                                    NOT FOR PUBLICATION                       FILED
                              UNITED STATES COURT OF APPEALS                   MAY 9 2017
                                                                           MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS
                                     FOR THE NINTH CIRCUIT
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     JAVIER ADAME CHAVARIN,                               No. 15-73518

                Petitioner,                               Agency No. A039-805-421

       v.
                                                          MEMORANDUM*
     JEFFERSON B. SESSIONS III, Attorney
     General,

                 Respondent.


                               On Petition for Review of an Order of the
                                   Board of Immigration Appeals

                                 Argued and Submitted April 7, 2017
                                        Pasadena, California

    Before: M. SMITH and N.R. SMITH, Circuit Judges, and FEINERMAN,**
    District Judge.

            Javier Adame Chavarin petitions for review of an order of the Board of

    Immigration Appeals (BIA) affirming the decision of an Immigration Judge (IJ)



            *
                 This disposition is not appropriate for publication and is not precedent
    except as provided by 9th Cir. R. 36-3.
            **
                 The Honorable Gary Feinerman, District Judge for the U.S. District
    Court for the Northern District of Illinois, sitting by designation.
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denying his motion for administrative closure and his request for deferral of

removal under the Convention Against Torture (CAT). We dismiss the petition as

it pertains to administrative closure and deny Chavarin’s request for deferral of

removal under CAT.

      Chavarin, a citizen of Mexico, lived for many years in the United States as a

legal resident. In 2000, he was convicted of assault with a deadly weapon,

imprisoned, and deported to Mexico upon his release. Family members (who live

in and are citizens of the United States) placed him in a private mental health

treatment facility in Tijuana due to his schizophrenia. Chavarin’s time at the

facility was very difficult; he was attacked by other residents and force-fed

ineffective medication. After leaving the facility, he attempted to re-enter the

United States, but was detained by the Department of Homeland Security and has

remained in detention ever since.

      Chavarin sought deferral of removal under CAT. In support, he offered his

own testimony, the testimony of his family members, a report from Disability

Rights International (DRI) detailing mistreatment of individuals in Mexican mental

health facilities, and a declaration from an expert, Eric Rosenthal, opining that

Chavarin would likely be subject to inhumane and degrading treatment in a mental

health facility should he be returned to Mexico. The IJ found Chavarin’s

testimony credible, but nonetheless denied CAT relief on the ground that the

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evidence did not demonstrate that the Mexican government or individual actors

harbored a specific intent to engage in torture, and that Chavarin’s suggestions as

to why he was likely to be tortured were speculative. The IJ denied administrative

closure on the ground that despite his mental illness, Chavarin was competent to

proceed with the hearing. The BIA affirmed.

      Torture under CAT is defined as:

       [A]ny act by which severe pain or suffering … is intentionally
       inflicted on a person [for a variety of enumerated purposes] …
       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.

8 C.F.R. § 1208.18(a)(1). To constitute torture, “an act must be specifically

intended to inflict severe … pain or suffering. An act that results in unanticipated

or unintended severity of pain and suffering is not torture.” 8 C.F.R.

§ 1208.18(a)(5). Specific intent exists where “the actor intend[s] the actual

consequences of his conduct, as distinguished from the act that causes these

consequences.” Villegas v. Mukasey, 523 F.3d 984, 989 (9th Cir. 2008).

      In Villegas, we considered the very question at issue here—whether

conditions in Mexican mental health facilities can amount to torture for purposes

of CAT—and found that the conditions, though poor, did not demonstrate a

specific intent on the part of the Mexican government to cause severe pain or

suffering, and thus did not amount to torture. Id. at 988-89. Chavarin contends

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that while this may have been the case when Villegas was decided some eight

years ago, the fact that the Mexican government has been on notice of the

conditions in mental health facilities and that those conditions have not

meaningfully improved has transformed what was mere negligence into a specific

intent to cause severe pain and suffering. But as the IJ found, conditions at

Mexican mental health facilities may be poor, but the DRI report also states that

progress has been made. The IJ was permitted on the record to conclude that this

progress defeats any notion that the Mexican government intends to cause severe

pain and suffering, and substantial evidence thus supports the finding that there is

no such intent.

      Citing Cole v. Holder, 659 F.3d 762 (9th Cir. 2011), Chavarin contends that

the IJ erred in failing to consider the Rosenthal declaration. Cole holds that where

“potentially dispositive testimony and documentary evidence is submitted, the BIA

must give reasoned consideration to that evidence.” Id. at 772. But the IJ did

consider the declaration; he just did not find it persuasive in light of the other

record evidence. In particular, although the declaration suggested that it was

virtually inevitable that Chavarin would end up in a public mental institution if

removed to Mexico, the IJ correctly noted that Chavarin had never been

involuntarily placed in a public institution, that his family members testified they

would help him to the extent that they could, and that his only institutionalization

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in Mexico had been in a private institution. Given this, the IJ acted well within his

discretion in finding Rosenthal’s conclusions unpersuasive.

      Finally, Chavarin argues that the IJ erred in denying his motion for

administrative closure based on his alleged incompetence to proceed. We lack

jurisdiction to review a decision to deny administrative closure. Diaz-Covarrubias

v. Mukasey, 551 F.3d 1114, 1118 (9th Cir. 2009).

      Even if we accepted Chavarin’s recasting of this challenge into a due

process claim, his argument still fails because the IJ found that Chavarin was

competent to proceed with counsel. In any event, removal proceedings may go

forward even if the alien is incompetent, provided that appropriate safeguards are

put in place. See 8 U.S.C. § 1229a(b)(3) (“If it is impracticable by reason of an

alien’s mental incompetency for the alien to be present at the proceeding, the

Attorney General shall prescribe safeguards to protect the rights and privileges of

the alien.”); Matter of M-A-M, 25 I & N Dec. 474, 477 (BIA 2011) (“The Act’s

invocation of safeguards presumes that proceedings can go forward, even where

the alien is incompetent, provided the proceeding is conducted fairly.”). Here,

safeguards were firmly in place, including frequent breaks to allow Chavarin to

take his medication, the presence of three attorneys to represent him, and the

involvement of his family members at the hearing. Moreover, the IJ did not make




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adverse credibility determinations against Chavarin. Chavarin received the process

he was due, so the IJ’s decision to proceed did not violate due process.

      Petition for review DENIED in part and DISMISSED in part.




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