Eladio Clemente-Pacheco v. Jefferson Sessions ( 2018 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS APR 30 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ELADIO CLEMENTE-PACHECO, No. 16-73082
Petitioner, Agency No. A205-867-999
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 13, 2018
Seattle, Washington
Before: HAWKINS and McKEOWN, Circuit Judges, and TEILBORG,** District
Judge.
Eladio Clemente-Pacheco (“Clemente”), a native and citizen of Mexico,
seeks review of the Board of Immigration Appeals’ (“BIA”) affirmance of an
Immigration Judge’s (“IJ”) denial of his applications for asylum and withholding
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable James A. Teilborg, United States District Judge for the
District of Arizona, sitting by designation.
of removal and his request for Convention Against Torture (“CAT”) relief. We
have jurisdiction under 8 U.S.C. § 1252 and we deny the petition for review.
Initially, we reject Clemente’s first asylum and withholding of removal
claim, because we find unavailing his argument that he suffered past persecution
due to the Mexican government’s alleged unwillingness or inability to control his
abusive father. Substantial evidence supports the BIA’s finding that the police
were willing and able to control the father, because they always responded when
called and detained the father in a mental health institution. See Nahrvani v.
Gonzales, 399 F.3d 1148, 1154 (9th Cir. 2005).
Furthermore, Clemente’s claim of a well-founded fear of future persecution
on account of membership in his claimed particular social group (“PSG”)—
indigent Mexicans without familial support and with chronic and perceptible
mental illness involving psychosis and with mental disabilities—fails for three
reasons.
First, Clemente’s claimed PSG is not socially distinct. The record does not
show that Mexican “society in general perceives, considers, or recognizes persons
sharing the[se] particular characteristic[s] to be a group.” See Matter of W-G-R-,
26 I. & N. Dec. 208, 217 (BIA 2014), vacated in part on other grounds sub nom.
Reyes v. Lynch, 842 F.3d 1125 (9th Cir. 2016).
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Second, substantial evidence supports the BIA’s determination that
Clemente is not a member of his claimed PSG because he has familial support such
that he will not be institutionalized. Clemente contends that he will be
institutionalized due to an inability to afford medication that controls his mental
illness. Clemente, however, failed to establish this inability, because he did not
introduce evidence regarding the price of his medication, Clemente’s brother
testified that he would provide some financial support, and Clemente can work and
earn money while medicated.
Third, substantial evidence supports the BIA’s determination that Clemente
will not be harmed on account of his membership in his claimed PSG if returned to
Mexico. For asylum claims, membership in a PSG must be “one central reason”
for a persecutor to harm an applicant. 8 U.S.C. § 1158(b)(1)(B)(i).1 Here,
Clemente complains of squalid institutional conditions that cause harm to all
institutionalized persons, including many persons outside of his claimed PSG.
1
The BIA implicitly applied the wrong legal standard to Clemente’s
withholding of removal claim by finding that this claim was precluded by the
failure of Clemente’s asylum claim. Although the evidentiary standard is higher in
the withholding of removal context—requiring an applicant to justify relief by a
preponderance of the evidence, rather than by showing a well-founded fear of
future persecution—the legal standard is lower for establishing that harm is
imposed on account of membership in a PSG: an applicant for withholding of
removal merely needs to show that membership in a PSG is “a reason” rather than
a “central reason” for imposing harm on the applicant. Barajas-Romero v. Lynch,
846 F.3d 351, 360 (9th Cir. 2017). Although the BIA applied the wrong legal
standard, we need not remand because Clemente’s withholding of removal claim
fails due to the other reasons stated above.
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This forecloses any conclusion “that the group members were intentionally
targeted.” Mendoza-Alvarez v. Holder, 714 F.3d 1161, 1165 (9th Cir. 2013).
Accordingly, substantial evidence supports the BIA’s determination that
membership in Clemente’s claimed PSG would not be a “central reason” that the
Mexican government would harm him.
Substantial evidence supports the BIA’s denial of CAT relief. To qualify for
such relief, a petitioner must show, among other things, that it is “more likely than
not that the [petitioner] will be tortured upon return to his homeland[.]” Garcia-
Milian v. Holder, 755 F.3d 1026, 1033 (9th Cir. 2014) (quoting Tamara-Gomez v.
Gonzales, 447 F.3d 343, 351 (5th Cir. 2006)).
First, substantial evidence supports the BIA’s determination that Clemente
failed to show that it was more likely than not that he would be unable to obtain
medication in Mexico. Specifically, Clemente’s brother promised to provide some
financial support, Clemente did not establish the cost of his medication, and
Clemente is able to work and earn money if he remains medicated. Additionally,
despite Clemente’s argument to the contrary, the record does not indicate that one
must be institutionalized to receive medication. Therefore, Clemente did not show
that he would be unable to obtain medication in Mexico.
Second, substantial evidence supports the BIA’s determination that
Clemente failed to show that it was more likely than not that he would be
4 16-73082
institutionalized if he was unable to obtain medication, given that only 10% of
Mexicans with mental illnesses receive any form of mental health treatment, let
alone become institutionalized.
Third, substantial evidence supports the BIA’s determination that Clemente
failed to show that it was more likely than not that he would be overmedicated and
physically restrained if institutionalized in Mexico.2 The record indicates that only
36% of institutions utilize prolonged physical restraints, and that overmedication is
widespread at half of Mexico’s mental health institutions. Nothing suggests that a
majority of patients within those institutions are subject to such practices. Thus,
Clemente does not adequately allege facts indicating that he has “a chance greater
than fifty percent that he will be tortured” if returned to Mexico. Hamoui v.
Ashcroft, 389 F.3d 821, 827 (9th Cir. 2004) (citing Khup v. Ashcroft, 376 F.3d 898,
907 (9th Cir. 2004)).
Fourth, substantial evidence supports the BIA’s determination that the
Mexican government does not specifically intend to inflict severe pain or suffering
on its institutionalized population. See Villegas v. Mukasey, 523 F.3d 984, 988–89
2
Clemente contends, for the first time on appeal and in a reply brief,
that he will also be subject to psychosurgery and electroconvulsive therapy in a
torturous manner. He has waived this argument. See Smith v. Marsh, 194 F.3d
1045, 1052 (9th Cir. 1999). In any event, the argument fails on the merits, because
Clemente does not adequately explain why it is more likely than not that these
exceptionally uncommon practices will be used on him.
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(9th Cir. 2008).3 Rather, “the record indicates that the Mexican government has
given human rights organizations free access to its mental institutions, and is
taking steps to improve conditions,” even as serious issues continue to persist. Id.
at 989.
PETITION DENIED.
3
While the overall determination of whether an act is torturous is a
matter of law to be reviewed de novo, an inference that an actor specifically
intends to cause severe pain or suffering is a matter of fact to be reviewed under
the substantial evidence standard. See Ridore v. Holder, 696 F.3d 907, 915–17
(9th Cir. 2012) (citing Kaplun v. Attorney Gen., 602 F.3d 260, 271 (3d Cir. 2010)).
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