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Ninth Circuit Declines to Find Electro-Shock Is ‘Torture,’ Justifying Relief From Deportation
Opinion Says Mandated Behavioral Modification Techniques Allegedly Used in Mexico by Hospitals Do Not Warrant Allowing Man Convicted of Manslaughter to Remain in U.S.
By a MetNews Staff Writer
The Ninth U.S. Circuit Court of Appeals held yesterday that a petitioner was properly denied the withholding of removal based on allegations that, if deported, he was likely to be institutionalized in Mexico and subjected to mandated electro-convulsive therapy—during which electric currents are applied to the brain in order to address symptoms of certain mental health conditions—and other behavioral modification techniques.
Petitioning for relief was Francisco Bartolo, who argued that the methods used in psychiatric hospitals in Mexico amount to torture as defined in the Convention Against Torture (“CAT”). Under the convention, “torture” is defined as:
“[A]ny act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.”
In a memorandum opinion, signed by and Circuit Judges Consuelo M. Callahan and Lucy H. Koh and Senior Circuit Judge A. Wallace Tashima, the court found that there was no evidence that mental health workers in Mexico operated with the requisite “specific intent to torture” and that “while behavior modification may be…a proscribed purpose, Petitioner pointed to ‘no evidence…’ establishing that the…practices here are done for any proscribed purpose.”
Bartolo petitioned the court for review of a Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an immigration judge’s (“IJ”) decision denying his application for relief under CAT. He came to the attention of immigration officials after he was convicted in California of voluntary manslaughter and attempting to dissuade a witness by force.
Prison Health Records
Prison health records showed that Bartolo developed mental health issues while in prison in 2020. The nature of his mental disorders is not disclosed in the opinion.
The petitioner argues that, if he is deported, he will likely be institutionalized in Mexico and exposed to squalid and abusive conditions, including mandated use of behavioral modification techniques.
He pointed to the 2022 memorandum decision in Iglesias-Iglesias v. Garland, signed by Circuit Judges Kim Wardlaw, Ronald M. Gould, and Senior District Court Judge Dean D. Pregerson of the Central District of California, sitting by designation, in which the panel said:
“The record before us compels the conclusion that officials in Mexican psychiatric hospitals commit ‘serious human rights abuses’ not out of ignorance or negligence, but rather with the specific intent to harm patients. Nor, given the facts before us, can there be any serious doubt that, if removed to Mexico, Petitioner, who presents as manic and has been diagnosed with delusional disorder of a ‘[g]randiose type with bizarre content,’ is likely to be institutionalized and subjected to inhumane treatment rising to the level of torture.”
Unpersuaded that Bartolo had made a similar showing, Tashima, Callahan, and Koh wrote:
“Substantial evidence supports the agency’s conclusion that mental health workers in Mexican psychiatric hospitals do not have the ‘specific intent’ to commit torture through the use of Electro Convulsive Therapy (“ECT”), forced restraint, or isolation.”
Psychiatric Workers’ Motivations
The panel said:
“The IJ found that the use of ECT, forced restraint, or isolation at state-run psychiatric institutions was ‘to modify the behavior’ of patients and ‘not necessarily to specifically impose severe pain or suffering.’ In support, the IJ relied on Petitioner’s expert who testified that ‘she did not know the motivations’ of the mental health workers, and that there was no evidence that Mexican mental health reforms were ‘being done for a cynical purpose or with an intent to harm individuals.’ ”
Continuing, the jurists remarked:
“The BIA then found that, even assuming Petitioner would be institutionalized and ‘exposed to deplorable, squalid, and even abusive conditions, there is no clear error in the [IJ’s] finding that these conditions are the result of failed attempts at reform and the difficulty of allocating scarce resources, and are not specifically intended to inflict torture on mental health patients or prisoners.’ ”
They added:
“Petitioner argues that the BIA erred in applying a clear error standard of review because the agency accepted the factual premise that mental health workers’ intent was to modify patient behavior, and ‘not to provide medical care.’ But modifying patient behavior is not categorically at odds with providing medical care, and ‘[w]hether government officials act with specific intent to inflict severe pain or suffering is a question of fact that is subject to clear error review.’ ”
Per Se Torture
Bartolo also argued that the use of ECT, restraints, and isolation for behavior modification constitutes per se torture, asserting that “[n]o published data considers behavior modification an acceptable use of ECT, nor did the IJ find that it was being used for the potentially appropriate purpose of medical treatment.”
The judges commented:
“Petitioner’s expert acknowledged that ECT can be a ‘legitimate form of psychiatric treatment,’ and a 2015 Disability Rights International report in the record explained that some psychiatrists view the use of ECT as ‘a treatment that can save lives.’ Thus, the IJ rejected Petitioner’s contention that ECT was being used with a nefarious intent to harm.”
The petitioner also argues that any ‘behavior modification’ necessarily constitutes a prescribed purpose because it involves “coercing,” “punishing,” and “intimidating” patients as prescribed by the CAT. Disagreeing, the panel said that “modifying a person’s behavior does not always involve ‘coercing,’ ‘punishing,’ or ‘intimidating’ that individual.”
Addressing the Iglesias-Iglesias opinion in a footnote, the judges noted that it is “a non-precedential decision” and wrote:
“Iglesias-Iglesias is unpersuasive because the agency in that case found that mental health workers restrained patients ‘for fun’ and employed shock therapy ‘as punishment.’ The agency here found that mental health workers did not have a similarly proscribed intent.”
The case is Bartolo v. Garland, 23-1578.
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