it please the court my name is stephen robbins pro bono counsel for the petitioner in this case mr luis tonneau i would like to reserve two minutes for rebuttal no indication the board of immigration appeals as application for asylum by finding there was no indication in the record that upon deportation he couldn't continue to receive the same types of community based services mental health services that he received here in the united states they also found that he was essentially a self sufficient person who knew the names of his medications and could therefore self medicate and live a normal life in mexico i want to tell you today about why that matters and why it's wrong two thousand and fifteen was not a good year for my client mr qatada he was diagnosed with schizophrenia who is addicted to drugs he was in legal troubles and was with the help of his family and his doctor and his behavioral health counselor and his drug rehabilitation that mr caetano was able to manage the symptoms of his schizophrenia i want to cage in the voices in his head told him to leave the house and run and the next thing he knew he in afraid of washington a neighboring town where the police picked him up and returned him to his family that's it for thirty nine of the record but the record reflects that he was working with his doctor modifying his medications and getting to the point where he could remain in the community and by the time he was arrested by immigration in two thousand and sixteen mr katana was sober and clean for some four months he was working with his father and again he had been able to remain a member of the community and thanks to those services now when the board says there's no indication that those services aren't available in mexico they simply couldn't be more wrong the record is abundantly clear this is not a record that lends itself to opposing but permissible views of the facts disability rights international isn't n g o s that it's been  studying this issue in mexico for nearly twenty years and they say at forty eight that the primary reason for institutionalization the primary reason in mexico is the lack of community based services so  agree with you that your client doesn't have the self sufficiency skills needed to get treatment in mexico and maybe even that it's not that easy to get treatment in mexico how does that connect to heal necessarily have the high high enough chance of being institutionalized and subjected to a treatment that would count as persecution well i think that we have to at least agree on that fact first before we can get to the rest of the analysis the judge and the board said that it's not even like he's able to manage his symptoms so if he's not and if it is likely that he'll be institutionalized then well so that we're making it connection there right well what we do know is that the united nations says that one of the problems with the health care system the mental health care system in mexico is that the government doesn't keep statistics so somehow we have a statistic at a r five thirty seven that about seven thousand people are institutionalized for mental health reasons even though there are fifteen million people in mexico with mental illness so i mean just those statistics if we if that is what the board was relying on then he can't get to ten percent no matter what kind of treatment he re right and that would be a really good statistic if the particular social group that we're putting forward was mentally ill people in mexico but that's not the particular social group the particular social group has to do with family support and psychosis that is observable to the public and i think that according to the reports and the record these are the people who are most likely to be institutionalized and can you point to any assessment of the numeric probability of that in the record i mean how do we know even if they are the most likely if we're out like point zero zero one percent how do we get to ten percent well again i think that statistic is overly broad it includes you know i hear you but do we have a statistic that helps you and it well or would it be on the record yeah i don't think again i think because there's a lack of record keeping on this particular issue and also because you know frankly it would be comforting if all of these asylum cases could come down to a calculator and you know punching in some numbers and coming up with a percentage and unfortunately that's not always possible especially when the government is supposed we protecting people like mr kite tano don't keep track of their own abuses and so we're left to wrestle what do you think would be doing here right well the reason why the board and the judge found that it was not objective lee reasonable was because they say that community based services are available in mexico there's no indication in the record that they're not according to the board and if somebody like mr cayetano can go to mexico and continue to receive the same types of treatment why would he be institutionalized that's the argument board and the judge are putting forward but the record over and over again states that those services are not available and so the record is clearly in opposition to the factual findings of the board it's not just the un after three years of studying this issue in mexico at two thirty seven they noted concern for the lack of community health services in mexico and our own state department for sixty nine noted the same thing that there was a lack of programs for community integration and no changes in the mental health system to create community services so in a way you agree with you about this when we re eman to the board to reassess the probability in light of the assumption that he actually doesn't have these independent skills and couldn't get the treatment in mexico i think that that's the appropriate remedy especially in light of the recent case that came out last week where and again these are factual issues and every record is going to be different but a case that appears to be in  appears to be quite similar to this one the board found the opposite that it was likely that he would be institutionalized and so we have the board reaching contradictory conclusions and again the records may be different or the facts may be more specific but i think remain and is necessary in this case because quite frankly the factual basis of the finding that the fear was not objective lee reasonable is simply odds with the record the record is clear that the held an observation at the northwest detention center and the respondent there briefer page twenty nine in the footnote says well he was hospitalized but if he had access to his community based care he probably would have needed to go to the hospital so even the respond  is agreeing with us that it's the access to the community based care that leads him to that allows him to avoid hospitalization or institutionalization you want to save your remaining yes i do think you please the court sirup heard on behalf of the respondent the attorney general the court should deny the petition for review because the evidence does not compel the conclusion that petitioner stablished his eligibility for asylum withholding of removal or protection under the convention against torture that the fact that he stayed over night was not the equivalent of institutionalization because he would be staying overnight in the detention facility whether it was in the dormitory or in the mental health unit and that actually he went to the mental health unit on his own reporting an increase in his symptoms and at the initial intake so whether or not he's ever been institutionalized here seems a different issue but the assumption is the agency seems to have made some of them anyway are that he had self sufficiency skills and that the same kind of community health treatment was available in mexico your opponent is saying neither of those things have any support in the record and i'm inclined to think that might be right so can you point to anything that supports these assumptions that the agency made yes first the board when it says there's no indication that the outpatient treatment he was receiving here in the u s is unavailable i believe it's primarily referring to the medication not just to community support but to the psychotropic medication ok so the medication is there but if he doesn't have the self sufficiency skills he's not going to get that medication right so the record does not there is record support for the self sufficien skills he has come forward with his symptoms every single time that he's received medication or an increase in medication or a different kind of medication here in the united states and but he was having help from his parents always when he was not in custody correct it's unclear yes he lived with his parents and didn't bring him here with health and health appointments he had a driver's license he had his own car is there any evidence on the record that he could safely drive after the mental break that caused this mental illness there's evidence in the record that he had a couple convictions for reckless driving because of the meth usage it's unclear what he's capable of doing while on medication psychotropic medication but without meth because he during the so what are they answer is there is no support in the record for the idea that he has been able to drive since his mental illness the answer it's unclear and the answer here i would say is that it's his burden of proof to demonstrate that he has an objective really reasonable possibility of being institutionalized and there is i mean i think that  counsel acknowledged that that's the break point yet issue and then everything flows from that so he has some self sufficiency in that he is able to at least he has had an education he is has been able to drive in the past we don't know what it would be like in the future and then in terms of who in south in the institutions i think that's one of the biggest difficulties in this record as you pointed out the statistics are that a very small percentage of those with mental health concerns which includes bipolar borderline personality disorder as well as schizophrenia end up in the institutions it's point zero one seven percent or something to that effect so it's a very small percentage but then if you look at the d r y reports about who actually ends up there the focus seems to be on shouldering who are being institutionalized because their parents are unable to take care of them and the government in mexico doesn't have a foster care system and they consider children with disabilities to be unadoptable the d r i reports note in a footnote and the immigration judge highlighted this that of those people and  and there's another statistic that i found in preparation for or argument that per the twenty fifteen d r report there were twenty five thousand people living in institutions again that's point one seven percent of the fifteen million but that twenty five thousand includes people with physical disabilities sensory disabilities intellectual disability and when they do your i reports are giving in it doto information about who actually ends up in the institutions it does seem to focus on children with physical disabilities who pay whose parents can't take care of them so if we think that there's a lack of substantial evidence to support the assumption that the agency made that he had the self sufficiency skills needed to get treatment why wouldn't we need to re man to the agency to assess these probabilities without that assumption that wasn't supported in the record the lack of self sufficien if he doesn't have the self sufficiency to get all the treatment it still doesn't show that he has an objective lee reasonable likelihood of being institutionalized because there's actually i mean we might agree with you but doesn't the agency need to make that determination i mean if we think there's a fatal flaw in the reasoning that agency made or at least it may not be fatal maybe there's other evidence but from the evidence that we've you pointed us to i'm not persuaded the idea that he once could drive means that now they have mental illness is still can drive especially when he's crashed and i mean there's a lot of   he can't drive anymore so so you haven't convinced me yet but there is evidence on the record that he has self sufficient skills so if that is that it seems to me that well or at least arguably that's one of the premises here additional evidence of self sufficiency skills would be the letter from his a ploy talking about his work ethic and ability to but he's always worked with his father right it's not clear that he's actually he's worked at the same with the same employer as his father yes i don't know if they work on the same know it's not clear to me that they always worked at the exact same shifts or the exact same time and is there any evidence in the record that they worked separately while the the letter from the employer doesn't mention his father at all it mentions him as an employee and doesn't say he came because his father brought him doesn't say we hired him because we like his father he is an adult man and he as compared to the people that are described in the institutions you know the enterprise service article describes people in one institution the three hundred people that can't walk and they're all in wheelchairs he has self sufficiency in that he is able to walk they describe people who have never learned to read or write people who have cerebral palsy and whose muscles have atrophied to the point that they're just bedridden and he so when we're talking about self sufficiency skills we're talking about ability to walk ability just see so how do those things help them get medication i mean just being able to walk isn't going to get a medication in mexico well that could walk to a bus station to take a bus to go to the doctor and he has testified about his medication he's cognizant of what he takes what he thinks he needs even when in detention he was on one and he requested to switch to another and he was able to talk about how he thought he needed an increase and his parents weren't there with him but he was if you look at the records of his appointments with the mental health unit in the detention facility he's the one that's coming forward and telling them what he thinks he needs and that reflects i'm not saying it'll be easy this is not easy to move to another place that he hasn't been since he's was fourteen the immigration judge also found that his parents could continue to support him at least by talking to them being in relationship with him they didn't his only explanation for why they couldn't move to mexico with him was that his mother had recently had an operation one of the reasons the i didn't assume that his parents would move with him though right to be a cites the immigration judg decision as to the reasons and the immigrations judge highlights that but no no one assumed that they would they just point out that his parents whether here in the united states or in mexico can continue to provide him some support be that financially and on the mentos social group the b i i did not address the social group the immigration judge found that it was not a cognizable social group but that finding is not before this court because the board decided the case based on the lack of of an objective a reasonable fear of future persecution so if it went back that would still be on the table right the board would have to review the immigration judge's decision as to the cognized ability of the social group another point that's i guess it's it's difficult but it doesn't show that similarly situated people the only similarly situated people that i found that was mentioned someone with schizophrenia the who's an adult with schizophrenia in mexico was the president of that and n g o s in a zation collective something to keep and she is an advocate you know again not easy but she's receiving her psychotropic medication she's able to advocate on behalf of the community and the rest of the d r i report simply don't talk about adults being institutionalized and the twenty thirteen help that says that they have to notify judicial authorities and go through various hoops so he hasn't shown that it subjectively reasonable thank you thank you have some time for rebutt thank you the disability rights international reports do deal with other types of people including children but to say that they deal mostly with children i think is a misrepresentation of those reports disability rights international says people without families who are willing or able to support them are officially referred to as abandoned i doze and they are relegated to languish in institutions without hope for a return to the community that clearly refers to people like my client i want to talk about medication real quick mr proton as a tenth grade education is a farm worker knowing this is almost too embarrassing to have to say out loud but knowing the names of your drugs does not mean that you are a substitute for a mental health expert or mental health counselor or a doctor most people know the names of their drugs and it's not just about access to drugs here in this country he's had access to drugs and nevertheless symptoms have fluctuated at times he's gone off his meds and he had to go back on and so it's and even in detention he's had to change his medication not on his own because he's so smart but with the help of his but even if he graduated from high school or had a ged or a bachelor's degree that doesn't make him a doctor just because he knows the names of the drugs and this is what the the immigration judge did in the board subsequently you know the judge said well there's pharmacies in mexico and he knows the names of his drugs so he'll be fine and the record simply doesn't support that and so we just ask one other question it looks like at one point there was a request for voluntary departure do you know the status of that i don't recall robbins for your pro bono service and i know that both the court and the government appreciate having a thoughtful brief to respond to so thank both counsel for coming in this morning the next case for argument is united states