suffering arising only from, inherent in or

incidental to lawful sanctions." 8 C.F.R. 1208.18(a)(2)-(3).

To qualify, torture must be "inflicted by or at the instigation of or with the consent or

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acquiescence of a public official or other person acting in an official capacity.'' 8 C.F.R.

208.18(a)(l); Zheng v. Ashcroft, 332 F.3d 1186, 1188 (9th Cir. 2003). "Acquiescence" requires

that the 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." 8 C.F.R.

208.18(a)(7); see also Ornelas-Chavez v. Gonzales, 458 F.3d 1052, 1059 (9th Cir. 2006).

The Court must consider all evidence relevant to the likelihood of future torture to

determine if the applicant has met his or her burden of proof, including but not limited to: "past

torture inflicted upon the applicant;" "evidence that the applicant could relocate" to another part

of the country where it is unlikely he will be tortured; "gross, flagrant, or mass violations of

human rights" in the applicant's cowitry of removal; and "other relevant information regarding

conditions" in the applicant's country. 8 C.F.R. 1208.16(c)(3); see also Maldonado v. Lynch,

786 F.3d 1155, 1162-64 (9th Cir. 2015) (explaining the burden of proof with the 8 C.F.R.

1208.16(c) faGtors); Nuru v.- Gonzales, 404 F.Jd 1207, 1


- 217-20-(9th Cir. 2005
- ) (applying the -

factors in 8 C.F.R. 1208.16 to an applicant's application for Convention Against Torture

protection). Country conditions "can play a decisive role in granting relief under the [Convention

Against Torture]." Kamalthas v. INS, 251 F.3d 1279, 1280 (9th Cir. 2001) (holding that a

negative credibility finding did not preclude Convention Against Torture relief when country

conditions corroborated widespread torture of similarly-placed persons). However, a pattern of

human rights violations alone is insufficient to show that a particular applicant would be in

danger of torture if returned to that country. See Matter of S-V-, 22 I&N Dec. 1306, 1313 (BIA

29
2000), disagreed with on other grounds by Zheng, 332 F.3d 1186 (holding that human rights

violations did not indicate specific risk to applicant).

Respondent fears that he will more likely than not be tortured if he is removed to Mexico.

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(See Exh. 4 at 6 (Respondent's 1-589 application)). Specifically, Respondent explained in his

application that he fears (1) that he will be "beaten up or killed by gang members" because they

will think that he is a member of a different gang on account of his gang-related tattoos and (2)

that he will be "abuse[d]" because of his schizophrenia. Id at 6. Respondent did not specifically

testify about his fear of torture in Mexico beyond his general fear of harm in Mexico from gangs

or due to his mental health condition. For ease, the court addresses Respondent's application as

two separate claims, but the court finds that Respondent has not established that the aggregate

risk of harm he faces demonstrates that he will more likely than not be tortured. See Cole v.

Holder, 659 F.3d 762, 775 (9th Cir. 2011) (holding that an applicant for relief under the

Convention Against Torture ''must establish that, taking into account all possible sources of

torture, he is more likely than not to be tortured, by or with the consent or acquiescence of the

government").

l. Harmbygangs

Respondent fears that he will more likely than not be tortured by opposing gang members

because he will stand out due to his gang-related tattoos. (See Exh. 4 at 6). Specifically,

Respondent argues that he will more likely than not be tortured in Mexico "by government actors

or with the government's acquiescence because of the combination of his former membership in

a U.S. prison gang, his visible gang tattoos, his indigenous ethnicity, his status as a criminal

deportee from the United States, and his perceptible mental illness, which leads to disruptive

behavior." (Exh. 9 at 2). For Respondent to succeed with his application for relief, he must show

30
that each step in a hypothetical chain ofevents is itselfmore likely than not to occur. Matter ofJ

F-F-, 23 l&N Dec. 912, 917-18 (A.G. 2006).

First, the court finds that Respondent has not been tortured in the past in Mexico by gang

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members or by anyone due to his gang-related tattoos. Although Respondent had gang tattoos

and associated with his cousin, a gang member, when Respondent was last in Mexico in 2006,

the only harm Respondent suffered was involvement in gang fights. There is no evidence that

Respondent was particularly targeted at any point or that the fights inflicted "severe pain or

suffering" that could rise to the level of torture. As discussed above, the court finds that

Respondent did not suffer past persecution, a lower fonn of hann than torture. Thus,

Respondent's claim for reliefis entirely premised on his risk of future torture ifhe is removed to

Mexico.

The court acknowledges that Respondent has presented a large amount of evidence that

recent deportees from the United States, particularly individuals who have lived in the United

States for significant lengths of ti.me are at an above average risk ofbeing targeted by cartels or

gangs in Mexico. See, e.g., Exh. 7 at 188-213. Additionally, Respondent presented evidence that

individuals with visible gang tattoso are often viewed with suspicion and thatindividuals with

mental health conditions often have trouble with gangs/cartels, either because they are seen as

easy targets or because they are unable to properly internalize and follow the gang's rules. See,

e.g., id at 19, 20-22. Respondent thus is at a risk of hann due to his residence in the United

States, Surenos gang tattoos, and schizophrenia.

However, the court finds that Respondent has not shown that this risk rises to the level of

more likely than not being subjected to torture by gangs operating with the consent or

acquiescence of Mexican officials or by corrupt, rogue police officers or other government

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officials. Mexico struggles with a high level of cartel-led violence and official corruption. See,

e.g., id at 214-17; Exh. 8 at 11. Nevertheless, the Mexican government is actively taking action

to fight back against the cartels, and key cartel leaders have been arrested or killed in recent

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years. See generally Exh. 6 at 8-14. Both of Respondent's expert witness agree that Mexico is

working to combat the cartels and cartel violence. See Exh. 7 at 15 (referring to local law

enforcements efforts against the Zetas); Exh. 8 at 10-11 (discussing President Nieto' s and

President Calderon's use of the Mexican security forces to combat the cartels). While progress

may be slow, the court finds that the country conditions materials do not establish that the

government of Mexico, at the national or local levels, would remain willfully blind or otherwise

acquiesce to the torture of its citizens at the hands of its own police.

Additionally, the court finds that Respondent can effectively avoid the risk of hann he

fears by either returning to his hometown or by relocating within Mexico. The court understands

that the Zetas cartel is the dominant cartel in the state of Oaxaca and that Respondent fears harm

from MS-13 members affiliated with the Zetas. See e.g., id at 13. However, Respondent did not
,

have any trouble in his hometown of Santa Catarina when he returned to Mexico in 2006 despite

his gang-tattoos -and affiliation with his cousin who was in the gang. Instead; Respondent only

had trouble with other gangs when he left his town and went to a nearby city, Santiago

Juxtlahuaca. (See Exh. 7 at 8 (Respondent's declaration)). Although the z.etas may dominate

Respondent's home state of Oaxaca, there is no evidence that the gang activity in Respondent's

town specifically has changed since he was last in Mexico. If, however, Respondent fears harm

in his hometown, he also could relocate within Mexico. All parts of Mexico do not suffer from

the same level of commonplace cartel activity and violence; eleven Mexican states, including the

federal district, do not have any United States Department of State travel warnings for

32
individuals travelling to the country, indicating they are relatively safe portions of the country

compared with other states. (See Exh. 6 at 15-22). Respondent argues that it would be

unreasonable to expect him to relocate to avoid harm because he is unfamiliar with Mexico and

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because of his schizophrenia diagnosis. The court disagrees. Respondent provided no evidence

that he can only access treatment or medication for schizophrenia in one portion of the country.

Respondent indicated in his 1-589 application that he worked in restaurants and at a warehouse in

the United States, positions that are available in many areas of Mexico. (Exh. 4 at 5).

2. Mental Health Institutions

Respondent also presented a large amount of evidence regarding the conditions and

treatment of individuals with mental health conditions in mental health institutions in Mexico.

(See generally Exh. 7 at 228-376, 400-538). The court th.us understands that Respondent is afraid

of being tortured at a Mexican mental health institution. Again, for Respondent to succeed with

his application for relief, he must show .that each step in a hypothetical chain of events is itself

more likely than not to occur. Matter of J-F-F-, 23 I&N Dec. at 917-18. The court finds that

Respondent has not met his burden of proof.

Fi the court finds that Respondent has provided only mere speculation that-he-will be

unable to control his schizophrenia through medication or other less intrusive or invasive means

in Mexico. Although Respondent was previously institutionalized for approximately two months,

Respondent had not yet been diagnosed with schizophrenia at that point and was not aware of his

condition. (See Exh. 7 at 9). Now, however, Respondent is aware of his condition and the need to

take medication and seek treatment. There is no evidence that Respondent cannot seek and

obtain medication or outpatient schizophrenia treatment in Mexico.

33

Additionally, even if Respondent is institutionalized in Mexico, the court finds that

Respondent is not more likely than not to be tortured in a Mexican mental health institution.

Torture is defined as "any act by which severe pain or suffering, whether physical or mental, is

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intentionally inflicted on a person." 8 C.F.R. 1208.18(a)(l ) (emphasis added). The intent

requirement has been construed so as to require a showing that the government actor has the

specific intent to torture, aka a specific intent to "inflict severe physical or mental pain or

suffering." Matter of J-E-, 23 I&N Dec. at 298 (citing 8 C.F.R. 208.18(a)(5)). The Ninth

Circuit addressed the issue of intent in Villegas v. Mukasey, a case presenting substantially

similar factual circumstances as the respondent's. 523 F.3d 984 (9th Cir. 2008). In Villegas, the

applicant claimed that he would be subjected to torture in the form of living in inhumane

conditions should he be forced to return to Mexico and placed in a mental health facility due to

his bipolar disorder. Villegas, 523 F.3d at 989. The Ninth Circuit noted that while the evidence

indicated that Mexican patients at mental health facilities were "housed in terrible squalor," there

was simply no evidence ''that Mexican officials (or private actors to whom officials have

acquiesced) created these conditions for the specific purpose of inflicting suffering upon the

patients." Id. The court accordingly dismissed the applicant's claim under the Convention

Against Torture. Id

In this case, the court finds that Respondent has not presented any evidence that

illustrates that Mexican officials intend to cause patients any suffering that rises to the level of

torture. Although there are reports of all-too-often substandard and unsanitary conditions at

Mexican mental health institutions where restraints and other controversial treatments may be

used, Respondent has not provided any evidence that these conditions or tools are used with the

intent to torture patients. In fact, the health care providers at Mexico's mental health institutions

34
. .

cite many reasons for the use of restraints, including the prevention of f alls and the control of

self-injurious, disruptive, or otherwise difficult behavior, and explain that such tactics are used

because of a shortage of staff members to provide alternative care. (See Exh. 7 at 314).

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Accordingly, the court denies the applicant's application for protection under the

Convention Against Torture.

D. Voluntary Departure

To be eligible for post-conclusion voluntary departure, the respondent must (1) have been

physically present in the United States for a period of at least one year immediately preceding the

date the NTA was served; (2) be a person of good moral character for at _least five years

immediately preceding the respondent's application for voluntary departure; (3) not be

deportable under INA 237(a)(2)(A)(iii), as an alien convicted of an aggravated felony, or

237(a)(4), as an alien deportable for security grounds; and (4) have the means to depart the

United States and the intention to do so. INA 240B(b)( l )(A)-(D); 8 C.F.R. 1240.26(c); see

also INA IOl(t) (laying out the requirements for a find of "good moral character").

Additionally, voluntary departure is a privilege, and the respondent must show that he is entitled

. to-.a favorable exercise of discretion by the immigration judge, even if the respondent otherwise

meets the statutory requirements. See Matter of Arguelles-Campos, 22 I&N 811, 816-17 (BIA

1999). To detennine whether a favorable exercise of discretion is warranted as to a request for

voluntary departure, the court must weigh the relevant adverse and positive factors, including the

alien's prior immigration history; criminal history, if any; length of his residence in the United

States; and extent of his family, business, and societal ties in the United States. Matter of

Gamboa, 14 I&N Dec. 244, 248 (BIA 1972).

35
. '

The court finds that the respondent meets the minimum statutory requirements for the

relief of post-conclusion voluntary departure. However, the court denies the respondent's request

as a matter of discretion. The most significant positive equity in favor the respondent is his

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fourteen year residence in the United States. However, the respondent has used his long

residence in the United States to commit a wide range of criminal offenses, including multiple

offenses related to possession of methamphetamine, multiple weapons offenses, and burglary.

(See Exh. 3 at 3-4). The respondent was granted cancellation of removal in 2012, but he

continued to engage in criminal activity, demonstrating a lack of respect for this country's

immigration laws and the benefit afforded him in the past. Id The respondent did not submit any

evidence of significant ties to the United States, such as a long-term employment, property

ownership, or a spouse or children who live in the United States. Although Respondent indicated

in his 1-589 application that his father and four of his siblings live in the United States,

respondent also has a brother who resides in Mexico. (Exh. 4 at 5).

V. Orders

IT IS HEREBEY ORDERED Respondent's application for asylum is DENIED.

IT IS FURTHER ORDERED Respondent's application for withholding of removal under INA


241 (b)(3) is DENIED.

IT IS FURTHER ORDERED Respondent's application for withholding of removal under the


Convention Against Torture is DENIED.

IT IS FURTHER ORDERED that Respondent's application for voluntary departlU'e is


DENIED.

The Court ORDERS that Respondent be removed to Mexico.

March 13, 2017


Date Tammy, . Fitting
Immigration Judge

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