[00:00:00] Speaker 05:
And we'll hear first from Ms.

[00:00:03] Speaker 05:
Bolt.

[00:00:05] Speaker 05:
You may proceed.

[00:00:07] Speaker 00:
Good morning, Your Honors, and may it please the Court.

[00:00:09] Speaker 00:
Brenda Bolt on behalf of Petitioner Jose Garcia Aguilar.

[00:00:12] Speaker 00:
I'd like to discuss with you today Jose's applications for relief under the Convention Against Torture.

[00:00:17] Speaker 00:
And my colleague, Alvaro Huerta, will be discussing the agency's particularly serious crime determination.

[00:00:23] Speaker 00:
I aim to reserve four minutes of my time for rebuttal.

[00:00:25] Speaker 05:
You get closer to the microphone, I'm having a little trouble hearing her speak up.

[00:00:29] Speaker 00:
Is this better?

[00:00:30] Speaker 05:
Yes.

[00:00:31] Speaker 00:
Thank you.

[00:00:32] Speaker 00:
Jose is a Mexican national with two young U.S.

[00:00:34] Speaker 00:
citizen sons who fears torture by police and mental health institutions.

[00:00:39] Speaker 00:
I'd like to discuss first Jose's risk of torture in mental health institutions alone.

[00:00:44] Speaker 00:
The agency made positive findings on every element of Jose's claim except for likelihood, which it rejected without grappling with Jose's documentary and testimonial evidence that in 2018 he was arrested as a result of his mental health symptoms and his expert's opinions that the same thing will happen in Mexico but end in his torture.

[00:01:04] Speaker 00:
This court in Castillo v. Barr held that the agency may not silently disregard or reject expert testimony without stating the record why that testimony was insufficient to establish the probability of torture.

[00:01:17] Speaker 00:
Here, Ms.

[00:01:17] Speaker 00:
Rodriguez was qualified as a country conditions expert and opined at AR 640 that Jose would be unable to obtain his medication and institutionalized.

[00:01:27] Speaker 00:
The board conceded that the immigration judge never discussed Ms.

[00:01:30] Speaker 00:
Rodriguez's testimony in her analysis.

[00:01:32] Speaker 03:
Did Ms.

[00:01:33] Speaker 03:
Rodriguez provide testimony as to the availability and cost of the specific medication that your client needs?

[00:01:43] Speaker 00:
No, Your Honor, she provided testimony as to the barriers that Jose would face in obtaining medication, including the fact that clinics were few and far between.

[00:01:53] Speaker 00:
He would have to be accompanied by a family member and the medication is often not available at these clinics.

[00:02:00] Speaker 03:
And did she provide any testimony about the specific outpatient mental health facilities available in Michoacan?

[00:02:07] Speaker 00:
No, Your Honor.

[00:02:08] Speaker 00:
She stated on the record that she wasn't able to travel to Michoacan because of safety concerns.

[00:02:13] Speaker 03:
I suppose my question then is how can her testimony have been either highly probative or dispositive of the issues in this case when her testimony wasn't very specific about the issues in this case?

[00:02:28] Speaker 00:
Your Honor, Ms.

[00:02:29] Speaker 03:
Rodriguez was qualified as a country conditions expert, and the fact that she wasn't able to travel to Michoacan because of safety concerns hardly disqualifies her testimony as ... Does it contradict the- I'm not saying that it would disqualify her testimony, but how is her testimony really probative on the issue of whether he'll be able to obtain medication or treatment?

[00:02:56] Speaker 00:
This court in Aguilar-Ramos held that the expert does not need to have personal experience to make her opinions and may rely on hearsay.

[00:03:04] Speaker 00:
So Ms.

[00:03:05] Speaker 00:
Rodriguez's opinions could have been based on what she has heard about clinics in Michoacan.

[00:03:10] Speaker 04:
Why then isn't the immigration judge entitled to make a choice and credit the other evidence about the new medical program coming online, the specific availability of Abilify?

[00:03:25] Speaker 04:
Again, it's not that the judge ignored the expert.

[00:03:31] Speaker 04:
Why can the judge not credit that other evidence instead?

[00:03:36] Speaker 00:
She is, Your Honor, but then in the record, she needed to explain those reasons.

[00:03:40] Speaker 00:
Here, the only country conditions evidence she cites the article does not directly refute Ms.

[00:03:46] Speaker 00:
Rodriguez's testimony.

[00:03:48] Speaker 00:
And without providing her reasons for rejecting Ms.

[00:03:50] Speaker 00:
Rodriguez's testimony, this court has no way to evaluate whether those reasons fall in line with this precedent.

[00:03:55] Speaker 05:
But we also have a lot of case law that says that

[00:03:59] Speaker 05:
The IJ doesn't need to tick through every item of evidence that's relevant to the point.

[00:04:05] Speaker 05:
The IJ was certainly aware of her testimony because the IJ put a lot of weight on the testimony for other aspects of the standard.

[00:04:14] Speaker 05:
But on this specific issue of whether he would, as a practical matter, have access to this specific medication, it's not mentioned, but isn't it

[00:04:27] Speaker 05:
more reasonable to say it wasn't mentioned because it wasn't particularly probative or helpful.

[00:04:34] Speaker 05:
And why does there have to be, consistent with our rule, you don't have to mention every item, why is it your view it had to be mentioned?

[00:04:45] Speaker 00:
Your Honor, that's because Ms.

[00:04:46] Speaker 00:
Rodriguez's opinion was specific to Jose.

[00:04:49] Speaker 00:
She knew about his family situation and she opined directly on his likelihood of obtaining his medication.

[00:04:56] Speaker 00:
And there is an exception in the case law when an expert opines specifically to an applicant.

[00:05:04] Speaker 00:
If you have no more questions on that point, I'd like to turn quickly to the agency's second finding, which fails to grapple with highly probative potentially dispositive evidence, documentary and testimonial evidence.

[00:05:15] Speaker 00:
The agency misstated the record when it found that Jose did not allege that his prior symptoms had resulted in issues with authorities.

[00:05:23] Speaker 00:
This misstatement is an indication that the agency ignored Carolina and Jose's credible testimony that the entire reason he was in proceedings was because he was arrested as a result of his mental health symptoms.

[00:05:36] Speaker 04:
On this point, just to clarify, the briefing hints at maybe a multiple source theory, but are you contending today that you're still relying, you're staying with a single source theory that what we're looking at is a single chain of events from the unavailability of the medication?

[00:05:57] Speaker 04:
to the erratic behavior drawing the attention of the authorities to likely torture in a mental institution.

[00:06:04] Speaker 04:
Is that right?

[00:06:05] Speaker 00:
No, Your Honor.

[00:06:06] Speaker 04:
So where do you discuss in, where should we look in the record to find the development of a multiple source theory?

[00:06:14] Speaker 00:
Under the regulations, the agency is required to consider all evidence relevant to the likelihood of future torture, including testimony and country conditions evidence.

[00:06:24] Speaker 04:
Sure, but in which instance, I guess,

[00:06:28] Speaker 04:
cut to this particular case, so where is the risk of torture outside of a mental institution at the end of the chain of the first thread established in the record, or where was that developed in the record?

[00:06:42] Speaker 00:
I can give you a few examples.

[00:06:44] Speaker 00:
At AR 1062, an Amnesty International report discusses Jose's risk of torture by police at the time of arrest and detention.

[00:06:53] Speaker 00:
And at AR 1370, another report talks about the risk of torture in jails and prisons.

[00:07:00] Speaker 05:
But these large country condition reports are put in, and then the immigration courts rely on counsel to tell them the parts that are relevant to the case before them.

[00:07:11] Speaker 05:
Where in your brief to the BIA did you present and develop an argument that due to his mental health condition, he was likely to be tortured by police apart from police turning him over to the mental health system?

[00:07:32] Speaker 00:
At AR-73, we describe Jose's risk as by torture and police.

[00:07:38] Speaker 00:
And we argue that the immigration judge ignored evidence relevant to that risk.

[00:07:43] Speaker 05:
Well, I'm looking at your creation of the DIA.

[00:07:51] Speaker 05:
And the section on likelihood of torture begins on AR-37.

[00:07:57] Speaker 05:
And there is, and this is the sentence you quote in your brief, Jose asserted a risk of future torture by Mexican mental health care workers and by Mexican law enforcement.

[00:08:07] Speaker 05:
And you would quote that sentence and italicize the latter part.

[00:08:11] Speaker 05:
But the remainder of the argument is entirely about the mental health system.

[00:08:16] Speaker 05:
There is nothing that develops this Mexican law enforcement, nothing.

[00:08:20] Speaker 05:
So how is that

[00:08:22] Speaker 05:
a sufficient presentation or exhaustion of that issue to the BIA that we can fault the BIA for not treating that as if it's a separate multi-source theory.

[00:08:33] Speaker 00:
The agency did state that it was considering Jose's risk of torture in the aggregate.

[00:08:38] Speaker 00:
And this court, in a federal appendix case at Chichovie Bar, has held that the emphasis on one potential ground of torture does not mean that the applicant has waived other grounds.

[00:08:54] Speaker 05:
But you have to assert the ground.

[00:08:55] Speaker 05:
Where was the explanation or anything that said about

[00:09:01] Speaker 05:
Here's the risk from the Mexican law enforcement before he gets to the mental hospital.

[00:09:06] Speaker 05:
Here's what's going to happen.

[00:09:07] Speaker 05:
Where is that argument in the BIA?

[00:09:09] Speaker 00:
The agencies, the BIA did still need to consider the country conditions evidence, Your Honor.

[00:09:16] Speaker 00:
And I'd like to quickly before, unless Your Honor has more questions on that point, turn, we're already discussing the aggregation analysis, but I'd like to turn to the agency's application of a heightened burden.

[00:09:29] Speaker 00:
Under a matter of JFF,

[00:09:33] Speaker 00:
This court, or the agency recast Jose's claim as predicated on a hypothetical chain of events, and then required him to show that each link in that chain of events would or will occur.

[00:09:43] Speaker 00:
That's on the plain language of the decision, and this court has held that on its face, that is error.

[00:09:52] Speaker 05:
Isn't that a colloquial way?

[00:09:54] Speaker 05:
If we say that something, it's more probable than not that something will occur.

[00:10:00] Speaker 05:
Isn't that colloquially similar to saying that it will occur, you have to show that it will occur?

[00:10:07] Speaker 00:
Your Honor, the stakes are too high in these kinds of cases for the agency to take colloquialisms.

[00:10:11] Speaker 00:
And the idea that as the government asserts, the agency is allowed to use shorthand is novel.

[00:10:18] Speaker 00:
Rather, the precedent of this court shows that we look to the plain language of the agency's decisions to decide what burden it held the applicant to.

[00:10:27] Speaker 00:
And here, the use of would or will shows that it required Jose to prove to a near certainty that he would be tortured.

[00:10:37] Speaker 00:
And I'd like to give the floor to my colleague, Álvaro Huerta.

[00:11:01] Speaker 01:
Good morning, Your Honors.

[00:11:02] Speaker 01:
Álvaro Huerta for the José Roberto García Aguilar.

[00:11:08] Speaker 01:
Your honor, the main issue on the PSC determination is that the board, by crediting Carolina's testimony that she was injured, committed improper fact-finding.

[00:11:21] Speaker 01:
Instead of determining whether the IJ's credibility determination on that point was clearly erroneous, the board instead posited that testimony as true.

[00:11:30] Speaker 01:
And that was testimony that the IJ had found implausible when weighed against other recorded evidence.

[00:11:36] Speaker 01:
By doing so, the board improperly took on the IJ's role as fact-finder.

[00:11:42] Speaker 05:
What we're asking here is... Isn't what the BIA did, because the BIA was addressing a claim that the IJ's handling of the credibility determination was defective.

[00:11:55] Speaker 05:
isn't what the board did similar to what courts do on summary judgment all the time, which is say, well, assuming that that evidence is true, so you construe it in the light most favorable, take it as true, it still doesn't add up.

[00:12:10] Speaker 05:
Why is, why, because it didn't seem like the board was actually weighing and making an actual finding that it was credible.

[00:12:17] Speaker 05:
It just, we don't need to resolve this issue about whether the credibility determination is defective.

[00:12:23] Speaker 05:
because even if we were to reach that conclusion, here's what would follow, and it doesn't work.

[00:12:30] Speaker 01:
But I think that doesn't work here, Your Honor, because what the IJ did was different.

[00:12:34] Speaker 01:
The IJ said, these two sets of facts are implausible when taken together, so I'm going to discount Carolina's testimony as not being injured and find that there are other facts that show that she was.

[00:12:45] Speaker 01:
For example, the IJ said that the nature of the crime must mean that she was traumatically injured.

[00:12:51] Speaker 01:
the BIA, by then crediting that testimony, was taking those facts as true and weighing them against these other facts.

[00:12:58] Speaker 01:
And that is fundamentally, quintessentially fact-finding endeavor that the IJ had found a very different way.

[00:13:07] Speaker 01:
So the BIA was using a different set of facts to come to its conclusion than what the IJ used.

[00:13:12] Speaker 05:
What do you view as the facts found by the BIA that differed from the facts found by the IJ?

[00:13:18] Speaker 01:
So what the BIA did was find if taking Carolina's testimony is true that she was not injured, that was a new fact that the IJ had discredited.

[00:13:29] Speaker 01:
So the IJ had said, I cannot believe that that can be true, that she was not injured, if I'm going to also believe that the nature of the crime and the elements show that she was.

[00:13:40] Speaker 01:
So the BIA was importing that fact that she was injured into its analysis and then, as even the government argues, weighing that evidence against the other record evidence and coming to its own PSC determination.

[00:13:53] Speaker 01:
That was improper.

[00:13:54] Speaker 01:
We don't know if the IJ had come out the other way on Carolina's testimony if she would have also said,

[00:14:01] Speaker 01:
In fact, she had said this is material to her decision.

[00:14:05] Speaker 01:
If I find that she's credible, then I can't find these other facts because I've decided that she was injured.

[00:14:11] Speaker 01:
So the BI did a completely different thing than what the IJ would have done potentially if she had come out the other way on her credibility determination.

[00:14:22] Speaker 01:
Your Honor, unless there are any other questions, I do want to reserve the time for my colleague for a bottle.

[00:14:27] Speaker 01:
Thank you.

[00:14:33] Speaker 05:
Now from Mr. Sheffield.

[00:14:44] Speaker 05:
Hi, you may proceed.

[00:14:46] Speaker 02:
Good morning, Your Honors, and may it please the court, Fred Sheffield, on behalf of the respondent.

[00:14:51] Speaker 02:
We're asking that this court deny the petition for review because

[00:14:54] Speaker 02:
On the first matter, the particularly serious crime, the agency properly acted within its discretion in determining that petitioner's conviction for willful infliction of a corporal injury on the mother of his child in this case was a particularly serious crime, such that he is not eligible for asylum and withholding of removal.

[00:15:11] Speaker 02:
And second, substantial evidence supports the agency's determination that petitioner is not more likely than not to be tortured in Mexico for reasons related to his mental health.

[00:15:21] Speaker 02:
With the court's permission, I'd like to first touch on the PSC issue, the particularly serious crime issue that opposing counsel just discussed.

[00:15:32] Speaker 02:
We would note that Petitioner is not broadly challenging the board's weighing of factors.

[00:15:36] Speaker 02:
Rather, his argument is a very narrow one.

[00:15:38] Speaker 02:
He claims that the board engaged in improper de novo review of IJ fact finding.

[00:15:44] Speaker 02:
We believe that Petitioner's argument is really based on a misunderstanding of the board's decision.

[00:15:48] Speaker 02:
The board did not overrule the IJ's fact finding.

[00:15:52] Speaker 02:
It did not make a finding as to whether Galvin's testimony could coexist with other evidence.

[00:15:58] Speaker 02:
What the board says was, we don't really even need to reach this issue because regardless of whether you credit all the facts presented by petitioner, it still adds up to the same result.

[00:16:11] Speaker 02:
It still adds up to a particularly serious crime.

[00:16:12] Speaker 05:
What were the facts the BIA assumed, argue, and know

[00:16:19] Speaker 05:
with respect to the injury question in making its de novo review of particularly serious crime?

[00:16:28] Speaker 02:
As I read the board's decision, really the sole fact was whether one could credit, one could regard as credible Ms.

[00:16:37] Speaker 02:
Galvin's testimony that she was not injured.

[00:16:40] Speaker 02:
So the way I read the board's decision is

[00:16:43] Speaker 02:
The board's saying one can imagine two sets of fact findings.

[00:16:47] Speaker 02:
One includes, as the IJ found, Ms.

[00:16:50] Speaker 02:
Galvin was in pain.

[00:16:51] Speaker 02:
She fell to the ground.

[00:16:53] Speaker 02:
She was taken to the hospital.

[00:16:56] Speaker 02:
And but, you know, under the IJ's version of finding you don't credit as credible her specific statement that she was not injured.

[00:17:04] Speaker 02:
The board says, OK, we can look at all those same facts.

[00:17:08] Speaker 02:
She was in pain.

[00:17:09] Speaker 02:
She fell down.

[00:17:10] Speaker 02:
She was taken to the hospital.

[00:17:12] Speaker 02:
And we can add the fact that the IJ found was not

[00:17:18] Speaker 02:
consistent with the other evidence.

[00:17:20] Speaker 02:
We can credit her claim that she was quote not injured in her view and it doesn't matter.

[00:17:25] Speaker 02:
It still adds up to the same conclusion.

[00:17:28] Speaker 05:
What do you do with the fact that one of the statutory elements of conviction is that she was injured?

[00:17:35] Speaker 02:
Right.

[00:17:35] Speaker 02:
I think that only further, I mean, that's technically a different part.

[00:17:39] Speaker 05:
That was one of the IJ's main reasons for finding or not.

[00:17:44] Speaker 02:
Right.

[00:17:45] Speaker 02:
Right.

[00:17:46] Speaker 02:
And that's, that certainly is kind of a point in the IJ's favor for why the credibility determine, why the credibility determination might stand.

[00:17:57] Speaker 02:
But the board, I don't think, even reached that issue, because the board said, even if you were to somehow credit the testimony that she was not injured, I think we cited to Ming Dai, which is a Supreme Court case, that even credible testimony may not establish the fact that it's going to.

[00:18:16] Speaker 02:
And I think that's important here.

[00:18:18] Speaker 02:
I think the board was operating with an assumption that Ms.

[00:18:22] Speaker 02:
Galvin may have been

[00:18:25] Speaker 02:
Subscribing yourself as not being injured could mean a lot of different things to a lot of different people.

[00:18:31] Speaker 02:
And, you know, maybe in her subjective experience, she was not injured, but, and that would still be consistent with the situation where she was in pain.

[00:18:40] Speaker 02:
She was taken to the emergency room.

[00:18:42] Speaker 02:
So from the board's perspective, you can credit Ms.

[00:18:47] Speaker 02:
Galvin's testimony or you can not credit Ms.

[00:18:49] Speaker 02:
Galvin's testimony on whether she was injured.

[00:18:51] Speaker 02:
It all points to the same direction.

[00:18:53] Speaker 02:
I think it should also be noted that it's really not exactly clear what Petitioner's ultimate aim here is in seeking remand on the particular serious crime issue, apart from simply prolonging proceedings.

[00:19:10] Speaker 02:
Again, the board has already determined that even if you take all of the facts as presented by Petitioner and you assume them to be credible, in the board's view, this still amounts to a particularly serious crime.

[00:19:22] Speaker 02:
The most that petitioner could really hope for is remand for some sort of clarification from the agency that all of the facts indeed are being regarded as credible.

[00:19:32] Speaker 02:
But then you'd be left with a situation where the board would, under its de novo authority, weigh the evidence.

[00:19:39] Speaker 02:
And we know how the board would come out on that, because it's already done so.

[00:19:42] Speaker 02:
It's told us all of these facts add up, even assuming they're all credible, add up to a particularly serious crime.

[00:19:49] Speaker 02:
I want to the extent that petitioners brief suggests that weighing of evidence is not appropriate, we would definitely push back on that.

[00:19:59] Speaker 02:
The Perez-Palifax case that we cite on page 32 of our brief is very clear on that.

[00:20:06] Speaker 02:
that it's entirely appropriate in these particularly serious crime determinations for the board to weigh evidence.

[00:20:12] Speaker 02:
Petitioner's reply brief notes that weighing of conflicting evidence is quintessentially a fact-finding endeavor.

[00:20:20] Speaker 02:
But again, the board's decision in this case was not that we are going to weigh conflicting evidence.

[00:20:26] Speaker 02:
The board held that regardless of how one comes down on that issue of whether she was credible or not, under the board's de novo review,

[00:20:36] Speaker 02:
you get to the same spot, a particularly serious crime.

[00:20:40] Speaker 02:
Unless there are any further questions on the particularly serious crime issue, I'll move on to the agency's cap determination.

[00:20:49] Speaker 02:
I want to first start by mentioning Petitioner's argument that the agency did not respond to aggregate sources or law enforcement.

[00:21:01] Speaker 02:
I think the most straightforward way to look at this issue is that the immigration judge explicitly mentioned law enforcement and explicitly mentioned mental health facilities as possible sources of torture.

[00:21:17] Speaker 02:
The immigration judge explicitly mentioned that she was considering the aggregate risk.

[00:21:24] Speaker 02:
In its decision, I think on the last page of the board's decision, you see the board citing to those pages of the immigration judge's decision where the immigration judge mentioned aggregate risk.

[00:21:37] Speaker 02:
We filed a 28-J letter a couple weeks back pointing to a case called Andrade.

[00:21:44] Speaker 02:
And Andrade really rejected, discussed and rejected almost the same argument, it seems, that petitioners making here with respect to aggregate sources.

[00:21:54] Speaker 02:
And in Andrade, the court said, the board's citation to the immigration judge's reference to consideration of aggregate sources was sufficient.

[00:22:05] Speaker 02:
So we believe Andrade really resolves this issue.

[00:22:09] Speaker 05:
There's kind of a tension between two potential ways to read the BIA order.

[00:22:17] Speaker 05:
One is that by referencing all sources, it actually

[00:22:23] Speaker 05:
considered whether or not the cops would torture him before he got to the mental hospital.

[00:22:34] Speaker 05:
But the other way is to say that it's not exhaustive, because the claim is never presented to the BIA.

[00:22:39] Speaker 05:
And therefore, so one seems to posit that they actually resolved it.

[00:22:44] Speaker 05:
And the other says, well, it's not exhaustive, so they never considered it.

[00:22:48] Speaker 05:
Which one of those is the right way to read the BIA?

[00:22:51] Speaker 05:
Because they're not consistent.

[00:22:53] Speaker 02:
I think the second reading is, frankly, the better reading.

[00:22:56] Speaker 02:
The immigration judge really laid out how she understood Petitioner's case.

[00:23:01] Speaker 02:
And it was based on a single series of suppositions that needed to come true, at least be proven by 50%.

[00:23:09] Speaker 05:
So aggregate, when used at the end, means aggregate of all I've been presented by the Petitioner in terms of arguments.

[00:23:17] Speaker 02:
Right.

[00:23:17] Speaker 05:
And I think- We can't really construe that as referring to an argument that wasn't raised.

[00:23:22] Speaker 02:
I think that's correct.

[00:23:24] Speaker 02:
And I think this points ultimately to exhaustion because the immigration judge made it very clear how she understood the case.

[00:23:37] Speaker 02:
petitioner's likelihood of torture would turn on one, losing access to medication, two, behaving so erratically that he would come to the attention of law enforcement and then either be tortured by law enforcement in the process of being picked up by law enforcement or by virtue of being institutionalized.

[00:23:57] Speaker 02:
But either way, the only way you get to either law enforcement or to an institution is you have to, in the petitioner's case at least, lose access to medication or

[00:24:07] Speaker 04:
behave so behave erratically well is that does the record here give us enough to go on with respect to those two pieces I mean with respect to the behaving erratically the whole reason that he was in this process was because his erratic behavior led him to the attention of the authorities and the IJ does not seem to credit that risk

[00:24:29] Speaker 02:
Well, I think it's important to remember the broader context in which removal proceedings were initiated.

[00:24:37] Speaker 02:
The facts are that petitioner got into a car accident in November 2017.

[00:24:45] Speaker 02:
According to Ms.

[00:24:46] Speaker 02:
Galvin's statement, he was okay up until that time.

[00:24:50] Speaker 02:
The petitioner's note in their brief

[00:24:53] Speaker 02:
They claim that there's support in the record for the fact that Petitioner has a long-standing mental illness that dates back to at least 2014 or 2015.

[00:25:02] Speaker 02:
I looked at those citations.

[00:25:04] Speaker 02:
I didn't see it.

[00:25:05] Speaker 02:
What I see is Petitioner appears to have lost his job in November 2017 and became depressed after that and he got into a car accident.

[00:25:15] Speaker 02:
a very serious car accident that resulted in a significant brain injury.

[00:25:20] Speaker 02:
And from that period of November 2017, when the car accident happened, then, and when he returned home to Miss Galvin, their relationship was particularly tumultuous.

[00:25:36] Speaker 02:
They get into an argument, she calls the police, and that's what ends Petitioner

[00:25:43] Speaker 02:
in custody and removal proceedings.

[00:25:45] Speaker 02:
And then he has these experiences of having hallucinations during the first two or three months, primarily, when he was in custody.

[00:25:57] Speaker 02:
a petitioner testified that his experience with hallucinations and seeing shapes and colors was fairly limited to that initial period.

[00:26:06] Speaker 02:
So I think that's an important backdrop to the immigration judge's finding that effectively

[00:26:15] Speaker 02:
While it could be the case that some people in Mexico end up in institutions, the way Petitioner has presented his case, the evidence shows that his conditions do not appear to be so severe as to be one of the people that are at risk.

[00:26:33] Speaker 02:
On that point, we would also note that

[00:26:37] Speaker 02:
tradition's expert miss Rodriguez pointed to homelessness as really kind of a an important cofactor in resulting in institutionalization her the really the the only times that she was asked during her testimony of how it is exactly that people end up in the institution she pointed to homelessness plus acting erratically and if you look at the the

[00:27:00] Speaker 02:
uh, disability rights international report that petitioners highlight frequently on AR 487 and 488.

[00:27:08] Speaker 02:
You see that same, uh, that same notion echoed that in Mexico, uh, there's an unfortunate trend of police picking up homeless people in some cases, whether they're active.

[00:27:18] Speaker 04:
Well, why, why couldn't we expect that result here?

[00:27:23] Speaker 04:
Uh, he's living with family.

[00:27:24] Speaker 04:
He has lost his job and set aside whether the medication is or isn't available.

[00:27:31] Speaker 04:
That requires some capacity to do it.

[00:27:35] Speaker 04:
Why would it not be reasonable to read the record to assume that he would be in that situation where he sent back to Mexico?

[00:27:44] Speaker 02:
you are i think there's just that there's nothing to point to specifically in the record again standard review here is that the record needs to compel a contrary conclusion from that reached by the agency and uh... petitioner does have family he had to leave his parents are both in mexico at least at the time the removal proceedings he has all the siblings he has uh... and samples uh... released uncles and when he asked about his

[00:28:11] Speaker 02:
capacity to live with his people.

[00:28:12] Speaker 02:
He mainly mentioned that these people wouldn't have enough money to pay for his medication.

[00:28:18] Speaker 02:
But he never, I don't think there was ever a claim that he couldn't live with his family members or that he would become homeless.

[00:28:26] Speaker 05:
I mean, I understand the argument as to the link that he'll have access to the medication and therefore won't show the symptoms that would attract the attention of law

[00:28:38] Speaker 05:
enforcement and put him into the mental health system.

[00:28:42] Speaker 05:
But it seems harder to say that he won't have contact with law enforcement if he does develop the system, the symptoms, particularly given that part of the particularly serious crime was that he was likely to be dangerous in the future, so that there seems to be a tension there.

[00:29:03] Speaker 02:
Well, I think the dangerousness that comes with a particularly serious crime is something separate from his mental conditions.

[00:29:10] Speaker 02:
For one thing, as I mentioned before, his mental condition didn't seemingly arise until 2017.

[00:29:16] Speaker 05:
No, but if he doesn't have access to the drugs, and he then develops the symptoms, and then for whatever reason he has a law enforcement contact, then if he's symptomatic at the time,

[00:29:32] Speaker 05:
contact with law enforcement is likely to get him shipped to a mental hospital.

[00:29:39] Speaker 02:
really the only instances when petitioner has had contact with law enforcement here is when he's gotten into an argument with his spouse, Ms.

[00:29:48] Speaker 02:
Galvin.

[00:29:49] Speaker 02:
I'm out of time, but if you'll let me finish.

[00:29:53] Speaker 02:
You've got the one 2015 arrest and then you have another 2015, you have a 2017 call to the police.

[00:30:00] Speaker 02:
And this again was about a

[00:30:03] Speaker 02:
a month or so after a serious brain injury.

[00:30:06] Speaker 02:
So it's entirely reasonable to think that Petitioner was in a particular state of not being well.

[00:30:12] Speaker 02:
But you don't see a perpetual trend of Petitioner encountering police.

[00:30:21] Speaker 02:
That's just absent in the record.

[00:30:23] Speaker 05:
I have one final question, and that is, does the government agree with the immigration judges finding

[00:30:34] Speaker 05:
that the deplorable conditions in Mexican institutions were created for the specific purpose of torturing patients.

[00:30:43] Speaker 05:
Is that the view of the government of the United States towards the government of Mexico?

[00:30:48] Speaker 02:
That was an immigration judge's decision in this case based on this record.

[00:30:55] Speaker 02:
I know that there have been other immigrations to reach the contrary conclusion.

[00:30:59] Speaker 02:
So I think, I mean, that's ultimately a fact-specific determination that immigration judges- But you're not challenging it, if not challenging the actual finding here.

[00:31:07] Speaker 02:
We're not challenging it.

[00:31:08] Speaker 02:
In this case, no, we're not challenging it.

[00:31:09] Speaker 02:
It's a case-by-case determination based on the record.

[00:31:14] Speaker 02:
The immigration judge made that decision in this case.

[00:31:18] Speaker 02:
that finding is the decision of the agency in this case.

[00:31:22] Speaker 02:
But it certainly could be the case that other sets of evidence would produce a contrary result.

[00:31:29] Speaker 02:
Thank you, Your Honor.

[00:31:35] Speaker 05:
We're here.

[00:31:36] Speaker 05:
We're bottled from his boat.

[00:31:44] Speaker 00:
Thank you, Your Honors.

[00:31:46] Speaker 00:
As opposing counsel notes, Ms.

[00:31:47] Speaker 00:
Rodriguez testified that Jose's route to torture in either institutions or by police was not linear.

[00:31:53] Speaker 00:
She testified- It's not what?

[00:31:56] Speaker 00:
Linear.

[00:31:57] Speaker 00:
She testified that Jose may be institutionalized by police for being homeless, acting erratically in public, or committing a crime, even a petty crime, or by family members.

[00:32:11] Speaker 00:
The 2018 arrest that the government refers to actually occurred after Carolina called the police because Jose was refusing to seek treatment.

[00:32:26] Speaker 00:
The medical records that the agency ignored also showed that Jose's symptoms while he was briefly off of his medication during proceedings returned a mere month later.

[00:32:36] Speaker 00:
And after he was before the immigration judge, he went back to emergency services to receive more psychotic, antipsychotic medication.

[00:32:48] Speaker 00:
The Supreme Court has also found that when deciding, when evaluating the lawfulness of

[00:32:54] Speaker 00:
agency's actions, including rejecting the testimony of an expert, it should not look to the ex-post rationale to decide that issue.

[00:33:07] Speaker 00:
So here, the government's arguments that Ms.

[00:33:11] Speaker 00:
Rodriguez's testimony was not highly probative or potentially dispositive are premature when the agency itself did not offer those rationales.

[00:33:18] Speaker 05:
All right.

[00:33:19] Speaker 05:
Thank you, counsel.

[00:33:20] Speaker 05:
The case just argued will be submitted.