Javier Adame Chavarin v. Jefferson Sessions

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 9 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
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JAVIER ADAME CHAVARIN, No. 15-73518
Petitioner, Agency No. A039-805-421
v.
MEMORANDUM*
JEFFERSON B. SESSIONS III, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted April 7, 2017
Pasadena, California
Before: M. SMITH and N.R. SMITH, Circuit Judges, and FEINERMAN,**
District Judge.
Javier Adame Chavarin petitions for review of an order of the Board of
Immigration Appeals (BIA) affirming the decision of an Immigration Judge (IJ)
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Gary Feinerman, District Judge for the U.S. District
Court for the Northern District of Illinois, sitting by designation.
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denying his motion for administrative closure and his request for deferral of
removal under the Convention Against Torture (CAT). We dismiss the petition as
it pertains to administrative closure and deny Chavarin’s request for deferral of
removal under CAT.
Chavarin, a citizen of Mexico, lived for many years in the United States as a
legal resident. In 2000, he was convicted of assault with a deadly weapon,
imprisoned, and deported to Mexico upon his release. Family members (who live
in and are citizens of the United States) placed him in a private mental health
treatment facility in Tijuana due to his schizophrenia. Chavarin’s time at the
facility was very difficult; he was attacked by other residents and force-fed
ineffective medication. After leaving the facility, he attempted to re-enter the
United States, but was detained by the Department of Homeland Security and has
remained in detention ever since.
Chavarin sought deferral of removal under CAT. In support, he offered his
own testimony, the testimony of his family members, a report from Disability
Rights International (DRI) detailing mistreatment of individuals in Mexican mental
health facilities, and a declaration from an expert, Eric Rosenthal, opining that
Chavarin would likely be subject to inhumane and degrading treatment in a mental
health facility should he be returned to Mexico. The IJ found Chavarin’s
testimony credible, but nonetheless denied CAT relief on the ground that the
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evidence did not demonstrate that the Mexican government or individual actors
harbored a specific intent to engage in torture, and that Chavarin’s suggestions as
to why he was likely to be tortured were speculative. The IJ denied administrative
closure on the ground that despite his mental illness, Chavarin was competent to
proceed with the hearing. The BIA affirmed.
Torture under CAT is defined as:
[A]ny act by which severe pain or suffering … is intentionally
inflicted on a person [for a variety of enumerated purposes] …
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)(1). To constitute torture, “an act must be specifically
intended to inflict severe … pain or suffering. An act that results in unanticipated
or unintended severity of pain and suffering is not torture.” 8 C.F.R.
§ 1208.18(a)(5). Specific intent exists where “the actor intend[s] the actual
consequences of his conduct, as distinguished from the act that causes these
consequences.” Villegas v. Mukasey, 523 F.3d 984, 989 (9th Cir. 2008).
In Villegas, we considered the very question at issue here—whether
conditions in Mexican mental health facilities can amount to torture for purposes
of CAT—and found that the conditions, though poor, did not demonstrate a
specific intent on the part of the Mexican government to cause severe pain or
suffering, and thus did not amount to torture. Id. at 988-89. Chavarin contends
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that while this may have been the case when Villegas was decided some eight
years ago, the fact that the Mexican government has been on notice of the
conditions in mental health facilities and that those conditions have not
meaningfully improved has transformed what was mere negligence into a specific
intent to cause severe pain and suffering. But as the IJ found, conditions at
Mexican mental health facilities may be poor, but the DRI report also states that
progress has been made. The IJ was permitted on the record to conclude that this
progress defeats any notion that the Mexican government intends to cause severe
pain and suffering, and substantial evidence thus supports the finding that there is
no such intent.
Citing Cole v. Holder, 659 F.3d 762 (9th Cir. 2011), Chavarin contends that
the IJ erred in failing to consider the Rosenthal declaration. Cole holds that where
“potentially dispositive testimony and documentary evidence is submitted, the BIA
must give reasoned consideration to that evidence.” Id. at 772. But the IJ did
consider the declaration; he just did not find it persuasive in light of the other
record evidence. In particular, although the declaration suggested that it was
virtually inevitable that Chavarin would end up in a public mental institution if
removed to Mexico, the IJ correctly noted that Chavarin had never been
involuntarily placed in a public institution, that his family members testified they
would help him to the extent that they could, and that his only institutionalization
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in Mexico had been in a private institution. Given this, the IJ acted well within his
discretion in finding Rosenthal’s conclusions unpersuasive.
Finally, Chavarin argues that the IJ erred in denying his motion for
administrative closure based on his alleged incompetence to proceed. We lack
jurisdiction to review a decision to deny administrative closure. Diaz-Covarrubias
v. Mukasey, 551 F.3d 1114, 1118 (9th Cir. 2009).
Even if we accepted Chavarin’s recasting of this challenge into a due
process claim, his argument still fails because the IJ found that Chavarin was
competent to proceed with counsel. In any event, removal proceedings may go
forward even if the alien is incompetent, provided that appropriate safeguards are
put in place. See 8 U.S.C. § 1229a(b)(3) (“If it is impracticable by reason of an
alien’s mental incompetency for the alien to be present at the proceeding, the
Attorney General shall prescribe safeguards to protect the rights and privileges of
the alien.”); Matter of M-A-M, 25 I & N Dec. 474, 477 (BIA 2011) (“The Act’s
invocation of safeguards presumes that proceedings can go forward, even where
the alien is incompetent, provided the proceeding is conducted fairly.”). Here,
safeguards were firmly in place, including frequent breaks to allow Chavarin to
take his medication, the presence of three attorneys to represent him, and the
involvement of his family members at the hearing. Moreover, the IJ did not make
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adverse credibility determinations against Chavarin. Chavarin received the process
he was due, so the IJ’s decision to proceed did not violate due process.
Petition for review DENIED in part and DISMISSED in part.
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