November 1, 2010 Tacoma, Washington
Immigration Judge Teresa Scala granted withholding to a 31 year old Mexican woman, Ms. OG, who was diagnosed with schizophrenia in 2006. The Immigration Judge held that Respondent established that “poor Mexican women with chronic mental illness” is a particular social group. The Department of Homeland Security had been seeking to reinstate a prior expedited removal when the Respondent expressed a fear of returning to Mexico.
Mental Competency and State Court Order
Ms. OG was arrested for assaulting a family member however was found unable to aid and assist in her own defense by a State Circuit Court judge in Oregon who then committed her to the Oregon State Hospital for psychiatric treatment. At the end of her commitment she was evaluated by a State Psychiatrist who prepared an evaluation for the Court indicating that Ms.OG had regained fitness and was competent to stand trial. She was then transfered back to the County jail in order to answer to the criminal charges against her. Before the criminal case resumed, the District Attorney realsed Ms. OG on her own recognizance and informed Immigration Customs Enforcement they were free to pick up Ms. OG and reinstate the prior removal. Ms. OG was transferred to the Northwest Detention Center where she was detained by ICE for 12 months.
Reasonable Fear Interview
About one month after arriving at the NWDC an Asylum Officer conducted a reasonable fear interview. Because ICE was reinstating a removal order the only relief available was withholding of removal and its higher burden of reasonable fear vs. the lower standard of credible fear for asylum. A withholding applicant must prove it is more likely than not they will be harmed or loose their liberty if they are returned to their country of origin. For Asylum, even a 10 percent chance of harm can be enough to win the claim. The asylum officer found Ms. OG had not established reasonable fear and we requested review of that decision by an Immigration Judge. A short time later, an Immigration Judge found that Ms. OG had established reasonable fear based on the her mental illness and what is likely to happen to her if she is returned to Mexico.
Competency in Immigration Proceedings, Respondent’s Therapist testifies
At the first individual hearing in mid-July 2010 the Immigration Judge expressed great reservation whether to proceed with the hearing citing to the fact that an Oregon Circuit Court Judge never signed a subsequent order finding Ms. OG had regained competency. Although I was aware of the potential that my client’s due process rights could be at issue, I also believed that my client was able to understand the proceedings and she was able to help me in preparation for her hearing. I was worried though that she would be unable to testify on her own behalf, because of her difficulty in recalling her own history and traumatic events in the past. To guard against any negative conclusions the IJ may have drawn if her testimony was inconsistent with her application I had her therapist address the issue of her ability to recount her history. Her therapist told the court that due to her condition Ms. OG was unable to recount her own history and when she tried to explain past events there are many discrepancies, gaps and general vagueness.
Mexican Doctor Testifies about Human Right violations in Mexico against the Mentally Disabled.
A second witness we had testifying in July was Dra. Amalia Gambio Rios of Mexico City an M.D. who has worked over 25 years in the defense of the human rights of persons with disability in Mexico. The Immigration Judge noted that her decision was dependent in large part to the expert testimony Dra. Gambio Rios. The Doctor examined the medical files of Ms. OG and then prepared a report for the court and also provided telephonic testimony. She explained to the court that the conditions in Mexico for mentally disabled women violates international standards of human rights. Dra Gambio Rios described forced sterilization of women at state run mental health institutions and the lack of training in the health professions regarding the needs of the mentally ill. Dr. Humberto Martinez one of the authors of the Mental Disability Right International Mexico Report 2000 also graciously provided a declaration on behalf of Ms. OG.
BIA published case-law nonexistent
I was unable to find published BIA caselaw supporting a finding that the mentally ill can constitute a particular social group, however there are a number of unpublished cases. The Immigration Judge did in fact give weight to those decisions, and ultimately the government stipulated to the social group after the IJ issued her decision thereby relieving the IJ from having to write an opinion supporting her finding. I was also relieved that the Trial Attorney did acquiesce in the end because I feared they might have appealed.
Is Withholding enough?
Although everyone is pleased with Ms. OG being granted withholding, the issue still remains that Ms. OG was given an expedited removal at the point of entry in 2004. Arguably this action taken by CBP was illegal as they are not to issue expedited removals to minors or incompetent persons. When Ms. OG was apprehended in Tijuana in 2004 she was not undergoing any psychiatric treatment and describes being in an active state of psychosis. As the dust settles on Monday’s win, I am contemplating bringing a challenge to the first expedited removal so that Ms. OG might pursue her legal residency in the United States.
