A mentally ill man, who has been convicted of several offences and is fighting deportation to Guyana from the US, was recently granted a reprieve by two circuit judges who instructed the Board of Immigration Appeals (BIA) to review its standard applied to the Convention Against Torture (CAT).
However, Circuit Judges, Chagares Ambro and Antwerpen Van in their July 23 decision also agreed with the BIA that Guyanese-born Ronald Soobrian is not entitled to withholding of removal and that there was no denial of due process.
According to the decision, made public by leagle.com, Soobrian had petitioned the court for review of a final order of removal from the US. It was stated that although the man was twice granted protection under the CAT by the Immigration Judge (“IJ”), BIA reversed each time and ordered him removed. The BIA also upheld the IJ’s determination that Soobrian was not entitled to withholding of removal.
In his petition, Soobrian further argued that he was denied due process of law under the Fifth Amendment when he was forced to proceed at the removal hearing without an indefinite continuance or a determination of his competency.
Giving a background of the case, the judges said Soobrian is a lawful permanent resident of the US who entered the country May 10, 1974, at age eight. He remained continuously in the US since that time with his parents and there is no one to look after him in Guyana.
Soobrian developed mental health issues in his teenage years, leading to bizarre behaviour, frequent confrontations with authority, and several minor criminal matters.
In early 2002, he was convicted in New York state court of second degree attempted assault and was sentenced to 18-36 months’ imprisonment. This was a result of a guilty plea entered after he was found mentally competent to stand trial in spite of his longstanding mental illness (and two prior determinations that he was mentally incompetent to stand trial). The underlying incident involved Soobrian hitting a male victim in the head with a wooden stick, resulting in a laceration and swelling near the eye.
In late 2002, Soobrian was served with a notice to appear, charging that he was removable for having committed an aggravated felony. He appeared in immigration court in New York, while he was serving his sentence. He was excluded from the courtroom because his frequent outbursts were disrupting the hearing. The IJ, proceeding in Soobrian’s absence, determined him to be removable, and denied withholding of removal. This decision was affirmed by the BIA in late 2003. At that time, Soobrian had completed the New York sentence and was in the custody of the Department of Homeland Security in York County, Pennsylvania.
Under the then-applicable law, a writ of habeas corpus was filed on his behalf in the Eastern District of Pennsylvania in early 2004. Soobrian and the United States Attorney’s Office entered into a stipulation granting him a de novo immigration hearing, specifying that he would not be excluded from the new hearing and that he would receive proper medication to ensure his attendance at that hearing.
At the new hearing in May 2005, Soobrian conceded removability and filed a motion for a competency hearing and an indefinite continuance until his competency could be determined. These motions were denied by the IJ, who granted a continuance until September 2005 to aid preparation. In September, the IJ heard testimony and argument on the claims for relief. Two witnesses testified at the hearing. First, Soobrian’s mother, Ambrosine Ramberan, testified regarding his mental illness. Second, an expert witness, Jason Calder, testified as to the likely consequences of removing Soobrian to Guyana. Calder’s testimony was accepted without opposition from the government. Soobrian did not testify because his counsel “believed there were competency issues in this case,” and he did not believe Soobrian was “competent to testify or accurately recollect what happened that day [day of the offence].”
Jesus Christ
Soobrian’s mother testified that his mental problems began to develop in his teens. He would talk about Jesus Christ and God and the end of the world (believing himself to be Jesus at times), not eat, and not bathe. He would sleep on park benches and beg for food and money on the streets even though he was living with his family. On one occasion, he completely disrobed in public. He was frequently hospitalized.
The woman testified that she would receive calls from the New York City Police Department on occasion when Soobrian acted inappropriately and was taken to a psychiatric hospital. She also testified that he is not generally violent, and that on medication he is a different person who is “beautiful, presentable”. Soobrian has difficulty caring for himself, including feeding, clothing, and medicating himself (he often resists taking his medication), and she testified that there are no family members or ties to support Soobrian in Guyana.
‘Police abuse’
Meanwhile, Calder testified and submitted an affidavit. He opined that it was more likely than not that Soobrian would be abused at the hands of police or government officials if removed to Guyana. He based this opinion on three factors: Soobrian’s mental health; his status as a returning criminal deportee; and; his Indo-Guyanese ethnicity. He said that because Soobrian has no family in Guyana and the state of mental healthcare here, Soobrian “would probably wind up on the streets and in an indigent status.” He also testified that Soobrian would likely end up in Georgetown, a majority Afro-Guyanese city, and, furthermore, that he would be “red flagged” as a deportee with a violent criminal conviction (though he would not be automatically detained upon his arrival). The expert also stated that the most likely way Soobrian would draw the attention of under-equipped, poorly trained, and poorly disciplined police would be if he “act[ed] out.” He also stated that beatings were not uncommon, and he believed it was more likely than not that Soobrian would be abused in some fashion at the hands of police or government officials, noting that it was a question of “when,” not “if,” Soobrian would be detained. “Calder also testified to some of the more extreme responses to criminal deportees, relating reports that government officials were accused of forming death squads to target known or suspected criminals for extrajudicial execution, though he stated the more direct response was for police to have a heightened violent response against suspected or known criminals,” the judges said in their decision.
Following the testimonies the IJ issued a detailed nine-page opinion. He determined that the conviction was not a “particularly serious crime” and thus Soobrian could pursue withholding of removal and CAT protection. However, the IJ denied Soobrian withholding of removal because neither his ethnicity nor his status as a criminal deportee justified it. Soobrian’s ethnicity did not justify withholding because the record did not support a finding that Indo-Guyanese as a group suffer persecution in Guyana. Also, his status as a criminal deportee did not justify withholding because criminal deportees are not a cognizable social group.
The IJ, however, granted CAT protection after noting that “torture is not synonymous with `persecution,’ although there may be an over-lapping of violence which may encompass both actions.” He took special note of the lack of a requirement that violence be “on account of” a particular ground to qualify for CAT protection (assuming the rest of the definition of torture was met).
Soobrian later appealed the IJ decision to the BIA which in March 2006 issued a split decision affirming the IJ’s denial of withholding of removal on persecution grounds, affirming the IJ’s decision to proceed with the removal hearing without granting a continuance, and reversing the IJ’s grant of CAT protection.
Soobrian then filed a petition for review in the circuit court and in November 2006, pursuant to an unopposed motion, the court remanded the matter to the BIA 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. The BIA in turn remanded the case to the IJ “for a new decision on [Soobrian’s] application for protection under the Convention Against Torture.”
The IJ then clarified that his finding that Soobrian was likely to be subjected to torture at the hands of Guyanese authorities “was not based on the austere prison or detention conditions in Guyana, nor on the `willful blindness’ of Guyana government authorities to [Soobrian’s] torture.“
The BIA issued its last decision in November of 2008. It addressed only the issues it remanded to the IJ: (1) Soobrian’s claim that he is a member of a particular social group of mentally ill persons for purposes of withholding of removal; and (2) clarification of the IJ’s grant of CAT protection in the light of intervening precedent from our court and the Attorney General.
In arriving at their decision the circuit judges, who once again heard the matter following the BIA’s final judgment, pointed out that Soobrian’s mental illness fails as a reason to withhold removal because he has not demonstrated that he would be persecuted “on account of” his mental illness.
“As the BIA assumed it was a cognizable social group, we do the same, but even with this assumption the alleged persecution appears to be a simple lack of resources for the mentally ill in Guyana, not an intent on the part of the government to persecute mentally ill persons. Indeed, the IJ found that there was no intent to harm mentally ill persons, just a regrettable lack of resources,” the judges said.
“Although we recognize as not implausible Soobrian’s argument that the lack of resources may be because the Guyanese government does not want to help the mentally ill, he is essentially asking us to second-guess the government’s allocation of its scarce resources between the mentally well and the mentally ill. Were a disproportionate allocation of scarce resources alone sufficient to be deemed persecution, we would necessarily become entangled in matters of international budgetary analysis. We decline the invitation,” they added.
