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U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals


Office ofthe Clerk

5107 leesburg Pl/ce, Suite 2000


Falls Church, Virginia 22041

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Gleason,Conor Timothy OHS/ICE Office of Chief Counsel - NYD
The Bronx Defenders 201 Varick,Rm. 1130
360 E. 161st Street New York, NY 10014
Bronx,NY 10451

Name:CRUCEY,DOUGLAS A 043-446-797

Date of this notice: 6/12/2017

Enclosed is a copy of the Board's decision and order in the above-referenced case.

Sincerely,

Cynthia L. Crosby
Deputy Chief Clerk

Enclosure

Panel Members:
Kendall Clark, Molly
Greer, Anne J.
Kelly, Edward F.

Userteam: Docket

For more unpublished BIA decisions, visit


www.irac.net/unpublished/index/

Cite as: Douglas Crucey, A043 446 797 (BIA June 12, 2017)
U.S. Department of Justice Decision of the Board of Immigration Appeals
Executive Office for Immigration Review
' .

Falls Church, Virginia 2204 l

File: A043 446 797 New York, NY Date:


JUN 1 2 2017
-

In re: DOUGLAS CRUCEY a.k.a. Glen Hernandez a.k.a. Douglas Hernandez


a.k.a. Douglas Cruzey a.k.a. Douglas Crucey Hernandez

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IN REMOVAL PROCEEDINGS

APPEAL

ON BEHALF OF RESPONDENT: Conor T. Gleason, Esquire

ON BEHALF OF DHS: Matthew D. Durkin


Assistant Chief Counsel

ORDER:

This Board has been advised that the respondent in the instant case is deceased. Accordingly,

proceedings are terminated.

Cite as: Douglas Crucey, A043 446 797 (BIA June 12, 2017)
j
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UNITED STATES DEPARTMENT OF JUSTICE


EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
201 VARI CK STREET
NEW YORK, NEW YORK

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File No.: A043-446-797

In the Matter of:

C RUCEY, Douglas, IN REMOVAL PROCEEDINGS

The Respondent.

CHARGE: Section 237(a)(2)(B)(i) of the Immigration and Nationality Act


("INA") (Violation of a Law Relating to a Controlled Substance)

APPLICATIONS: Former INA 212(c) (Waiver of Inad missibility)


INA 208 (Asylum)
INA 24l(b)(3) (Withholding of Removal)
8 C.F.R. 1208.16(c) & 1207.17 (Convention Against Torture)

ON BEHALF OF THE RESPONDENT ON BEHALF OF DHS


Conor Gleason, Esq. Matthew Durkin, Esq.
The Bronx Defenders Assistant Chief Counsel
360 E. 1615t Street 201 Varick Street
Bronx, NY 10451 New York, NY 10014

DECISION AND ORDER OF THE IMMIGRATION JUDGE

I. PROCEDURAL HISTORY

Douglas Crucey ("the Respondent") is a native and citizen of the Dominican Republic.
(Exhibit ("Ex.") I). On March 7, 1992, he entered the United States ("U.S.") at San Juan, Puerto
Rico, as a lawful permanent resident ("LPR"). Id. On September 20, 1995, he was convicted of
Criminal Possession of a Narcotic Drug in the Fourth Degree, to wit: cocaine, in violation of
New York Penal Law ("NYPL") 220.09(1). (Exs. l; 2, Tab A). On October 26, 2001, he was
convicted of Criminal Possession of a Controlled Substance in the Seventh Degree, in violation
ofNYPL 220.03. (Exs. 2, Tab C; 3, Tab D; 12A). On November 4, 2013, he was convicted of
Theft of Services, in violation of NYPL 165.15. (Exs. I; 2, Tab B). On August 18, 2014, he
was convicted of Criminal Sale of a Controlled Substance in the Fifth Degree, in violation of
..

t.

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NYPL 220.31. (Ex. 11, Tab A). On April 9, 2015, the Appellate Division of the Supreme
Court of New York granted the Respondent's motion to file a late notice of appeal for his 2014
conviction. Id.

On August 19, 2014, the Department of Homeland Security ("OHS") served the
Respondent with a Notice to Appear ("NTA"), charging him with removability pursuant to INA

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237(a)(2)(B)(i), as an alien who, after admission, was convicted of a violation of law relating
to a controlled substance. (Ex. 1). On October 22, 2014, through counsel, he admitted factual
allegations one through three, denied factual allegations four and five, and denied the charge of
removability. On December l l , 2014, he submitted a letter to the Court admitting factual
allegation five and conceding the charge of removability based on this allegation. (Ex. 7). He
also admitted that he was convicted of NYPL 220.03, but denied the portion of allegation four
asserting that the drug was cocaine. Id. Removability was therefore established by clear and
convincing evidence based on his admissions and the evidence of record. INA 240(c)(3)(A); 8
C.F.R. 1240.S(a), 1240.IO(c), (d). The Dominican Republic was designated as the country for
removal. INA 24 l (b)(2)(D). On May 5, 2015, OHS served the Respondent with a Form I-261,
Additional Charges of lnadmissibility/Deportability, amending factual allegation four contained
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in the NTA. (Ex. 12A).

On December 22, 2014, the Respondent filed an Application for Asylum and for
Withholding of Removal. (Ex. 6). On April 22, 2015, he indicated an intent to apply for a
waiver under former INA 212(c). (Ex. 11). On May 5, 2015, OHS filed a motion to pretermit
the Respondent's 212(c) application. (Ex. 12). On July 7, 2015, the Court denied OHS'
motion to pretermit, and the Respondent filed an Application for Advance Permission to Return
to Unrelinquished Domicile, seeking relief under former INA 212(c). (Exs. 14; 15). On
October 8, 2015, the Respondent testified in support of his applications. For the reasons that
follow, the Court declines to adjudicate the Respondent's 212(c) application because he would
remain removable even if his 1995 conviction were waived. The Respondent's asylum and
withholding of removal applications will be denied because he has failed to prove that he has a
well-founded fear of persecution on account of a protected ground. Nonetheless, the Court
grants the Respondent's application for protection under the Convention Against Torture
("CAT') because he has demonstrated that it is more likely than not he will be subject to torture
if removed to the Dominican Republic.

1 The Respondent has also been convicted of Disorderly Conduct, in violation ofNYPL 240.20; Criminal Trespass
in the Second Degree, in violation of NYPL 140.15; and Disturbing the Peace, in violation of Massachusetts
Criminal Code chapter 272 53. (Ex. 11, Tab C).

2 Allegation four, as amended, reads: "You were convicted of the crime of Criminal Possession of a Controlled
Substance in the Seventh Degree, in violation of section 220.03 of the New York State Penal Law, pursuant to a
judgment entered on October 26, 2001 in the Criminal Court of the City ofNew York, County of New York, under
docket number 2001NY081642." (Ex. 12A).

II. TESTIMONY

A. The Respondent

The Respondent was born on June 4, 1974 in the Dominican Republic. He came to the
U.S. as an LPR in 1992. The Respondent is married to Rosanna Paredes ("Ms. Paredes"), a U.S.

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citizen who works as a nurse's assistant. The Respondent met Ms. Paredes in 1997. They lived
together in New York from 1997 until 2006, and then lived in Massachusetts from 2006 until
2012. The Respondent and Ms. Paredes have three U.S. citizen children: Clarisa Crucey, who is
nineteen and works as a babysitter; Glenn Douglas Crucey, who is seventeen and a student; and
Geleidys Crucey, who is thirteen and a student. The Respondent also helped raise Ms. Paredes'
other daughter, Yarileidis Paredes, who is eighteen and plans to enroll in the Navy. Ms. Paredes
and the children presently live in Massachusetts. The Respondent has a brother, Usvardo
Crucey, and sister, Ana Santos, who are LPRs and reside in the U.S. The Respondent's mother,
Teodora Crucey ("Ms. Crucey"), came to the U.S. as an LPR in 1987, and she currently resides
in Puerto Rico. The Respondent has been incarcerated since 2013.

The Respondent has good relationships with his wife, children, mother, and siblings. The
Respondent was raised by his mother in the Dominican Republic. It was hard for her to serve as
both mother and father while also earning enough money for the family. The Respondent was
mistreated a lot by his mother, but he believes that she always had the best intentions for him.
He forgives his mother for the past and they have a good relationship now. His mother suffers
from acute depression and has tried to commit suicide several times. The Respondent did not
grow up with his sister, but they have become close since coming to the U.S. and have a very
positive relationship. The Respondent is close with all of his children. He used to see them
every day when they lived together in Massachusetts, and he would take them to and from school
on a daily basis. He would also cook and clean for them, and he continued to visit them once or
twice a month when he moved back to New York in 2012. He speaks with all of his children
now about once a month.

Life was hard for the Respondent growing up in the Dominican Republic. His mother
worked multiple jobs to support the family, but sometimes they did not have enough money for
food or school supplies. The Respondent began working part-time at age eleven to help his
mother. He stopped attending school in the tenth grade because his mother left for the U.S. and
he did not have anyone close to him who could provide for him and register him for school. He
worked and lived on his own during the five years after his mother left the Dominican Republic.
He visited his grandmothers and aunt, but he could not live with them because there was not
enough space. He began using marijuana when he was around fourteen as a way to escape his
feelings of loneliness.

The Respondent came to the U.S. when he was eighteen because his mother thought that
he would receive a better education and have a better future. He earned his GED in Puerto Rico
and also worked fulltime doing various jobs in landscaping, maintenance, construction, and in a
bakery. He moved to San Diego, where he did construction for the city, and he then moved to
New York, where he also worked fulltime in construction, in a bodega, and as a truck driver. In
Massachusetts, he was a machine operator in a factory and also worked in construction. When
he moved back to New York in 2012, his friend helped him obtain a job collecting materials, and

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he also worked in a small supermarket. The Respondent was unemployed in 2007 for about
eight months. He was also unemployed another time for about a month, but he could not recall
the year. The Respondent likes working because it allows him to financially support his family.
He does not have a job preference and will work wherever he can. He paid taxes between 2005
and 2012, and he reported his income as between $2,000 and $10,000. His wife has also worked
to help support their children, and she would ask for help when they were overburdened with

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bills. The Respondent does not know from whom she asked for help, but he knows that they
used to receive food stamps.

The Respondent suffers from physical and mental health problems. He has Hepatitis A,
B, and C. He was hospitalized for twenty-three days due to his hepatitis, but he has not received
treatment for it in detention. The Respondent has also been diagnosed with schizoaffective
disorder, depression, and anxiety. He also had a drug problem and still suffers from the effects
of his addiction. He has been taking prescribed medication since being detained. Prior to his
incarceration, the Respondent would often hallucinate, have panic attacks and suicidal thoughts,
and would become deeply depressed. He used to think people were following him and walking
inside the walls, and he began using drugs in order to manage these symptoms. He finally saw a
family doctor in Massachusetts who diagnosed him with depression. The doctor prescribed him
medication, but it was not enough to adequately treat all of his conditions. The Respondent
began receiving treatment for schizoaffective disorder in prison and he has felt much better. He
does not hear voices or feel paranoid while on medication. He does not know how much these
medications cost, but he will pay for them on his own if he cannot continue to get insurance
through the government.

The Respondent tried to commit suicide when he was sixteen. His mother was not
around at the time and he fell into a deep depression. He drank a mix of crushed glass and milk,
and ended up getting his stomach pumped at the hospital. The Respondent's two uncles
committed suicide in the Dominican Republic by ingesting shampoo, pieces of glass, and
different chemicals.

Besides marijuana, the Respondent has also used cocaine, crack cocaine, and heroin. He
began using cocaine at twenty-five when he felt depressed but had not yet been formally
diagnosed. He started using cocaine habitually and then tried crack cocaine because it was
stronger and he wanted something to help him forget about his problems. He later started using
heroin when the medication he was taking was not helping him. He described his drug problem
as progressive, and stated that he reached a point of using drugs on a daily basis. He never took
methamphetamines, but he was given methadone in a clinic in Manhattan to help with his heroin
addiction. None of the drugs helped him with his mental conditions and they only caused him
more problems. In 2012, he decided to separate from his family and return to New York because
he did not want to harm them and he did not want to set a bad example for his children. He
visited them about once a month until he was arrested and detained in 2013. The Respondent did
not use drugs in front of his children. He believes that they were not aware of his drug use but
that they saw him behave differently. The Respondent had problems with alcohol, but he would
not. describe it as an addiction. He stopped consuming alcohol before he was incarcerated when
he began taking depression medication.

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The Respondent has been arrested seventeen times, nine of which were for drugs, and he
has a total of nineteen criminal cases. The first major incident occurred in 1995, when he was
arrested for criminal possession of a controlled substance. The Respondent's partner at the time
was a crack cocaine addict, and the two of them took drugs from a few individuals his partner
knew. The Respondent pied guilty and was sentenced to five years' probation. In 2013, he was
convicted of criminal sale of a controlled substance, but he is currently appealing this conviction.

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He admitted that he sold pills for money, but he believes that he was really the victim because he
wanted to help people with the medications that he would buy for himself.

The Respondent has not used drugs since being incarcerated in 2013. He went through a
strong period of detoxification and participated in a program at Rikers Island in which he
received therapy and medications every day. This was the first time he had ever received
medicine or therapy on a daily basis. The Respondent had previously enrolled in a program
called Hogar Crea, in which he received therapy in isolation, but it was not enough for him to
quit his drug addiction because it did not offer medication. The Respondent feels very badly
about his addiction and his criminal record because he knows that they have harmed his family
and society. He has spoken with his children about his drug problem and asked them for
forgiveness. The Respondent has no intention of using drugs again and he plans to enroll in a
program in the Bronx called Esperanza where he will receive medication and therapy. The
support of his family and the church will also help him not use drugs again. The Respondent has
been in immigration detention for fourteen months. He has not been able to provide for his
children during this time, and his mother has suffered because she has no one who can take care
of her. The Respondent would like his mother to live with him and his family if he is allowed to
stay in the U.S. Even though he needs help with his mental health and drug problems, he would
be able to take care of his mother financially and ensure that she takes her medications, and she
would help him by living in their home.

The Respondent is afraid to be deported to the Dominican Republic. He fears that he will
not have the same medical options there that he has in the U.S. He is scared that he will not
receive the treatment he needs for both his mental and physical conditions, that he will
deteriorate and relapse into drug abuse, and that he will end up in jail. The Respondent believes
people who are poor and ill are not able to care for themselves in the Dominican Republic, and
that deportees are discriminated against and tortured by the police. He knows this because
people have testified about it and because he saw the police and young people abuse individuals
with mental conditions when he was growing up. Without medication, the Respondent would
suffer from panic attacks and hallucinations. One time, for example, he suffered a panic attack
while walking home and ran up a tree where he remained for three hours. Another time, while
living in Massachusetts, he heard people on the first floor of his apartment building and thought
that they were moving parts of the ceiling to enter his apartment. He believed that these
individuals were walking through the walls and watching his daughters bathe. He could not
sleep and felt panicked during this time.

The Respondent is also afraid to return to the Dominican Republic because a man named
Heriberto Rivas ("Mr. Rivas") will go after him. Mr. Rivas raped the Respondent's mother
while she was watching the Respondent's children one evening. When the Respondent came
home and saw Mr. Rivas attacking his mother, the Respondent fought with him and Mr. Rivas

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ended up being convicted and deported to the Dominican Republic. The Respondent does not
know for certain that Mr. Rivas was convicted of rape and deported, but he believes this to be
true because his mother informed him that Mr. Rivas has gone to their cousin's house in Santo
Domingo several times in search of the Respondent and his mother. The Respondent's cousin,
Junilda Hernandez ("Ms. Hernandez"), has three children and lives in a small house with a low
income. The Respondent has not communicated directly with Ms. Hernandez, but through his

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mother he learned that he would not be able to live with Ms. Hernandez and that it w ould be
unsafe for him to live in the Dominican Republic. Ms. Hernandez also could not help the
Respondent obtain the medications he needs because she does not have enough money to support
her own family. The Respondent could not go to the police in the Dominican Republic because
Mr. Rivas is connected with the military there and he has family members who are in the police.

The Respondent has three or four relatives in the Dominican Republic, but he does not
keep in touch with them and he does not believe that he could live safely anywhere in the
country. If he were deported, his children would lack the support they need from him and he
does not know when he would see them again. If he were given a second chance, he would
return to his family, seek employment, and continue to receive therapy and medication at
Esperanza so that he would not relapse. The Respondent believes he deserves another chance
because he has been through a lot, he has worked hard not to repeat his mistakes, and he wants to
be a positive example for his children. He hopes to return to his family and be a positive person
in his community.

III. LEGAL STANDARDS & ANALYSIS

A. Former INA 212(c)

1. Statutory Eligibility

Former INA 212(c) allows certain LPRs to waive removability or deportability based
upon criminal convictions entered prior to April 1, 1997, the date when 212(c) was effectively
repealed. See INA 212(c) (1995); INS v. St. Cyr, 533 U.S. 289, 326 (2001); Francis v. INS,
532 F.2d 268, 273 (2d Cir. 1976); Matter of Silva, 16 l&N Dec. 26, 30 (BIA 1976); 8 C.F.R.
1003.44, 1212.3. The Board of Immigration Appeals ("BIA" or "Board") held in Matter of
Abdelghany, in relevant part, that an LPR who has accrued seven consecutive years of lawful
unrelinquished domicile in the U.S. and who is removable or deportable by virtue of a plea or
conviction entered before April 24, 1996, is eligible to apply for discretionary relief under former
INA 212(c), unless: (l) the applicant is subject to the grounds of inadmissibility under INA
212(a)(3)(A), (B), (C), or (E), or (lO)(C); or (2) the applicant has served an aggregate term of
imprisonment of at least five years as a result of one or more aggravated felony convictions
entered between November 29, 1990, and April 24, 1996. 26 I&N Dec. 254, 272 (BIA 2014).

The Respondent is statutorily eligible for relief under former INA 212(c). See id; 8
C.F.R. 1212.3(t). He pied guilty to Criminal Possession of a Narcotic Drug in the Fourth
Degree in violation ofNYPL 220.09(1) on September 20, 1995, prior to the repeal of 212(c),
and he was sentenced to five years' probation. See (Ex. 2, Tab A). The Respondent has been an

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LPR for twenty-four years, fulfilling the requirement that he possesses at least seven years of
unrelinquished domicile. See (Ex. 1). None of the disqualifying grounds of inadmissibility
applies to him. Furthermore, as his conviction for Criminal Possession of a Controlled
Substance in the Fifth Degree in violation ofNYPL 220.31 is currently on direct appeal, it does
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not statutorily bar him from 212(c) relief. (Ex. 11, Tab A). Therefore, the Court finds the
R espondent to be statutorily eligible for relief under former INA 212(c).

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2. Removability Under INA 237(a)(2)(B)(i)

Despite the Respondent's statutory eligibility, the Court finds that he remains removable
even if granted a 212(c) waiver for his 1995 conviction. Specifically, his conviction forNYPL
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220.03, Criminal Possession of a Controlled Substance in the Seventh Degree, renders him
removable under INA 237(a)(2)(B)(i) because he cannot show that there is a realistic
probability that New York state prosecutes conduct under the statute that falls outside the federal
definition. Matter of Ferreira, 26 I&N Dec. 415, 420-21 (BIA 2014) (remanding for application
of the realistic probability test where a state statute covered a controlled substance not included
in the federal controlled substance schedules, and noting that the "'realistic probability test' is
part of the initial inquiry that an Immigration Judge must undertake when applying the
categorical approach"); see also Matter of Mendoza Osorio, 26 I&N Dec. 703 (BIA 2016).

In determining removability, the Court must begin with a categorical approach whereby it
compares the statute of conviction with the removability ground to determine whether the
conduct proscribed would necessarily render the alien removable. Moncrieffe v. Holder, 133 S.
Ct. 1678, 1685 (2013). At this stage, if the respondent argues that the statute of conviction is
overbroad, meaning that it encompasses a broader swath of conduct than the removal ground, he
bears the burden of demonstrating "a realistic probability, not a theoretical possibility, that the
State would apply its statute to conduct" that falls outside of the removal ground. Id. (citing
Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193 (2007)). To meet this burden, "he must at least
point to his own case or other cases in which the state courts in fact did apply the statute in the
special (nongeneric) manner for which he argues." Ferreira, 26 I&N Dec. at 419. The Court
recognizes that Mellouli v. Lynch suggests that a mismatch between state and federal controlled
substance schedules causes the categorical approach to fail. 135 S. Ct. 1980, 1987-88 (2015).
However, the Supreme Court stated in Mellouli that it was not deciding whether the BIA applied
the categorical approach correctly in Ferreira. 135 S. Ct. at n.8 ("The Government acknowledges
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that Ferreira 'assumed the applicability of [the Paulus ] framework.' See Brief for Respondent at
4. Whether Ferreira applied that framework correctly is not a matter this case calls upon us to

3 The Court thoroughly explained why this direct appeal renders the Respondent's 2014 conviction not final for
i mmigration purposes in its decision denying DHS' motion to pretennit his 212(c) application. See (Ex. 15). The
Court also analyzed why, contrary to OHS' assertion, the Respondent is not removable under INA 237(a)(2)(A)(ii)
(two ClMTs). See id.

4 Although the Court initially did not sustain allegation four in the NT A, the Respondent subsequently admitted in
writing that he was convicted of NYPL 220.03. See (Ex. 7). In addition, the certificate of disposition and plea
minutes establish that he was convicted of this offense. See (Exs. 2, Tab C; 3, Tab D). Accordingly, this conviction
may be used to support the charge ofremovability in the NTA. INA 240(c)(3)(B); 8 C.F.R. 1240.IO(c), (d).

5 Matter of Paulus, 11 l&N Dec. 274 (BIA 1965).

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decide."). Accordingly, Ferreira is still binding precedent because the Supreme Court expressly
left Ferreira undisturbed in Mellouli. Therefore, the Court analyzes the Respondent's conviction
and applies the realistic probability standard as outlined in Ferreira.

The Respondent submitted indictments for the sale of chorionic gonadotropin against
Claire Godfrey from February 13, 2007. See (Ex. 3, Tab B). This evidence, however, does not

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establish a realistic probability that the state prosecutes crimes involving chorionic gonadotropin,
as it does not demonstrate that a single individual has been convicted of a crime involving
chorionic gonadotropin in New York. See Ferreira, 26 I&N Dec. at 419; see also Mendoza
Osorio, 26 I&N Dec. at 707, n.4 ("We are not persuaded that a realistic probability of a
successful prosecution may be shown by looking only to a charging document that did not
necessarily result in a conviction."). Accordingly, the Court finds that the Respondent remains
removable under INA 237(a)(2)(B)(i) because his conviction under NYPL 220.03 is
categorically a controlled substance offense under the INA.

The Respondent further argues that the statute of conviction is not divisible and that the
Court is therefore not permitted to consult the record of conviction to determine what substance
was involved in the offense. The Court need not reach this issue because it finds that the
Respondent's offense is categorically a violation of a law relating to a controlled substance.
Thus, even if the Respondent were granted a waiver of his 1995 conviction, he would remain
removable under INA 237(a)(2)(B)(i) for his 2001 conviction. Accordingly, the Court declines
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to fully adjudicate his waiver application and proceeds with his other applications for relief.

B. Credibility and Corroboration

The REAL ID Act of 2005 applies to all applications for relief or protection from
removal filed after May 11, 2005. Matter of S-B-, 24 I&N Dec. 42, 45 (BIA 2006); see also INA
240(c)(4). Thus, where an applicant, such as the Respondent, testifies in support of an
application filed on or after May 11, 2005, the Court may, after considering the totality of the
evidence, and all relevant factors," base a credibility determination on: the demeanor, candor, or
responsiveness of the applicant or witness; the inherent plausibility of the account; the
consistency between oral and written statements; the internal consistency of such statements; the
consistency of such statements with other evidence of record; and any inaccuracy or falsehood in
such statements, "without regard to whether an inconsistency, inaccuracy, or falsehood goes to
the heart of the applicant's claim"; or any other factor. INA 208(b)(1 )(B)(iii); see also Matter
of J-Y-C-, 24 I&N Dec. 260, 266 (BIA 2007); Diallo v. U.S. Dep't of Justice, 548 F.3d 232, 234
n.1 (2d Cir. 2008). The Court can require corroborating evidence where an alien "reasonably"
can obtain it. Matter of S-M-J-, 21 I&N Dec. 722, 725 (BIA 1997).

The Court finds that the Respondent testified credibly. He exhibited a composed
demeanor and responsiveness to direct and cross-examination. His testimony was detailed,

6 The Court nonetheless recognizes the Respondent's outstanding 212(c) application. In addition to his own
credible testimony, see infra, he submitted multiple letters of support from his children, wife, mother, sister, and
chaplain of his detention center. See (Exs. 16, Tab E; 21, Tab B). The Court commends the Respondent's efforts at
rehabilitation, and notes that his criminal history must be viewed in the context of his serious mental illnesses. See
infra.

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internally consistent, and consistent with his I-589 application and supporting affidavit. See
(Exs. 6; 16, Tab C). Furthermore, he testified candidly regarding his mental health, drug abuse,
and criminal history.

The Court also finds that the Respondent has sufficiently corroborated his claims
regarding his mental health and associated behavior. The Respondent submitted medical records

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from Hudson County Correctional Center, New York City Correctional Health Services, and
Continuum Health Partners, as well as a psychological evaluation, all of which corroborate his
testimony regarding his mental illness and drug abuse. See (Ex. 16, Tabs C at 478-84, & F). In
addition, the Respondent submitted substantial background evidence documenting the lack of
mental health treatment in the Dominican Republic. See (Exs. 8; 16, Tab B). Finally, he
submitted an affidavit from his mother, Ms. Curcey, who corroborated their family's history of
mental illness. See (Ex. 16, Tab C at 458-65).

The Court additionally finds, however, that the Respondent failed to sufficiently
corroborate his claim regarding his fear of harm by Mr. Rivas. As discussed further below, see
infra, III.C.2.ii, Ms. Crucey's affidavit is insufficient to adequately substantiate the Respondent's
claimed fear because it is based on second-hand knowledge and is from an interested party. See
(Ex. 16, Tab C at 459-62). As there is no independent or objective evidence demonstrating the
existence of Mr. Rivas or his alleged connections with the Dominican Republic police, the Court
finds that the Respondent has failed to carry his burden of proof regarding his fear of harm in the
Dominican Republic from Mr. Rivas.

C. Asylum

1. One-Year Filing Deadline

As a threshold matter, an applicant must prove by clear and convincing evidence that his
asylum application was filed within one year of the date of his last arrival into the U.S. or April
1, 1997, whichever is later. INA 208(a)(2)(B); 8 C.F.R. 1208.4(a)(2). If he files after the
one-year deadline, he must show to the satisfaction of the Court that he qualifies for an exception
to the filing deadline based on either: (I) changed circumstances that materially affect his
eligibility for asylum, or (2) extraordinary circumstances relating to the delay in filing an
application within the filing period. INA 208(a)(2)(D); 8 C.F.R. 1208.4(a)(2), (4)-(5). In
either instance, the applicant must apply within a reasonable period after the changed or
extraordinary circumstances. 8 C.F.R. 1208.4(a)(4)-(5).

The Court finds that the Respondent merits an extension of the filing deadline based on
extraordinary circumstances. He entered the U.S. on March 7, 1992, but he did not file his
application until December 22, 2015. See (Exs. 1; 6). The regulations provide that an asylum
applicant may qualify for an exception to the deadline if he "maintained ... lawful immigrant or
nonimmigrant status ... until a reasonable period before the filing of the asylum application." 8
C.F.R. 1208.4(a)(5)(iv). The Respondent meets this exception because he was admitted to the
U.S. as an LPR in 1992, he has remained in lawful status since that time, and he filed his asylum
application on December 22, 2014, four months after the commencement of removal
proceedings. See (Exs. l; 6). Accordingly, the Court deems his application timely.

9
2. Statutory Eligibility

An asylum applicant may demonstrate that he is a "refugee" in either of two ways. First,
he may demonstrate that he suffered past persecution on account of race, religion, nationality,
membership in a particular social group, or political opinion. INA 10l(a)(42)(A),
208(b)( l )(A); 8 C.F.R. 1208.13(b)(l). Second, he may demonstrate a well-founded fear of

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future persecution on account of a protected ground by demonstrating that he subjectively fears
persecution and that his fear is objectively reasonable. INA 10l(a)(42)(A); Ramsameachire v.
Ashcroft, 357 F.3d 169, 178 (2d Cir. 2004). If eligibility is established, asylum may be granted
in the exercise of discretion. INS v. Cardoza-Fonseca, 480 U.S. 421, 423 (1987); Abankwah v.
INS, 185 F.3d 18, 22 (2d Cir. 1999).

Because the Respondent has not suffered past persecution in the Dominican Republic,
there is no presumption that his life or freedom would be threatened in the future in the
Dominican Republic. 8 C.F.R. 1208.16(b)(l)(i). However, he may nonetheless demonstrate
statutory eligibility for asylum by establishing that he has a well-founded fear of future
persecution. See 8 C.F.R. 1208.l3(b)(2). To establish a well-founded fear of future
persecution, the applicant must establish both that he has a subjective fear of persecution and that
the fear is objectively reasonable. Ramsameachire, 357 F.3d at 178. Credible testimony by an
applicant may satisfy the subjective component, depending on the circumstances. Id.; see also
Diallo v. INS, 232 F.3d 279, 286 (2d Cir. 2000). Once a subjective fear of persecution is
established, the applicant need only show that such fear is grounded in reality to meet the
objective element of the test; that is, he must present "reliable, specific, objective" evidence that
his fear is reasonable. Ramsameachire, 357 F.3d at 178 (internal citation omitted). The
applicant's fear may be well-founded even if there is "only a slight, though discernible, chance
of persecution." Diallo, 232 F.3d at 284 (citing INS v. Cardoza-Fonsec 480 U.S. 421, 431
(1987)).

In a claim of persecution on account of membership in a particular social group, the


applicant must establish that he possesses an immutable characteristic shared by a group of
people-a characteristic that either is beyond the power of an individual to change or is so
fundamental to individual identity or conscience that it should not be required to be changed.
See Matter of Acosta, 19 I&N Dec. 211, 233-34 (BIA 1985) (holding that Salvadoran taxi
drivers were not a cognizable social group because they could change professions); see also
Matter of Kasinga, 21 I&N Dec. 357, 365-66 (BIA 1996) (holding that "young women of the
Tchamba-Kunsuntu Tribe [of northern Togo] who have not had FGM [female genital
mutilation], as practiced by that tribe, and who oppose the practice," were a particular social
group); Matter of H-, 21 I&N Dec. 337, 343 (BIA 1996) (holding that members of the Marehan
subclan of Somalia, who share ties of kinship and linguistic commonalities, were a particular
social group); Matter of Toboso-Alfonso, 20 I&N Dec. 819, 822-23 (BIA 1990) (holding that
individuals identified by the Cuban government as "homosexuals" were a particular social
group).

IO
....J

To constitute a particular social group, the proposed group must also exhibit a shared
characteristic that is socially distinct 7 within the society in question and defined with sufficient
particularity. Matter of M-E-V-G-, 26 I&N Dec. 227, 237 (BIA 2014); Matter of W-G-R-, 26
I&N Dec. 208, 210-12 (BIA 20 14); Patoka v. Holder, 762 F.3d 191, 196 (2d Cir. 2014). When
assessing the particularity and social distinctio n of a putative social group, defining
characteristics must be assessed in the social and cultural context of the applicant's country of

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citizenship or nationality. M-E-V-G-, 26 I&N Dec. at 2 41; see also W-0-R-, 26 I&N Dec. at
214-15. A group is socially distinct if "society in general perceives, considers, or recognizes
persons" sharing a particular characteristic or set of characteristics as constituting a group. W-G
R-, 26 l&N Dec. at 217 ; Matter of A-M-E- & J-G-U-, 24 l&N Dec. 6 9, 74-76 (BIA 2007);
Matter ofC-A-, 23 l&N Dec. 951, 960-61 (BIA 2006) (finding that non-criminal informants who
provided information to the Colombian government about the Cali drug cartel were not a
sufficiently socially distinct group). Building upon the concepts of "immutability" and
"visibility," the BIA also explained that particular social groups must have "particularity." See
Matter of S-E-G-. 24 I&N Dec. 579, 584 (BIA 2008). The BIA held that the essence of
particularity is "whether the proposed group can accurately be described in a manner sufficiently
distinct that the group would be recognized, in the society in question, as a discrete class of
persons." Id.

i. Dominicans with severe mental illness who exhibit erratic behavior

TheCourt concludes that the Respondent has failed to d emonstrate a w ell-founded fear of
persecution on account of a protected ground. The Respondent contends that he belongs to the
particular social group of "Dominicans who suffer from severe, chronic mental illness who as a
result exhibit erratic behavior." (Ex. 17 at 207). He argues that he suffers from incurable
conditions that require constant treatment, without which he will experience hallucinations,
exhibit disruptive behavior, and become suicidal. Id. at 2 10. He further contends that he will not
have access to the treatment he needs in the Dominican Republic, which will cause him to come
into contact with law enforcement, where he will be subjected to prison abuse, decompensate,
and attempt suicide. Id.

While the Court does not disagree with the Respondent's assertions, see infra, III.E., it
finds that his claimed group lacks sufficient particularity and social visibility to constitute a
particular social group. The Respondent claims that his group is adequately particular because
his illnesses are incurable, require constant treatment, and cause him to act erratically if
untreated, yet there is insufficient evidence in the record that his particular social group is
"perceived as a group by society." A-M-E-, 24 l&N Dec. at 74. Although he has submitted
various articles documenting the discrimination faced by the mentally ill in the Dominican
Republic, see (Exs. 8; 16, Tabs B & C), he has not shown that his social group is viewed by
society in a specific enough manner. See Raffington v. l.N.S., 340 FJd 720, 723 (8th Cir. 2003)
(finding that mentally ill female Jamaicans do not qualify as a particular social group because
they are not "a collection of people closely affiliated with each other, who are actuated by some

7 The BIA renamed the "social visibility" requirement "social distinction" in order to clarify that it does not refer to
the literal or "ocular" visibility of a s ocial group. M-E-V-0-, 26 l&N Dec. at 236; W-G-R-, 26 l&N Dec. at 216;
Patoka, 762 F.3d at 196 n.2. The two terms are substantively identical. M-E-V-G-, 26 I&N Dec. at 236; W-0-R-,
26 l&N Dec. at 216.

11
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common impulse or interest" (quoting Safaie v. I.N.S., 25 F.3d 636, 640 (8th Cir. 1994)).
Finally, the Court finds that the Respondent's proposed social group is not sufficiently discrete.
S-E-G-, 24 I&N Dec. at 584. The characteristics defining the group are subjective and do not
have well-defined boundaries: severe mental illness covers a range of conditions, varying in
severity, and erratic behavior could include a variety of conduct or demeanor. See Mendoza
Alvarez v. Holder, 714 F.3d 1161 (9th Cir. 2013) (upholding the BIA's finding that the particular

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social group of "insulin-dependent persons with mental-health problems, including posttraumatic
stress and depressive disorders" was not "particular" because it included "large numbers of
people with different conditions in different circumstances," and that these individuals have
illnesses "in varying degrees of severity"). Furthermore, there is no precedent from the BIA or
the Second Circuit finding individuals with severe mental illness constitute a particular social
8
group. The Court therefore rejects this proposed social group.

ii. Kinship relationship to his mother

The Respondent also contends that his well-founded fear of persecution is based on the
particular social group of "his kinship relationship to his biological mother." (Ex. 17 at 205). He
claims that his life has been threatened by Mr. Rivas, a man who raped his mother and who has
ties to law enforcement in the Dominican Republic. He alleges that Mr. Rivas was deported after
the altercations with the Respondent and his mother, and that he has since made threats to the
Respondent through the Respondent's cousin, Ms. Hernandez, who lives in the Dominican
Republic. He further contends that Mr. Rivas' motivation to harm him is based on the
Respondent's biological relationship to his mother.

Although kinship ties may substantiate a valid particular social group, see Vumi v.
Gonzales, 502 F.3d 150 (2d Cir. 2007), the Court finds that the Respondent has failed to prove
that his fear of Mr. Rivas is objectively reasonable. INA 101(a)(42)(A); Ramsameachire, 357
F.3d at 178. As discussed above, the Court credits the Respondent's testimony and observes that
his account of Mr. Rivas is consistent with the affidavit submitted by his mother, Ms. Crucey.
See (Ex. 16, Tab C at 459-62). Notwithstanding the terrible violence perpetrated against Ms.
Crucey, the basis of the Respondent's claim rests upon unsubstantiated, second-hand knowledge.
The Respondent admitted that he is not certain whether Mr. Rivas was actually convicted of
criminal charges in the U.S. or whether he was in fact deported to the Dominican Republic. He
also admitted that his only knowledge of the alleged threats Mr. Rivas has lodged against his
cousin in the Dominican Republic is through his mother. His mother, moreover, is an interested
party who was not subject to cross-examination, such that her affidavit is accorded reduced
weight. See Matter of H-L-H- & Z-Y-Z-, 25 I&N Dec. 209, 215 (BIA 2015), remanded on other
grounds sub nom. Hui Lin Huang v. Holder, 677 F.3d 130, 137-38 (2d Cir. 2012). Even giving
her affidavit full weight, however, the Respondent still fails to carry his burden of proof. Ms.
Crucey does not have firsthand knowledge that Mr. Rivas currently resides in the Dominican
Republic, as she states that her knowledge of his deportation is through her siblings. See (Ex.
16, Tab C at 461). Furthermore, although Ms. Crucey alleges that Mr. Rivas is connected with

8 The Court acknowledges that the Respondent submitted three unpublished decisions from the BIA which recognize
that a mental disability is an immutable characteristic and which upheld findings that a mental disability fonned a
basis of a valid particular social group. See (Ex. 16, Tab G). Nonetheless, the Court is not bound by these non
precedential decisions, and finds that the Respondent's circumstances differ from the applicants in these cases.

12
the Dominican police, she only believes this because her brother told her this. See id. The
Respondent also admitted that he has not had direct contact with his cousin who Mr. Rivas has
allegedly threatened, and he has offered no other evidence to substantiate his claims that he
would be harmed by Mr. Rivas if he returned to the Dominican Republic. In sum, the Court
finds that the Respondent's fear of persecution is based on claims that do not amount to "reliable,
specific, objective" evidence that his fear is reasonable. Ramsameachire, 357 F.3d at 178.

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Accordingly, he has failed to establish a well-founded fear of future persecution.

Based on the above considerations, the Court concludes that the Respondent has not
carried his burden of establishing his eligibility for asylum. INA 208(b)(l)(B)(i); 8 C.F.R.
1240.8(d). He has failed to establish that he has a well-founded fear of future persecution based
on potential harm by Mr. Rivas, and he has failed to demonstrate that his proposed social group
is sufficiently particular and socially visible to constitute a protected ground.

D. Withholding of Removal

A claim for withholding of removal is factually related to an asylum claim, but the
applicant bears a heavier burden of proof to merit relief. INA 24l(b)(3). Like an asylum
applicant, an applicant for withholding of removal must establish that a protected ground "was or
will be at least one central reason" for the persecution he experienced or will experience in the
country from which he seeks withholding of removal. Matter of C-T-L-, 25 I&N Dec. 341, 348
(BIA 2010). Where an application for asylum is denied because the applicant failed to
demonstrate the "slight, though discernible, chance of persecution" required for asylum, the
applicant necessarily fails to demonstrate the "clear probability of future persecution" required
for withholding of removal and the "more likely than not" to be tortured standard required for
CAT relief. Lecaj v. Holder, 616 F.3d 111, 119 (2d Cir. 2010); see also Zhang v. INS, 386 FJd
66, 71 (2d Cir. 2007); Ramsameachire, 357 F.3d at 178. Here, the Respondent failed to
demonstrate that either of his alleged protected grounds will be at least one central reason for any
harm he will experience in the Dominican Republic. Therefore, he necessarily fails to carry his
burden of establishing eligibility for withholding of removal under INA 24l(b)(3) on the same
grounds, and his application for withholding will be denied.

E. Convention Against Torture

CAT and its implementing regulations provide that no person shall be removed to a
country where it is "more likely than not" that such person will be subject to torture. See 8
C.F.R. 1208.16, 1208.17, 1208.18. "Torture" is "an extreme form of cruel and inhuman
treatment," defined, in part, as the intentional infliction of severe pain or suffering by, or at the
instigation of, or with the consent or acquiescence of a public official. 8 C.F.R.
1208.18(a)(l)-(2); see also Pierre v. Gonzales, 502 F.3d 109, 121 (2d Cir. 2007) ("The failure to
maintain standards of diet, hygiene, and living space in prison does not constitute torture under
the CAT unless the deficits are sufficiently extreme and are inflicted intentionally rather than as
the result of poverty, neglect, or incompetence."). Acquiescence of a public official requires that
the official have awareness of or remain "willfully blind" to the activity constituting torture prior
to its commission, and thereafter breach his or her legal responsibility to intervene to prevent
such activity. 8 C.F.R. 1208.18(a)(7); Khouzam v. Ashcroft, 361 F.3d 161, 171 (2d Cir. 2004).

13
J

The applicant for CAT protection bears the burden of proof. 8 C.F.R. 1208.16(c)(2).
In assessing whether an applicant has satisfied his burden of proof, the Court must consider all
evidence relevant to the possibility of future torture, including evidence that the applicant has
suffered torture in the past; evidence that the applicant could relocate to a part of the country of
removal where he is not likely to be tortured; evidence of gross, flagrant or mass violations of
human rights within the country of removal; and other relevant information on country

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conditions. 8 C.F.R. 1208.16(c)(3); see also Ramsameachire, 357 F.3d at 184. However, "the
existence of a consistent pattern of gross, flagrant, or mass violations of human rights in a
particular country does not, as such, constitute sufficient grounds for determining that a
particular person would be in danger of being subjected to torture upon his return to that country.
Specific grounds must exist that indicate the individual would be personally at risk." Matter of
J-E-, 23 I&N Dec. 291, 303 (BIA 2002). To meet his burden of proof, an applicant for CAT
relief must establish that someone in his particular alleged circumstances is more likely than not
to be tortured in the country designated for removal. Mu-Xing Wang v. Ashcroft, 320 F.3d 130,
144 (2d Cir. 2003).

An applicant who establishes that he is entitled to CAT protection shall be granted


withholding of removal unless he is subject to mandatory denial of that protection in which case
he shall be granted deferral of removal. 8 C.F.R. 1208.16(c)(4), 1208.17(a). An applicant is
subject to mandatory denial of withholding if he was convicted of a particularly serious crime.
Yet an alien's convictions, no matter how serious, are not a bar to CAT deferral. See 8 C.F.R.
1208. l 7(a); Matter ofG-A-. 23 I&N Dec. 366, 371 (BIA 2002)

The Court finds that the Respondent has met his burden of demonstrating that he would
more likely than not be targeted and imprisoned in the Dominican Republic, where he would be
tortured or killed. It is quite apparent to the Court that the Respondent suffers from severe
mental conditions, cognitive impairments, and physical illnesses-all of which significantly
impact his ability to work and function. The documentary evidence shows that he has been
diagnosed with schizoaffective disorder, unspecified neurocognitive disorder, major depressive
disorder, and stimulant use disorder. See (Ex. 16, Tabs C & F). Medical records, the
psychological examination by Dr. Maria Larifio ("Dr. Larifio"), and the Respondent's testimony
reveal that he has trouble functioning when not on proper medication. He testified that he has
experienced panic attacks, depression, suicidal thoughts, and auditory hallucinations when he is
not receiving treatment for his conditions. He also testified that he tried to commit suicide by
drinking a mixture of chemicals and glass, and Dr. Larifio confirmed that he "has tried to kill
himself 3 times," that he has gone "through a phase of cutting his arms in order to relieve stress,"
and that he "struggles with suicidal ideation about hanging himself." (Ex. 16, Tab C at 481).
Medical records indicate that one of these suicide attempts occurred as recently as March 2014,
and the records show that he has a "history of injurious behaviors." (Ex. 16, Tab F). The reports
also confirm that he has attended both inpatient and outpatient treatment programs prior to his
incarceration, and that he exhibits depression, recurring "psychotic features," and has reported
"hearing voices." Id. Moreover, Dr. Larifio concluded that the Respondent remains
"psychiatrically-vulnerable," and recommended that he "[c]ontinue psychiatric medication" and
"antipsychotic medication in order to control his auditory hallucinations." (Ex. 16, Tab C at
484).

14
. .

Additionally, the evidence of record shows that the Respondent suffers from cognitive
impairments and physical illnesses that further affect his day-to-day functioning. During her
three-hour clinical interview with the Respondent, Dr. Lariiio conducted intelligence testing
which revealed that his "intelligence falls in the 'extremely low' range." (Ex. 16, Tab C at 481).
She specified that he "scored lower than 99% of his same-age peers on a standardized test of
cognitive ability," and explained that these scores are ''usually associated with reduced coping

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skills, impaired reasoning about consequences, and reduced problem-solving skills." Id. at 482.
She furthered that without treatment and a support structure, he "is likely to decompensate." Id.
at 484. Moreover, the evidence demonstrates that he suffers from Hepatitis A, B, and C, and that
he also has been diagnosed with asthma. See (Ex. 16, Tabs C & F). The Respondent and Dr.
Larifio indicated that he was hospitalized for about a month in 2013 due to "[j]aundice and
brown urine" on account of his hepatitis. See (Ex. 16, Tab C at 480).

In addition to his mental and physical conditions, the Respondent is unfamiliar with the
Dominican Republic. He moved to the U.S. when he was eighteen years old and only returned to
the Dominican Republic once, in 1995. He testified that the only family he has there consists of
three or four relatives with whom he is not in touch. The Respondent is unlikely to hold a stable
job, as he requires multiple medications, and Dr. Larifio explained that without continued
treatment and "an appropriate support structure," he is likely to weaken and exhibit "erratic
behavior." (Ex. 16, Tab C at 484). In addition, the Respondent testified in detail how his
symptoms of auditory hallucinations, suicidal ideation, and anxiety led to his drug addiction, and
Dr. Larifio stated that he is even "too psychiatrically-vulnerable to live in a homeless shelter."
(Ex. 16, Tab C at 484).

The Court further finds that the Respondent would likely face discrimination if he were to
seek employment due to his mental illness and status as a deportee. Background evidence
demonstrates that it is nearly impossible for deportees to obtain employment in the formal
economy because they "must register their information into the national criminal database,"
which is "readily accessible by banks, employers and credit agencies." (Ex. 16, Tab D at 159).
Deportees are also "targeted for abusive and discriminatory treatment," are monitored through
"psychological 'checkups,"' and "must have family members sign for them to be released from
police custody." Id. Moreover, the 2015 Department of State Report on the Dominican
Republic ("Country Report") found that "prejudice against persons with disabilities was
pervasive across the cowitry," and that "few resources were dedicated to those with mental
disabilities." Country Report at 34.
9 More significantly, the World Health Organization
("WHO") confirms that conditions in the Dominican Republic make it extremely unlikely the
Respondent would be able to reliably obtain the medical care he requires, as only "0.4% of the
health expenditures [are allocated to] mental health services." (Ex. 16, Tab B at 286). The
WHO reports that "less than 20 percent of the state medical facilities have psychiatric
medications available," and although "an estimated 10 percent of the population is affected by
mental illness, there is only one psychiatric hospital in the country." (Ex. 8 at 47). The WHO
further reports that there is only one mental hospital, one day treatment center, and one resident
facility for mental health patients in the entire country. (Ex. 8 at 202). Because of the
Respondent's mental health history and country conditions in the Dominican Republic, the Court

9 The Court takes administrative notice of the most recent Department of State report because the parties did not

submit the 2015 report. See Yang v. McElroy, 277 F.3d l 58, 162 (2d Cir. 2002).

15
J
.
.

finds it is more likely than not he would return to the same symptoms of paranoia, hallucinations,
and depression that have led to his suicidality and substance abuse, such that it is more like than
not he would revert to self-harm, drug abuse, and engage in criminal behavior, as well as become
homeless due to an inability to support himself.

The Court further finds that this behavior, along with the Dominican Republic's dearth of

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mental health treatment, would cause the Respondent to come into contact with law enforcement
and be incarcerated. See, e.g. (Ex. 8 at 47) (revealing that the one psychiatric hospital in the
country receives less than one percent of the country's total health budget). According to Dr.
Brotherton, a sociology professor who has conducted extensive research on deportees in the
Dominican Republic, "only 7%" of the population affected with mental health conditions
"receiv[es] free medication." (Ex. 16, Tab C at 475). Moreover, the Country Report found that
"poor access to health-care services" was one of the numerous "(t]hreats to life" in Dominican
prisons, that prisoners typically had to buy their own medications, and that most prisons "did not
meet the needs of the prison population." Country Report at 3-4. The report found that "there
were no efforts to provide services to prisoners with mental disabilities in traditional prisons,"
that "[h]ealth and sanitary conditions were generally poor," and that prisons "did not provide
adequate medical care to inmates." Id. at 5. The report further revealed that some prisons
contained "insufficient food and potable water," that "virtually all prisons and detention centers
were overcrowded," and that "mistreatment and violence" were common. Id. at 4-5. These
harsh prison conditions and heightened risk of those suffering from mental illness put the
Respondent at greater risk of harm. His medical reports and testimony indicate his tendency to
engage in erratic behavior, which makes it likely he would suffer abuse in prison.

Such abuse by police and prison guards, when viewed cumulatively with the fact that the
Respondent's health will rapidly decline upon arriving in the Dominican Republic due to a lack
of access to adequate treatment, would result in harsh pain and suffering that is sufficiently
severe to constitute "torture." 8 C.F.R. 1208.18(a); see Poradisova v. Gonzales, 402 F.3d 70,
79-80 (2d Cir. 2005) (instructing that, in the asylum context, events must be considered
cumulatively to decide whether they amount to persecution). In Pierre v. Gonzales, the Second
Circuit held that where background evidence shows that there is a history of prison abuse that
appears biased toward specific populations with histories, characteristics, or medical conditions
that make them more likely to be targeted not only by the individual acts, but also with
particularly harsh conditions of confinement, petitioners can present evidence of those similarly
situated conditions. 502 F.3d at 121-22. The Respondent here is unlike the applicant in Pierre,
who the Second Circuit found was not entitled to CAT protection because he failed to show that
a prisoner with diabetes, or he himself individually, was more likely to be targeted with acts of
abuse by prison guards or with particularly harsh conditions of confinement. By contrast, the
Respondent demonstrates that it is more likely than not that he would be individually targeted by
prison guards due to his mental incapacity and status as a deportee with a criminal record. He
has also demonstrated that it is extremely unlikely he will receive adequate mental health
treatment, and he has shown that his mental and overall health will rapidly deteriorate without
treatment. Thus, based on the Respondent's "particularly alleged circumstances"-a criminal
deportee with mental and physical impairments and no support system in the Dominican
Republic-the Court finds that the conditions of the detention he is likely to experience in the

16
Dominican Republic constitute torture. Mu-Xing Wang, 320 F.3d at 144; J-E-, 23 I&N Dec. at
303-04; Matter ofM-B-A-, 23 I&N Dec. 474, 46 8-79 (BIA 2002).

In reaching its decision in this case, the Court has also specifically considered Matter of
J-F-F-, in which the Attorney General stated that a respondent may not string together a string of
suppositions to support a CAT claim unless he shows that each link in the chain is more likely

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than not to occur. 23 I&N Dec. 912, 917-18 (A.G. 2006). Although the Respondent's claim
rests upon a string of predictions, the Court finds each link in the chain to be more likely than not
to occur. In J-F-F-, the respondent gave contradictory testimony regarding his behavior when
not medicated, and he only put forward his own guess and "a single sentence" from the
Department of State Report about the lack of medications in the Dominican Republic. 23 l&N
Dec. at 918. Here, in contrast, the Respondent has documented the types of behavior he exhibits
when not medicated, and he has offered hundreds of pages of background evidence documenting
the country conditions in the Dominican Republic. Although a few of these articles are arguably
outdated, the majority of the submissions, including the Country Report, are from the past two
'
years, and no evidence has been offered to demonstrate that conditions in the Dominican
Republic have improved. As previously noted, the Respondent also submitted recent records
from Hudson County Correctional Center, which reiterate his need for continued medical
treatment. See (Ex. 16, Tab F).

Furthermore, the torture the Respondent would face in the Dominican Republic would
occur by or with the acquiescence of the government. See 8 C.F.R. 1208.(a)(7); De La Rosa,
598 F.3d at 110 (holding that acquiescence can be found where some government officials would
be complicit in torture and the government as a whole is incapable of preventing it). As noted
above, the harsh prison and psychiatric conditions are carried out by or with the knowledge of
prison staff, who are generally not held accountable. See (Exs. 8; 16, Tab B; Country Report).
The Country Report found "a lack of well-trained prison guards" and reports of sexual abuse.
Country Report at 3. It also reported that "prisons remained effectively outside the control of
authorities" and that "[w]ardens at traditional prisons often controlled only the perimeter, while
inmates ruled the inside with their own rules and system of justice." Id. at 4. Furthermore, other
evidence demonstrates that police killings throughout the Dominican Republic are on the rise.
See (Ex. 16, Tab at 367-89). Amnesty International noted that "[h]undreds of people are shot
and killed every year by members of the National Police," but that officers are not held
accountable due to widespread corruption and general impunity. Id. Such evidence supports the
conclusion that the Dominican government on the whole is both unwilling and incapable of
preventing the torture meted out all too frequently by prison guards and police on mentally ill,
criminal deportees like the Respondent. Thus, public officials will be aware of, and indeed
condone, the torture the Respondent is more likely than not to suffer. Therefore, on the basis of
the foregoing, the Court finds that the Respondent has met his burden of proof for withholding of
removal under the CAT.

Accordingly, after a careful review of the record, the following Order is entered:

17
. '

ORDER

IT IS HEREBY ORDERED that the Respondent's application for asylum under INA 208 be
DENIED;

IT IS FURTHER ORDERED that the Respondent be removed from the U.S. to the Dominican

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Republic based on the sustained charge of removability contained in the NTA

IT IS FURTHER ORDERED that the Respondent's application for withholding of removal


under INA 24l(b)(3) be DENIED;

IT IS FURTHER ORDERED that the Respondent's application for withholding of removal


under Article Three of the CAT be GRANTED.

.t

18

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