Victor Perez-Rodriguez v. William P. Barr ( 2020 )

United States Court of Appeals
For the Eighth Circuit
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No. 18-3269
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Victor Perez-Rodriguez
lllllllllllllllllllllPetitioner
v.
William P. Barr, Attorney General of the United States
lllllllllllllllllllllRespondent
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Petition for Review of an Order of the
Board of Immigration Appeals
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Submitted: October 18, 2019
Filed: March 9, 2020
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Before SMITH, Chief Judge, GRUENDER and BENTON, Circuit Judges.
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SMITH, Chief Judge.
Victor Perez-Rodriguez entered the United States from Mexico at an unknown
date and was eventually detained. The Department of Homeland Security (DHS)
sought to remove him. He does not contest his removability. Instead, he seeks asylum,
claiming he belongs to a particular social group. This group consists of “individuals
with schizophrenia who exhibit erratic behavior” (“the group”). This petition for
review turns on whether Mexico’s government persecutes individuals because they
belong to that group.
The Board of Immigration Appeals (BIA) denied Perez-Rodriguez’s asylum
request because it found no connection between the alleged persecution and the
group. Applying a substantial evidence standard, we conclude that the record is not
so substantial “that a reasonable factfinder would have to conclude that” Mexico’s
government targets individuals on account of group membership. Garcia-Moctezuma
v. Sessions, 879 F.3d 863, 869 (8th Cir. 2018) (cleaned up). Consequently, we deny
the petition.
I. Background
After an immigration judge (IJ) sustained a charge of removability,
Perez-Rodriguez submitted an asylum application. To support his application,
Perez-Rodriguez introduced evidence regarding conditions in Mexico’s mental-health
facilities. The parties agree that those conditions are markedly substandard. Patients
are referred to as the abandanodos—the abandoned ones. According to uncontested
evidence, individuals are often bound, sometimes for extended periods, to prevent self
harm. Others are left in isolation. Some patients were observed sitting in their own
bodily wastes. Further, the record contains stories of patients suffering rape and abuse
at the hands of medical personnel.
The Mexican government has long been aware of these conditions.
Perez-Rodriguez argues that the Mexican government allows those conditions to
persist “because it believes its methods are consistent with the [population’s] view
of the mentally ill.” Pet’r’s Br. at 29.
The IJ granted Perez-Rodriguez’s asylum request. The BIA reversed,
concluding that Perez-Rodriguez had failed to show (1) that his fear of persecution
met the standard of objective reasonableness because family members could provide
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him care and (2) that he would be institutionalized if returned. On remand, the IJ
determined that Perez-Rodriguez’s evidence established that the Mexican government
would place him in a mental-health institution. Further, she found that the conditions
within those institutions constituted government persecution. The IJ then went on to
discuss the physical restraints used with many of the patients. She noted that
mental-health workers were motivated by a desire to overcome the patients’ erratic
behavior—one of the group’s defining characteristics. Thus, the IJ again granted
Perez-Rodriguez’s asylum request.
The BIA found that the IJ clearly erred in finding that Perez-Rodriguez “would
be subjected to persecutory harm on account of his particular social group
membership if detained in a mental health facility.” Pet’r’s Add. at 3 (emphasis
added). Specifically, the BIA found that there was insufficient evidence to establish
“that the health care workers would be motivated to harm the respondent on account
of his status as a member of [the] proposed social group.” Id. at 4. The BIA
acknowledged that some patient injuries resulted from individual criminal actions of
their particular facility worker. However, it concluded that medical workers, in
general, constrained individuals in an effort to protect them, not target them. Further,
patients often received poor care due to a severe lack of resources. As a result, the
BIA found that the IJ clearly erred in finding that the record reflected “a persecutory
motive” on the part of the government of Mexico. Id. Perez-Rodriguez then petitioned
this court for review.
II. Discussion
Before this court, Perez-Rodriguez argues that the BIA erred in reversing the
IJ’s finding that he has a well-founded fear of future persecution due to the
characteristics of his mental illness. Applying a clearly erroneous standard, see Jima
v. Barr, 942 F.3d 468, 473 (8th Cir. 2019), the BIA found that the evidence failed to
establish a persecutory motive for the conditions present in Mexican mental
institutions. We discern no error in this conclusion.
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Perez-Rodriguez can qualify for asylum if he “is unwilling to return to [his]
country of nationality ‘because of . . . a well-founded fear of persecution on account
of . . . membership in a particular social group.’” Corado v. Ashcroft, 384 F.3d 945,
947 (8th Cir. 2004) (per curiam) (quoting 8 U.S.C. § 1101(a)(42)(A)). “To qualify for
asylum, [Perez-Rodriguez] must show that a protected ground ‘was or will be at least
one central reason for persecuting [him].’” Garcia-Moctezuma, 879 F.3d at 867
(quoting 8 U.S.C. § 1158(b)(1)(B)(I)). “Under the one central reason nexus standard,
a protected ground need not be the sole reason for persecution, but the protected
ground cannot be incidental or tangential to the persecutor’s motivation.” Id. at 868
(internal quotations omitted).
“We review the agency determination that an alien is not eligible for asylum”
under “the deferential substantial evidence standard.” Juarez Chilel v. Holder, 779
F.3d 850, 853 (8th Cir. 2015) (internal quotations omitted). “Thus, we will reverse
only if we determine that a reasonable factfinder would have to conclude that”
Perez-Rodriguez’s group membership “actually and sufficiently motivated his
persecutors’ actions.” Garcia-Moctezuma, 879 F.3d at 869 (internal quotations
omitted).
Based on the record before us, we hold that a reasonable factfinder would not
have to conclude that group membership actually and sufficiently motivated the
Mexican government’s acts or inaction toward the group. As in all asylum cases, the
record must show that the persecutor was acting “on account of” protected status. The
BIA concluded that the tragic stories cited by Perez-Rodriguez do not establish such
a persecutory motive. Instead, it found other factors led to the alleged mistreatment.
Specifically, as the BIA noted, economic considerations contribute
substantially to the regrettable institutional conditions. In so concluding, the BIA
relied on Mendoza-Alvarez v. Holder, 714 F.3d 1161 (9th Cir. 2013) (per curiam).
There, the Ninth Circuit upheld the BIA’s determination that an insulin-dependent
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diabetic did not qualify for asylum from a country that lacked an insulin supply. Id.
at 1164–65. The court noted that “[i]f someone suffers harm on grounds that are
associated with group membership but also apply to many others, then the harm is not
because of membership in a particular social group and there is no basis to conclude
that the group members were intentionally targeted.” Id. at 1165. It went on to say
that, “[a]s the BIA and the courts have recognized, an inadequate healthcare system
is not persecution and is not harm inflicted because of membership in a particular
social group.” Id. (citing Ixtlilco-Morales v. Keisler, 507 F.3d 651, 655–56 (8th Cir.
2007) (“The BIA further concluded that [the petitioner] failed to establish that
inadequacies in health care for HIV-positive individuals in Mexico was an attempt
to persecute those with HIV. Our review of the record convinces us that these
conclusions are supported by substantial evidence.”)).
Perez-Rodriguez argues that the record only minimally supports a lack of
resources. He attempts to distinguish this case from Mendoza-Alvarez. He argues that
the alleged group in Mendoza-Alvarez was too amorphous, but his is not. This
argument fails. Perez-Rodriguez’s expert testified that Mexican officials attribute the
lack of improvement in their mental-health institutions to economic considerations.
Further, his exhibits indicate that Mexico “spends less on its entire mental health
system than it takes to operate just one US hospital.” Pet’r’s App. at 324. In
Raffington v. INS, we noted that an asylum seeker’s “medical provider’s concern and
the Pan American Health Organization’s report that Jamaica devotes limited resources
to treating those who are mentally ill do not establish a pattern of persecution on
account of this disability.” 340 F.3d 720, 723 (8th Cir. 2003). So too here. Mexico’s
inability to adequately fund mental-health institutions does not establish that the
government has a pattern of persecuting individuals with a specific form of
schizophrenia. Rather, like Mendoza-Alvarez, it shows a lack of resources and
insufficient political commitment.
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Mendoza-Alvarez did involve more generalized concerns than those at issue
here. Nonetheless, the Ninth Circuit’s rationale regarding the absence of nexus
between the conditions and a persecutory motive applies. When a harm affects many
other persons who do not belong to the alleged social group, the alleged persecutor
is much less likely to be targeting the group based on its identity. See
Mendoza-Alvarez, 714 F.3d at 1165 (“If someone suffers harm on grounds that are
associated with group membership but also apply to many others, then the harm is not
because of membership in a particular social group and there is no basis to conclude
that the group members were intentionally targeted.”). Here, all individuals entering
Mexico’s mental-health institutions face the same conditions. The one additional
condition that individuals who exhibit erratic behavior might face is physical
restraint. But there is no evidence that the government mandates that restraint.
Instead, as the BIA noted, the evidence from Perez-Rodriguez’s expert indicates that
healthcare workers generally restrain patients who exhibit erratic behavior to prevent
them from harming themselves and others.
Political considerations also affect institutional conditions. Perez-Rodriguez’s
expert stated that the institutions’ staffs are unionized, so any solutions that decrease
the number of these positions run into opposition. Further, contrary to
Perez-Rodriguez’s position, the record shows that the Mexican government has
attempted to address the situation. Perez-Rodriguez’s expert indicated that he
attended a conference where speakers from the Mexican government noted the need
for reform. Also, the Mexican government attempted to pass a law to improve
conditions by moving individuals from large, single-building facilities to small group
houses. Although the expert did not believe that this would actually remedy the
circumstances in the long run, the record indicates that similar measures were
effective and preferable to patients.
In summary, the evidence that the Mexican government persecutes certain
mentally-ill citizens on account of group membership is not so substantial as to
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compel remand. Perez-Rodriguez argues that case law and a subsequent BIA decision
counsel otherwise. He cites to Temu v. Holder, 740 F.3d 887 (4th Cir. 2014). There,
a mentally disabled Tanzanian was abused in a hospital and prison because of his
disability. Id. at 889–90. In the hospital and prison, he was referred to as mwenda
wazimu, demon possessed, a common pejorative for the mentally disabled in
Tanzania. Id. at 890. As his symptoms worsened, so did the nurses’ treatment. Id. In
the prison, he was beaten and told “this is how we treat people who are mentally ill
like you.” Id. Given the cultural context and harm suffered by the defendant, the court
overruled the BIA’s denial of asylum. Id. at 891–92.
Temu is distinguishable. Although some institutionalized individuals in Mexico
suffer greatly, the record does not indicate that the government or health care workers
intentionally mistreat patients because of their mental-health conditions. Further,
unlike the petitioner in Temu, Perez-Rodriguez has not suffered any past harm on
account of his disability, and there is no indication that anyone has verbally
threatened him or a similarly situated individual because of their mental illness.
Perez-Rodriguez also cites a recent, unpublished BIA decision that found a
mentally impaired individual faced likely persecution in Mexico’s mental-health
institutions because of his social group. See Pet’r’s Add. at 49–51 (citing In re M.P.R.
(BIA Nov. 14, 2018) (unpublished)). The same panel member that decided Perez-
Rodriguez’s case decided that case. Perez-Rodriguez argues that the inconsistency
between the two opinions should lead us to “conclude that . . . a reasonable
adjudicator would have to reach the opposite conclusion to the one reached” in his
case. Pet’r’s Br. at 41.
In re M.P.R. is an unpublished BIA decision. BIA regulations indicate that
published, precedential decisions “serve as precedents in all proceedings involving
the same issue or issues,” 8 C.F.R. § 1003.1(g)(3), not unpublished opinions.
Although we have noted that unpublished BIA decisions are due some amount of
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deference when offering legal interpretations, see Godinez-Arroyo v. Mukasey, 540
F.3d 848, 850–51 (8th Cir. 2008), nothing in our case law indicates that we have
extended the same deference to issues of fact. This would be especially true where the
decision contains little analysis. When reviewing factual matters, this court must
consider “the record as a whole,” Feleke v. INS, 118 F.3d 594, 598 (8th Cir. 1997),
and immigration cases often have “voluminous record[s].” Rodriguez-Quiroz v.
Lynch, 835 F.3d 809, 817 (8th Cir. 2016). In contrast, In re M.P.R. is three pages in
length with roughly one page of relevant discussion. See Pet’r’s Add. at 49–51. The
absence of well-considered analysis diminishes substantially the persuasive use of In
re M.P.R. Therefore, we decline to give In re M.P.R. controlling deference.
In short, under a substantial evidence review, we conclude that the BIA did not
err in concluding that Perez-Rodriguez failed to establish that he would be subjected
to persecution on account of his membership in the alleged social group.
III. Conclusion
For the foregoing reasons, we deny Perez Rodriguez’s petition.
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