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

[00:00:03] Speaker 00:
My name is Isabel Marin, and I am here on behalf of Petitioner Mr. Francisco Lopez Bartolo, and I would also like to introduce his mother, Isabel Bartolo, and his brother, Heriberto Lopez, who are here today.

[00:00:17] Speaker 04:
Are they in the audience?

[00:00:19] Speaker 00:
Yes, Your Honor.

[00:00:20] Speaker 04:
Okay, because usually we don't have people in the well.

[00:00:24] Speaker 04:
Are the people that are sitting on your side lawyers?

[00:00:26] Speaker 00:
Yes.

[00:00:27] Speaker 04:
Okay, thank you.

[00:00:28] Speaker 00:
I would like to reserve three minutes for rebuttal.

[00:00:32] Speaker 00:
The agency in this case made a host of legal errors, but I would like to begin by addressing two of them.

[00:00:38] Speaker 00:
The first is that the asylum and withholding of removal statutes require the agency to make two separate findings before denying relief.

[00:00:48] Speaker 00:
First, that the non-citizen committed a particularly serious crime, and second, that the non-citizen constitutes a danger to the community, that is,

[00:00:57] Speaker 00:
Can I ask you a question?

[00:01:00] Speaker 03:
You argue that Mr. Lopez Bartolo is completely rehabilitated, so he's not going to be a danger to the community.

[00:01:07] Speaker 03:
And then you also argue that he's going to have behavioral problems in a mental institution in Mexico, so he's going to be subject to ECT.

[00:01:17] Speaker 03:
Don't you think those are in tension if he's fully rehabilitated?

[00:01:21] Speaker 03:
Why would he need any behavior modification if he is institutionalized in Mexico?

[00:01:27] Speaker 00:
Your Honor, our position is not inconsistent.

[00:01:29] Speaker 00:
First of all, there has not been a finding on constitutes a danger to the community.

[00:01:34] Speaker 00:
So we haven't presented specific evidence and arguments onto that issue.

[00:01:38] Speaker 00:
And second of all, there's a key difference between Mr. Lopez Bartolos.

[00:01:41] Speaker 00:
But you are contending that he's fully rehabilitated, right?

[00:01:44] Speaker 00:
And that's why it was error not to consider that he's no longer a danger, right?

[00:01:49] Speaker 00:
We think he does not constitute a danger to the community currently, mostly because of his disability, his extreme disability due to his mental illness.

[00:01:59] Speaker 00:
And there's a key difference between his situation in Mexico and here, which is the family support.

[00:02:04] Speaker 00:
And family support would be able to give him the treatment that he needs.

[00:02:09] Speaker 00:
in Mexico without treatment, then that presents a different situation where he would come into the attention of the authorities.

[00:02:20] Speaker 04:
Okay, so let me just to factually get this straight.

[00:02:24] Speaker 04:
He was convicted of manslaughter and a gang enhancement and got 13 years, right?

[00:02:30] Speaker 00:
He pled guilty.

[00:02:34] Speaker 04:
He was charged with murder, and the murder charge was dismissed, and he took a plea bargain, and it looks to me like the judge, having been a former trial judge, it looks to me like he got the low end on the manslaughter charge, because it's a California conviction?

[00:02:52] Speaker 00:
Yes.

[00:02:53] Speaker 04:
Okay, so I think that's the low end of the voluntary manslaughter, but he had the mandatory 10-year gang enhancement.

[00:03:00] Speaker 04:
And so he got 13 years, which you can, in California, usually there's on, if it's a, if it's a determinate sentence, you have the low, the middle, and the high.

[00:03:15] Speaker 04:
So that, I can't, I'm not so great that I can recall, but I think it's something probably like three, six, and 10.

[00:03:23] Speaker 04:
So he could have gotten more time than he got.

[00:03:25] Speaker 04:
But anyway, he got 13 years, he took it.

[00:03:28] Speaker 04:
So now, and he averted having a life sentence over his head, because murder under any circumstances, if you were convicted of it, would be a life sentence, and if he had the gang enhancement.

[00:03:42] Speaker 04:
So he minimized his exposure.

[00:03:47] Speaker 04:
But are you contesting that this is a particularly serious crime?

[00:03:53] Speaker 04:
Yes, Your Honor, we are.

[00:03:54] Speaker 04:
You say that his manslaughter is not?

[00:03:57] Speaker 00:
No, because the agency has to consider his mental health at the time, and that would, if they had considered that evidence, the agency we think would properly find that it's not a particularly serious crime.

[00:04:09] Speaker 00:
And we would like to emphasize the low end of the sentence that Your Honor pointed out of three years, and we don't think it's appropriate to consider the mandatory length

[00:04:17] Speaker 03:
And you don't think his criminal defense lawyer would have pursued a not guilty by reason of insanity or any kind of mental illness defense if that were in fact true at the time?

[00:04:28] Speaker 00:
Well, Your Honor, under the Gomez Sanchez case, this court points out that there are circumstances where mental health evidence is not available during the time of the criminal conviction versus now having more of that evidence.

[00:04:43] Speaker 00:
It doesn't undermine the criminal conviction in any way, and it's not dispositive that that was not presented at the time of the conviction.

[00:04:52] Speaker 04:
I'm only speaking for myself here, but you're going to have an uphill battle convincing me that this isn't a particularly serious crime.

[00:04:59] Speaker 04:
But the other avenue that I understand you're asking us to take, and it's gotten a bit, we asked you all to do supplemental briefing on Loper, right?

[00:05:12] Speaker 00:
Yes, Your Honor.

[00:05:13] Speaker 04:
OK.

[00:05:14] Speaker 04:
So generally, the particularly serious crime involves the Francescu analysis.

[00:05:20] Speaker 04:
But there's also a Ninth Circuit case where it's said that you don't have to make the dangerousness.

[00:05:28] Speaker 04:
If you find the particularly serious crime, that's the end of it.

[00:05:32] Speaker 04:
But your argument is because included in that, if I understand it correctly, there was some Chevron deference that we should not follow our own precedent and then say that even though it is Ninth Circuit precedent, we should not follow that.

[00:05:53] Speaker 04:
We should say that that wasn't well-reasoned.

[00:05:57] Speaker 04:
And even though Loper said,

[00:05:59] Speaker 04:
that it's not open-ended, you get to go back and revisit every case where Chevron deference was involved.

[00:06:07] Speaker 04:
I struggle with how I would revisit that precedent that we have on the Ninth Circuit.

[00:06:14] Speaker 04:
And I honestly think, too, and I just kind of thought about this this morning, but I'm on a case that has precedent over this that involves a similar issue.

[00:06:30] Speaker 04:
It's called Lopez v. Garland.

[00:06:32] Speaker 04:
It's 23-870.

[00:06:35] Speaker 04:
where we heard argument, it was submitted on May 17th, which ultimately might give some guidance on what a court does with Loper.

[00:06:48] Speaker 04:
I think it was argued before, the case was Judge Sanchez, Judge Callahan, and Judge Sidney Thomas.

[00:06:57] Speaker 04:
We don't know that, but it would have precedence over this.

[00:07:03] Speaker 04:
When we can revisit on Loper, if that case would be a published case, then that could possibly add something into the mix here.

[00:07:14] Speaker 00:
Thank you for giving me the opportunity to address that.

[00:07:19] Speaker 00:
Loper Bright, we think, does not

[00:07:22] Speaker 00:
mandate that this court always go on bonk to deal with any situation where the previous case relied on Chevron and we are advocating that there's only a very narrow set of cases

[00:07:33] Speaker 00:
where a panel could revisit a previous panel decision.

[00:07:37] Speaker 00:
And Ramirez-Ramos falls into that narrow set of cases not only because the reasoning was very short, it did not engage in the traditional tools of statutory interpretation, and it upheld an agency decision where the agency had already changed positions, which is a good indication that the court understood that it was not looking for the best interpretation of the statute.

[00:08:00] Speaker 03:
How do you address the government's point that Congress has amended this portion of the immigration laws three times and has not, knowing that the BIA didn't require a finding of present dangerousness and didn't correct that?

[00:08:19] Speaker 00:
Yes, Your Honor.

[00:08:20] Speaker 00:
So the provisions at issue here were enacted in 1980.

[00:08:25] Speaker 00:
And they use the same language from the 1967 protocol that adopts the 1951 Convention on Refugees.

[00:08:34] Speaker 00:
And so we would posit that the old soil is better where this

[00:08:41] Speaker 00:
interpretation that came from the old soil is better understood through the plain text of the statute, which is in present tense.

[00:08:48] Speaker 00:
The intent of the country is agreeing to the treaty, which you do look at text there, but you can also look to the context of the treaty.

[00:08:56] Speaker 00:
And so that would have been the old soil.

[00:08:59] Speaker 00:
And in Delgado v. Holder, the majority footnote, note 17, and the concurrence footnote, note 2, point to evidence

[00:09:11] Speaker 00:
the UN High Commissioner's amicus brief, which they have long and consistently taken the position that there's two requirements here, including dangerousness requirement, and another document, Paul Weiss document, that has the negotiations that occurred during the 1951 treaty.

[00:09:32] Speaker 00:
that also indicate that there's two separate findings, that that would have been the proper old story.

[00:09:37] Speaker 03:
But let me go back, because the only evidence of his psychiatric condition is an evaluation dated April 2022, which is long after his manslaughter.

[00:09:46] Speaker 03:
And there was only speculation about his mental health issue at the time of that crime.

[00:09:53] Speaker 03:
So let me ask a separate question.

[00:09:56] Speaker 03:
You argue that any kind of restraint to modified behavior

[00:10:02] Speaker 03:
would also constitute torture.

[00:10:04] Speaker 03:
And that seems like a really extreme position if an institutionalized person is acting violently.

[00:10:14] Speaker 03:
So how could that be torture?

[00:10:18] Speaker 03:
And you're saying in all instances, if they use a cloth band to restrain wrists, that's torture?

[00:10:25] Speaker 00:
Well, Your Honor, if this court is more comfortable only looking at the electroconvulsive therapy, then that is fine.

[00:10:33] Speaker 00:
There is evidence that this is not just a bandage restraint.

[00:10:39] Speaker 00:
This is also chemical restraints were at issue here over sedation.

[00:10:44] Speaker 00:
And there is evidence.

[00:10:46] Speaker 03:
But you argue any restraints constitute torture in your briefs.

[00:10:49] Speaker 03:
Are you now withdrawing that position?

[00:10:52] Speaker 00:
No, I'm not withdrawing, but one has to remember first that the way that they're using the restraints has to rise to the level of severe pain that constitutes torture under CAT.

[00:11:06] Speaker 00:
So we're talking about a very extreme form of- Don't we do some of those things here in this country too?

[00:11:12] Speaker 04:
Aren't there medically, doesn't that happen sometimes?

[00:11:18] Speaker 04:
Well, the facts here... I mean, obviously, I get the torture thing if you just pull people off the street and start giving all of us electroshock there, just hitting us all up with... But on the other hand, if you have people that are violent, if you have people that have... I think they even use some of these treatments for people that have Parkinson's or any number of things, but... Yeah.

[00:11:46] Speaker 00:
finding, though, is why we're not saying that any use of ECT ever is inappropriate.

[00:11:52] Speaker 00:
There are some instances where it's an appropriate medical treatment, but the purpose has to be to treat the person.

[00:11:59] Speaker 00:
Here, that's not the purpose.

[00:12:01] Speaker 00:
The record is very clear.

[00:12:02] Speaker 00:
The IJ's fact finding are very clear.

[00:12:04] Speaker 00:
This is for coercion.

[00:12:05] Speaker 00:
This is for unruly patients.

[00:12:07] Speaker 00:
This is to control their behavior, to make them

[00:12:09] Speaker 00:
do what the government wants.

[00:12:11] Speaker 00:
It is not for medical treatment.

[00:12:13] Speaker 00:
In fact, our expert, which got full weight from the IJ, said multiple times this is for behavior modification or punishment.

[00:12:22] Speaker 04:
to control unruly patients and that then another instance... Well, sort of when you've already committed a manslaughter, let's say, you've taken a life, okay, without going into the circumstances, and you've taken it against what our laws are, and then you have evidence of extreme mental health issues

[00:12:49] Speaker 04:
That puts him in a category that is pretty frightening in terms of dangerousness.

[00:13:01] Speaker 04:
But then he's arguing, on the other hand, he's not dangerous.

[00:13:04] Speaker 04:
So it's hard to sort of figure all that out.

[00:13:10] Speaker 00:
I'm also conscious of my time, and I do still want to save my time for rebuttal, but to address your question.

[00:13:15] Speaker 00:
How much time did you want for rebuttal?

[00:13:17] Speaker 00:
Three minutes, Your Honor.

[00:13:18] Speaker 04:
OK, and you can go ahead and answer and I'll give you three minutes.

[00:13:21] Speaker 04:
How's that?

[00:13:22] Speaker 00:
Thank you, Your Honor.

[00:13:23] Speaker 00:
Yes, well, because of his mental illness, he is extremely disabled right now.

[00:13:30] Speaker 00:
And here he has family support that could help him deal with that.

[00:13:35] Speaker 00:
I didn't get that he was living with family right now.

[00:13:38] Speaker 00:
He's not living with anyone.

[00:13:40] Speaker 00:
No, he's detained right now.

[00:13:42] Speaker 00:
Right, OK.

[00:13:43] Speaker 00:
But that is a key difference in terms of how

[00:13:47] Speaker 00:
his circumstances in Mexico versus what his circumstances would be here.

[00:13:51] Speaker 00:
And I also want to reiterate there has not been fact finding on this issue before the agency.

[00:13:57] Speaker 02:
Let me ask a different question.

[00:14:01] Speaker 02:
If we agree that the district court should make a separate

[00:14:11] Speaker 02:
finding on dangerousness, okay?

[00:14:15] Speaker 02:
Are there any cases that tell us as of when that finding should be made?

[00:14:20] Speaker 02:
In other words, is it dangerous at the time of that prior offense or some other time?

[00:14:28] Speaker 02:
Is there any case law on that?

[00:14:30] Speaker 00:
Well, Your Honor, it would be current dangerousness, and I get that.

[00:14:35] Speaker 02:
Why do you say that?

[00:14:38] Speaker 02:
Why is it not in connection

[00:14:40] Speaker 02:
with the crime that was found to be, you know, serious?

[00:14:46] Speaker 00:
Well, two reasons, Your Honor.

[00:14:47] Speaker 00:
So first, if one looks at the text, there's present tense.

[00:14:51] Speaker 00:
If you look at the intent of the nations that agreed to the treaty language, it's about weighing when is this person such a danger currently to the community?

[00:15:03] Speaker 00:
that you would deliver them into the hands of those who would persecute them.

[00:15:08] Speaker 00:
That's a very serious, this is a very narrow exception.

[00:15:10] Speaker 04:
And so that's why it has to be current dangerousness because it's a- So even if there had been a dangerousness finding back at the time, you would say you get to update it for now?

[00:15:23] Speaker 04:
Is that your argument?

[00:15:24] Speaker 00:
It would be as of the date of the fact finding.

[00:15:29] Speaker 04:
Even if the finding had been made, it's a particularly serious crime and he's dangerous previously, so you don't have the argument that both of those findings weren't made, but you'd still say at any given time it's got to be revisited.

[00:15:45] Speaker 00:
Maybe not at any given time, but when the IJ is making their fact finding, then it would be at that moment.

[00:15:51] Speaker 00:
Yes, Your Honor.

[00:15:52] Speaker 04:
Okay.

[00:15:53] Speaker 04:
I'll give you three minutes for rebuttal.

[00:15:54] Speaker 04:
Thank you.

[00:16:02] Speaker 04:
Good morning.

[00:16:02] Speaker 01:
Good morning, Your Honors.

[00:16:03] Speaker 01:
May I please to the court?

[00:16:04] Speaker 01:
Jeffrey Hartman, appearing for the Attorney General.

[00:16:06] Speaker 01:
The board's particularly serious crime determination in this case was not an abusive discretion.

[00:16:11] Speaker 04:
Can you kind of like slow it down a little bit?

[00:16:16] Speaker 01:
Sure.

[00:16:16] Speaker 01:
The board properly applied the matter of NAM factors in determining that the voluntary manslaughter conviction in this case was particularly serious.

[00:16:25] Speaker 01:
Obviously, the crime resulted in a death.

[00:16:27] Speaker 01:
As Judge Callahan, you were pointing out, the sentence was enhanced with this mandatory ... Well, okay, so what are we revisiting here?

[00:16:33] Speaker 04:
They are not ... I wasn't totally clear on this, but apparently they're not conceding that it's a particularly serious crime.

[00:16:43] Speaker 04:
They're saying it wasn't, and so what do we look at for that?

[00:16:48] Speaker 04:
Because at some point, the Francescu factors were looked at, and then we would review that for what?

[00:16:55] Speaker 04:
And then we have the, is it Ramirez, what is it, Ramos?

[00:17:02] Speaker 01:
Yeah, Ramirez-Ramos.

[00:17:03] Speaker 04:
Ramirez-Ramos, which basically says that you don't have to make the, that when you find a particularly serious crime, that includes that the person is dangerous.

[00:17:16] Speaker 04:
It's not a separate finding.

[00:17:18] Speaker 04:
And I think Judge Coe pointed out that Congress has made several amendments and never taken that particular one on.

[00:17:27] Speaker 04:
So putting our analysis on, and then we have Loper.

[00:17:33] Speaker 04:
So we have all of those layers of everything.

[00:17:36] Speaker 01:
Yes, Your Honor.

[00:17:36] Speaker 01:
Let me start with Loper and the supplemental briefing.

[00:17:39] Speaker 01:
Our position is that Loper-Brite does not require courts to revisit cases that relied on the Chevron doctrine and interpreting statutes.

[00:17:48] Speaker 01:
there needs to be a special justification to revisit a judicial precedent that interprets a statute.

[00:17:54] Speaker 04:
So are you saying we can never revisit?

[00:17:57] Speaker 01:
No, Your Honor, it just needs to be a special justification.

[00:17:59] Speaker 01:
And the things that the Supreme Court has looked at in cases like Patterson is whether the precedent has proven unworkable or there's disagreement among the authorities.

[00:18:08] Speaker 01:
And here there's no disagreement.

[00:18:10] Speaker 01:
The board in Matter of Carball in 1986 established that there is no separate

[00:18:16] Speaker 01:
present or future dangerousness analysis, that the analysis is focused on the three metafranchescu factors.

[00:18:22] Speaker 01:
As Judge Koh pointed out, Congress has had three opportunities and has changed other aspects of the particularly serious crime statute, but it's never changed that old soil.

[00:18:33] Speaker 01:
And I take my friend's point.

[00:18:34] Speaker 04:
So your point would be, if we did revisit Karbalis, we would be a three-judge panel revisiting

[00:18:44] Speaker 04:
three-judge panel, and we don't have the special circumstances, so it would have to be an en banc clean-up to do what your friend on the other side is asking us to do.

[00:18:55] Speaker 04:
Is that your position?

[00:18:57] Speaker 01:
I think that's right, Your Honor.

[00:18:58] Speaker 01:
I think under Loper-Brite, the Court should adhere to its prior precedence.

[00:19:01] Speaker 01:
The statute contains a delegation to the Attorney General to decide if a particular offense is particularly serious, and then even if the Court sat en banc and revisited the statute, Ramirez-Ramos had the correct interpretation.

[00:19:14] Speaker 01:
The court used tools of statutory construction.

[00:19:18] Speaker 01:
It looked at the phrasing of the particularly serious crime statute.

[00:19:24] Speaker 02:
But under Miller versus Gammie, if it's clear to us, right, that that rule is inconsistent with Loper-Brite, don't we have the obligation to go ahead as a three-judge panel rule on it?

[00:19:39] Speaker 01:
And so I think the way Judge Sashima to reconcile those cases is that Loper Wright expressly contemplates that courts don't need to revisit cases that relied on Chevron.

[00:19:48] Speaker 01:
I think that's the way to reconcile this court's clearly reconcilable case law in Miller versus Gammie with the way to deal with the fallout of cases that apply the Chevron doctrine and interpreting statutes.

[00:20:00] Speaker 01:
And so we would request that the court adhere to its precedent

[00:20:03] Speaker 01:
defer to the Attorney General's interpretation.

[00:20:05] Speaker 04:
But Loper gives us a little crack to go back if we want to.

[00:20:10] Speaker 04:
I think what Judge Tsushima is saying, but we would have to decide if it fit.

[00:20:15] Speaker 04:
But Loper also says it doesn't mean everything that happened before where there's chevron deference should be upended.

[00:20:24] Speaker 01:
That's right, Your Honor.

[00:20:24] Speaker 01:
I think Judge Kagan's opinion in Kimball goes to this point.

[00:20:28] Speaker 01:
A petitioner seeking to overrule a statutory precedent bears a special burden because judicial interpretations of the statute become part of the statutory scheme.

[00:20:37] Speaker 01:
As Judge Coe pointed out, Congress had three opportunities to change this analysis if it thought the board got this wrong, and it hasn't done so.

[00:20:46] Speaker 03:
But how do you address the petitioner's argument that you would render

[00:20:54] Speaker 03:
you know, is a present danger superfluous?

[00:20:57] Speaker 03:
If you say the Attorney General can decide what is a particular dangerous crime and that somehow encompasses whether they present a current danger, why do we have that language in the statute anyway if it's not a separate requirement?

[00:21:14] Speaker 01:
The phrase that's having been committed or been convicted of a particularly serious crime is a danger to the community of the United States.

[00:21:20] Speaker 01:
And so danger to the community of the United States is inexorably linked with the having been committed of a particularly serious crime, as this court explained in Ramirez's writing.

[00:21:29] Speaker 01:
But there's no comma.

[00:21:30] Speaker 03:
There's no comma.

[00:21:31] Speaker 03:
Having been convicted of a particularly serious crime, comma, is a present danger.

[00:21:37] Speaker 03:
There's no comma there.

[00:21:39] Speaker 03:
It's one fluid statement.

[00:21:43] Speaker 01:
I take your honor's point.

[00:21:43] Speaker 01:
I think difficult to be too critical of Congress in this circumstance because the language comes directly from Article 33 of the protocol.

[00:21:52] Speaker 01:
And so Congress implemented the protocol.

[00:21:54] Speaker 01:
And it gets its meaning.

[00:21:56] Speaker 01:
This court explained that Congress didn't define any of the terms in the particularly serious crime statute.

[00:22:02] Speaker 01:
That's in Mahini, which is cited in Ramirez Ramos.

[00:22:05] Speaker 01:
And so the meaning that the board gave to that phrase, a matter of carball, has informed

[00:22:13] Speaker 01:
you know, what it means to be particularly a serious crime, and Congress has never changed that.

[00:22:17] Speaker 01:
And the analysis in Ramirez-Ramos is that Congress would have used a conjunction like and in place of is if it had intended for there to be a separate dangerousness analysis.

[00:22:29] Speaker 01:
And despite that guidepost from this court, Congress hasn't taken that opportunity to change the statute in the way that courts have described it would need to be amended in order to encompass a present danger analysis.

[00:22:44] Speaker 04:
Your friend on the other side wants, I think, to always evaluate someone in the present tense.

[00:22:53] Speaker 04:
And so I think if I understand your interpretation, and I'm not agreeing or disagreeing with anyone, it would be over.

[00:23:06] Speaker 04:
when the particularly serious felony, particularly serious crime analysis, which would encompass is a danger, it would be over at that point.

[00:23:17] Speaker 04:
And so people would not be able to come back and say, well, I don't know, now I'm in a coma and I can't be particularly, I can't be dangerous or any, they could always update it.

[00:23:34] Speaker 04:
I mean, I think they want to say right now he's in a condition where he can't hurt anyone.

[00:23:43] Speaker 01:
I take the point.

[00:23:44] Speaker 01:
It is a discretionary analysis.

[00:23:45] Speaker 01:
So in an extreme case, Your Honor, the IJ or the board might not apply the bar.

[00:23:50] Speaker 01:
And I guess that's my best response to that in an extreme case where the agency, as a matter of discretion, decided not to apply the statutory bar to asylum and withholding remittal.

[00:24:01] Speaker 04:
The agency could do that, but it would be the agency, not us.

[00:24:05] Speaker 01:
Correct your honor.

[00:24:06] Speaker 01:
And here we have the finding that the conviction was particularly serious.

[00:24:10] Speaker 01:
The board did consider the mental health evidence in this case.

[00:24:14] Speaker 01:
Dr. Marbury explained that the symptoms in this case began in 2020 that there was no prior history of mental health problems in the community.

[00:24:23] Speaker 01:
His sister testified that the symptoms began three years before.

[00:24:27] Speaker 01:
her November 2022 testimony.

[00:24:30] Speaker 01:
His mother sent a letter to the IJ that the symptoms began around the same time.

[00:24:34] Speaker 01:
And so there's no evidence at the time of this offense that Mr. Bartolo was suffering or that his conviction was the direct result of a mental health problem, which is what this court requires under Benedicto.

[00:24:50] Speaker 04:
Can you talk about torture and the electrotherapy?

[00:24:54] Speaker 01:
Yes, Your Honor.

[00:24:55] Speaker 01:
So that the board correctly reviewed this determination.

[00:25:00] Speaker 01:
The IJ made a specific finding.

[00:25:02] Speaker 01:
Shouldn't use specific.

[00:25:03] Speaker 01:
The IJ made a finding that there was no specific intention of Mexican mental health officials to torture Mr. Bartolo.

[00:25:14] Speaker 01:
And then finding no clear error in that determination, the board explained consistent with this court's cases like Villegas and Acevedo,

[00:25:23] Speaker 01:
that in the absence of a specific intent to inflict severe pain and suffering, that Mr. Bartolo had not met his burden of demonstrating torture.

[00:25:33] Speaker 01:
And Dr. Foster, who was an anthropologist, she conducted field research in 2008 for an entire year at this 160 person bed hospital, described two instances of ECT, but they're extreme cases.

[00:25:47] Speaker 01:
One of the patients who was refusing food, this is an AR-334,

[00:25:53] Speaker 01:
was under the delusion that her sister and the staff were colluding to steal her organs, and that's why she wasn't eating food.

[00:25:59] Speaker 01:
And so ECT was administered as a procedure to treat the underlying condition that was preventing her from eating food.

[00:26:09] Speaker 01:
Joshi makes the same point, and this court and Acevedo, that the administration of this type of medical procedure

[00:26:19] Speaker 01:
is not torture unless it's specifically intended to cause severe pain and suffering on the victim.

[00:26:25] Speaker 01:
And the immigration judge, in deciding that there wasn't that specific intent, didn't look just at Dr. Foster's testimony, but also looked at the 2022 reforms that Mexico had implemented to shift towards a community model, considered

[00:26:41] Speaker 01:
the pension that's available to people with disabilities.

[00:26:45] Speaker 01:
And so the immigration judge's specific intent finding is holistic.

[00:26:50] Speaker 01:
It looked at the entire record.

[00:26:52] Speaker 01:
And Dr. Foster was asked very specifically at AR 226 and 227 about the

[00:26:59] Speaker 01:
purpose of the ECT.

[00:27:01] Speaker 01:
And she said, I very much hesitate to say that there was a specific intent to inflict harm.

[00:27:08] Speaker 01:
And so on that record, it was entirely reasonable for the immigration judge to conclude that there wasn't a specific intent to inflict severe pain and suffering on individuals with serious mental health conditions in Mexico.

[00:27:23] Speaker 03:
But how does ECT work?

[00:27:25] Speaker 03:
How does it actually modify the behavior without causing pain?

[00:27:29] Speaker 01:
So the Four Circuits opinion shows she describes the procedure, I think, best on this record.

[00:27:35] Speaker 01:
It's the administration of a low voltage electrical current through the brain under anesthesia to induce a seizure, and it modifies.

[00:27:47] Speaker 01:
It mitigates the underlying condition, Your Honor.

[00:27:50] Speaker 03:
Was there any evidence in the record that the Mexican institutions were not using anesthesia when they used the ECT procedure?

[00:27:59] Speaker 01:
No, and I don't think it's an issue that squarely presented here because the agency assumes that Mr Bartala would be in a Mexican mental health institution and that this was one of the procedures that could potentially apply to him.

[00:28:13] Speaker 01:
The IJ was focused on the specific intent issue.

[00:28:16] Speaker 01:
What motivated

[00:28:18] Speaker 01:
the application of this type of procedure.

[00:28:20] Speaker 01:
And the mere fact that it's ECT isn't sufficient to establish torture.

[00:28:25] Speaker 01:
Acevedo was a case that dealt with the application of ECT in the Salvadoran National Hospital.

[00:28:31] Speaker 01:
And in that case, there was no anesthesia administered and the court concluded

[00:28:37] Speaker 01:
that no record evidence compelled a specific intent finding.

[00:28:41] Speaker 01:
We cite at page 45 of our brief, the Penaloza case, which dealt with restraints and lobotomies there again.

[00:28:49] Speaker 03:
If Dr. Foster was at one institution in Mexico for a year, you said there were two instances of usage of ECT.

[00:28:57] Speaker 03:
What was the other one?

[00:28:58] Speaker 03:
One was refusing food.

[00:29:02] Speaker 01:
The other was where the patient believed that they were the governor of the state.

[00:29:11] Speaker 01:
And I think Dr. Foster, with respect to that patient, said that the symptoms didn't remit quickly enough, and I think that was the reason for the application of ECT.

[00:29:21] Speaker 03:
And what exactly were her words?

[00:29:24] Speaker 03:
She hesitated to say that there was a specific intent to inflict harm, or what were her exact words?

[00:29:29] Speaker 01:
It's a 226, I very much hesitate to say that there's a purposeful intention of harm by an individual.

[00:29:43] Speaker 01:
I'm happy to answer additional questions about the particularly serious crime.

[00:29:46] Speaker 04:
I don't have any additional questions.

[00:29:47] Speaker 04:
Judge Tashima, did you have any additional questions?

[00:29:50] Speaker 01:
We don't.

[00:29:51] Speaker 01:
Thank you very much, Your Honors.

[00:29:52] Speaker 01:
We'd ask that the court deny the petition.

[00:29:53] Speaker 01:
All right, thank you.

[00:30:05] Speaker 00:
Your Honor, there is evidence that ECT is used without anesthesia.

[00:30:10] Speaker 00:
It's AR-493, Disability Rights International Report, also that a patient was punished after a dispute with an official at the hospital, used 11 ECT sessions as punishment, and only stopped when the patient seemed on brink of death.

[00:30:28] Speaker 03:
Do you agree that this specific intent to inflict severe pain or suffering is a question of fact?

[00:30:34] Speaker 00:
So if the debate amongst the parties is whether on the facts there is a certain intent, what that intent is, is a question of fact, but the ultimate determination about whether that intent, what's happening, qualifies as specific intent, that's a legal question.

[00:30:53] Speaker 03:
So how do you address if Mr.

[00:30:56] Speaker 03:
Lopez Bartolo's own expert, Dr. Foster, hesitated to say that there was intent to inflict severe pain and suffering.

[00:31:05] Speaker 03:
How do you address that?

[00:31:06] Speaker 03:
That was your own expert, your own evidence that you put in the record.

[00:31:09] Speaker 00:
The experts said multiple times, this is not for medical treatment.

[00:31:15] Speaker 00:
This is for behavior modification or punishment.

[00:31:18] Speaker 00:
So another AR 226 to 227.

[00:31:21] Speaker 00:
When a patient is not doing X and I want him to do X, then I order this treatment.

[00:31:25] Speaker 00:
because it makes the patient do it, right?

[00:31:28] Speaker 00:
And that is not treatment.

[00:31:30] Speaker 00:
The legal position of the government here is basically that specific intent requires a single intent to cause pain.

[00:31:37] Speaker 00:
And therefore, you can point to any ultimate purpose, including a prescribed purpose like behavior modification, which is just coercion, making a patient do what they

[00:31:48] Speaker 00:
what the government wants them to do, that that somehow nullifies specific intent.

[00:31:52] Speaker 00:
There's no debate that this causes severe pain or suffering, that it rises to the level of severe pain or suffering under CAT.

[00:31:59] Speaker 00:
And so the only question is whether you can knock out specific intent by pointing to an ultimate ulterior motive.

[00:32:07] Speaker 00:
I would also like to address your question, Judge Koh, on old soil.

[00:32:10] Speaker 00:
I did not finish my answer on that.

[00:32:12] Speaker 00:
There's no old soil because the agency flip-flopped its meaning.

[00:32:17] Speaker 00:
before the three amendments that the government points to.

[00:32:21] Speaker 00:
There were no uniform interpretations in the circuit courts or Supreme Court.

[00:32:25] Speaker 00:
Most of those cases held that the statute was ambiguous.

[00:32:29] Speaker 00:
So if Congress was ratifying anything with their silence, it was that the agency could change its mind, that it's ambiguous.

[00:32:36] Speaker 00:
Obviously that framework doesn't work now under Loperbright, but there's no old toil.

[00:32:40] Speaker 00:
no clearly established meaning at the time.

[00:32:43] Speaker 00:
So that argument simply does not work.

[00:32:47] Speaker 00:
The government... Did Congress have overruled Cabalus?

[00:32:50] Speaker 00:
Cabalus or Cabalus or whatever?

[00:32:53] Speaker 00:
Well, Congress did not act.

[00:32:54] Speaker 00:
That is generally poor evidence post talk, post inaction.

[00:33:00] Speaker 00:
But they could have, right?

[00:33:01] Speaker 00:
They could.

[00:33:02] Speaker 00:
They could have, but what the courts held when looking at Cabalus is for the most part just that the statute was ambiguous.

[00:33:10] Speaker 00:
So again, what they would be deferring to and they also would know that the agency had changed its mind.

[00:33:17] Speaker 00:
So we just think that all that small sliver of non-post enactment, non-action by Congress is completely outweighed by the text, the intent of the parties, and the common sense that there are instances of rehabilitation.

[00:33:38] Speaker 00:
There are instances where the crime is committed

[00:33:40] Speaker 00:
As a minor, decades later, this person has reformed.

[00:33:43] Speaker 04:
OK, if we don't have additional questions, I've allowed you extra time.

[00:33:47] Speaker 04:
So take 30 seconds and wind up.

[00:33:49] Speaker 00:
Well, the government conceded that in an extreme case, it would make sense to consider current dangerousness.

[00:33:57] Speaker 00:
And like I was saying, that makes a lot of sense given potential fact patterns in many cases and also in this one.

[00:34:05] Speaker 00:
And the statute can't have one requirement sometimes and two requirements the other time as the government sees fit at the time.

[00:34:12] Speaker 00:
So we would urge the court to grant the petition and remand.

[00:34:17] Speaker 04:
All right, thank you both for your argument in this matter.

[00:34:19] Speaker 04:
It was very helpful.

[00:34:20] Speaker 04:
And once again, thank you for doing pro bono work.

[00:34:23] Speaker 04:
Sincerely, as a court, we appreciate everyone that comes before us.

[00:34:29] Speaker 04:
But we do appreciate pro bono work, because they're generally difficult issues.

[00:34:34] Speaker 04:
And without the assistance of good lawyers on both sides, it makes it more difficult for us to decide the cases.

[00:34:43] Speaker 04:
So thank you very much.

[00:34:44] Speaker 04:
This court will stand in recess for the week.

[00:34:50] Speaker 00:
All rise.