The Denver-based federal appeals court concluded last month that a man’s risk of mistreatment or forced lobotomy in his native Mexico did not amount to “torture” that should shield him from deportation.

A three-judge panel of the U.S. Court of Appeals for the 10th Circuit noted that Javier Garcia-Botello’s request for protection under the Convention Against Torture required him to demonstrate severe pain or suffering “intentionally inflicted” as punishment, either by the government directly or through the acquiescence of public officials.

Evidence that Garcia-Botello would face “prolonged restraints, psychosurgery, and corporal punishment” if returned to Mexico, wrote Chief Judge Jerome A. Holmes, was not enough in the absence of intent to torture.

“Although certainly shocking to our sensibilities in the United States about how to best and most humanely treat persons with disabilities, these practices do not by their very nature ‘compel the conclusion that they were intended to inflict pain,'” he wrote in the Feb. 25 opinion.

Garcia-Botello overstayed his tourist visa as a teenager and remained in the United States for more than a decade. He attended school, maintained employment, and started a family without incident. At age 26, he was a passenger in a car that crashed at a high speed, ejecting Garcia-Botello and causing severe, permanent injuries.

In addition to physical damage, the accident caused a traumatic brain injury. His impaired cognitive functioning led to numerous encounters with police and criminal convictions. In 2018, the government moved to deport him for his visa overstay, although not for his criminal record.

After the Board of Immigration Appeals expressed concerns about Garcia-Botello’s competency, he received an appointed attorney, who sought to prevent Garcia-Botello’s deportation to Mexico under the Convention Against Torture. Specifically, Garcia-Botello argued his cognitive disability would continue to lead to conflict with police and others.

Garcia-Botello presented evidence of human rights abuses in Mexico against those with disabilities, including “prolonged physical restraints, physical and sexual abuse, lack of privacy and hygiene, electroconvulsive therapy without anesthesia, and even forced lobotomies,” which are now-rare brain surgeries that frequently affect patients detrimentally.

Then-Immigration Judge Matthew W. Kaufman, based in Aurora, found Garcia-Botello credible, but reasoned he had not proven Mexican law enforcement would have the specific intent to inflict pain and suffering on him. Therefore, any harm would amount to “neglect, a lack of resources, or insufficient training or education,” not torture.

Board of Immigration Appeals member Anne Greer upheld the decision to deny relief to Garcia-Botello. She acknowledged Garcia-Botello’s argument that he would be subject to “primitive medical practices,” like a lobotomy, and that Mexico had improved its treatment of people with disabilities in an “inconsistent” and “limited” fashion.

“Nonetheless, the Immigration Judge permissibly determined that these ongoing issues and conditions are insufficient to establish that a public official more likely than not will acquiesce and torture of the respondent,” Greer wrote.

During oral arguments to the 10th Circuit panel in January 2025, the judges similarly were skeptical that any harm to Garcia-Botello in Mexico would meet the specific definition of “torture.”

In the Board of Immigration Appeals’ view, “even if you have this chain of events such that he ends up in a detention facility or he ends up in a mental health institution, the fact that he would be subject to conditions that, in the United States, perhaps, would be viewed as horrific, does not mean that he has been tortured,” said Holmes. “And that is the problem.”

“Is your position that a lobotomy, for instance, which is in the record as something that could happen in a mental institution in Mexico, is (automatically) satisfying the standard of what constitutes torture?” asked Judge Veronica S. Rossman.

Attorney Carolyn M. Welter responded that the lobotomy would most likely occur for the improper purpose of correcting behavior.

“Let’s assume that, in a mental health institution, they have one staff member per 100 patients,” said Holmes. “Which means that they impose punishment on people. They hit them. Corporal punishment in order to do that. Bad, bad thing to do. But is that torture?”

In other words, “they’re not doing it because they get kicks out of it,” he added. “They do it because they have to maintain that facility.”

Ultimately, the panel concluded it was not enough to demonstrate an intent to torture based solely on the severity of the injuries a person would likely face.

“When someone seeking CAT protection can only point to harsh treatment, but cannot show that such treatment is the result of anything other than a country’s ‘economic and social ills,’ that person fails to show a specific intent to torture and cannot obtain CAT relief,” wrote Holmes. “To be sure, all of this may be cold comfort to Mr. Garcia-Botello, but the BIA’s analysis conforms to, and is consistent with, the legal requirements to establish torture.”

Lawyers for Garcia-Botello declined to talk about his case.

The case is Garcia-Botello v. Bondi.