Third Circuit Grants Relief to Mentally Ill Respondent
In a long running case that has received attention in the Guyanese press, the U.S. Court of Appeals for the Third Circuit has reversed the BIA's denial of Torture Convention relief for a mentally ill man from Guyana. See Soobrian v. Attorney General, Case No. 08-4626 (3rd Cir. July 23, 2010).
Ronald Soobrian came to the United States from Guyana in 1974 as a lawful permanent resident. He was eight years old. Over time, he developed a mental illness and was convicted of attempted assault, an aggravated felony, which landed him in removal proceedings. Mr. Soobrian argued that if he were returned to Guyana, he would face persecution on account of his mental health, his status as a criminal deportee, and his Indo-Guyanese ethnicity. His conviction made him ineligible for asylum (or any other relief), and so he sought Withholding of Removal and withholding under the United Nations Convention Against Torture ("CAT"). He also asked for an indefinite continuance so that his competency could be determined.
The IJ (in York, Pennsylvania) denied the motion for a continuance. The IJ also denied the application for Withholding of Removal after he found that Mr. Soobrian did not face persecution "on account of" a protected ground. However, he granted Ms. Soobrian's application for CAT relief, finding that it was likely that the police would arrest and torture him due to his mental illness.
The BIA affirmed the denial of Withholding, but reversed the CAT grant, holding that there was "no evidence that the authorities intentionally create and maintain poor prison conditions in order to inflict torture." Mr. Soobrian filed a Petition for Review in the Third Circuit. Based on an unopposed motion, the case was remanded "for consideration of whether the class of mentally ill persons is a 'particular social group' for purposes of withholding of removal and to clarify the standard of review used to decide whether Soobrian established that he was 'more likely than not' to be tortured if removed."
On remand, the IJ held that "mentally ill persons" could constitute a particular social group. However, he found that the government of Guyana did not persecute mentally ill people; at worst, the government neglected them due to lack of resources. He also found no evidence that the government could not or would not protect such people. As such, he denied Withholding of Removal. Once again, the IJ found that Mr. Soobrian would face arrest and torture in Guyana, and he granted CAT relief.
On appeal, the BIA again affirmed the IJ's finding vis-a-vis Withholding of Removal. The Board did not rule on whether "mentally ill persons" constitute a particular social group. Instead, the Board found that even if this were a cognizable social group, the evidence did not support a finding that the government persecutes such people on account of their mental illness. The BIA again reversed the CAT grant, holding under a de novo standard of review that "the evidence was not alone sufficient to demonstrate that his prospective torturer will have the required specific intent of inflicting severe pain or suffering."
In his second Petition for Review, Mr. Soobrian raised several issues, including (1) whether the BIA improperly disturbed the IJ's decision on Mr. Soobrian's CAT claim by reviewing the factual findings de novo, and (2) whether Mr. Soobrian should have been granted a mental competency evaluation to determine if he understood the nature of the proceedings.
As to the CAT claim, the Third Circuit agreed with Mr. Soobrian and held that the BIA erred when it reviewed that claim de novo. Whether or not Mr. Soobrian would face torture in Guyana is a mixed question of law and fact. Under those circumstances, "the BIA must break down the inquiry into its parts and apply the correct standard of review to the respective components." Because the Board did not give proper deference to the findings of the IJ, the Court granted Mr. Soobrian's Petition concerning the CAT claim.
The Court also held that Mr. Soobrian's due process rights were not violated when the IJ refused him a continuance due to his mental health issues. The Court reasoned:
Under our immigration laws, there is only a passing reference to an alien's mental competency at a removal hearing. If it is impracticable by reason of an alien's mental incompetency for the alien to be present at the proceeding, the Attorney General shall prescribe safeguards to protect the rights and privileges of the alien.
The Court ultimately found that Mr. Soobrian had received sufficient procedural protections. In dicta (and relying on a Tenth Circuit decision), the Court also found that "the statute and the regulation facially appear to require no procedural safeguards if an unrepresented, mentally incompetent alien is nevertheless able to be present at his removal proceeding."
Fortunately for Mr. Soobrian, his family members were present at the hearing to assist him, and he seems to have been represented by excellent legal counsel. Most mentally ill respondents will not be so lucky. For such aliens, the minimalist procedural protections endorsed by the Third Circuit do not bode well.