Guerra v. Barr, No. 18-71070 (9th Cir. 2020)
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The Ninth Circuit granted a petition for review of the BIA's decision reversing an IJ's grant of deferral of removal under the Convention Against Torture. The panel held that the Board erred by conducting a de novo review of the IJ's factual findings, instead of reviewing them for clear error, as required by 8 C.F.R. 1003.1(d)(3)(i).
In this case, the BIA's failure to evaluate the factual findings of the IJ's conclusion -- that petitioner had established that Mexican officials would have the specific intent to torture him -- that were key to the IJ's holding, indicated that the BIA was not reviewing the IJ's determination for clear error. Because the BIA did not explain why the IJ's findings were illogical, implausible, or not supported by permissible inferences from the record, the panel had no trouble concluding that the BIA failed to apply clear error review to the IJ's finding of specific intent. Furthermore, the BIA failed to apply clear error review to the IJ's finding that petitioner would be tortured in criminal detention in Mexico. Accordingly, the panel remanded for reconsideration.
Court Description: Immigration. The panel granted a petition for review of the Board of Immigration Appeals’ reversal of an immigration judge’s grant of deferral of removal under the Convention Against Torture, holding that the Board erred by conducting a de novo review of the IJ’s factual findings, rather than reviewing them for clear error, as required by 8 C.F.R. § 1003.1(d)(3)(i). Petitioner, who suffers from a mental health condition, argued that because he had no support system in Mexico, he would likely become homeless and end up in the hands of either Mexican law enforcement, or a Mexican mental health institution, where he would more likely than not be tortured. The IJ concluded that petitioner established a clear probability of torture and granted CAT relief, but the Board reversed. The panel held that the Board erred by reviewing the IJ’s factual findings de novo, rather than for clear error, as required by 8 C.F.R. § 1003.1(d)(3)(i). Specifically, the panel concluded that in reversing the IJ’s conclusion that petitioner had established that Mexican officials would have the specific intent to torture him, the Board erred by failing to address the IJ’s key factual findings on which she based her conclusion, and by according more weight to country conditions evidence which the IJ had considered and found unpersuasive. The panel rejected the government’s apparent GUERRA V. BARR 3 argument, relying on Villegas v. Mukasey, 523 F.3d 984 (9th Cir. 2008), that evidence of primitive and abusive practices on mental health patients categorically is insufficient to support an inference of specific intent to inflict harm. The panel also held that in providing an alternative reason why harmful practices persist in Mexico mental health institutions despite international condemnation, the Board appeared to engage in impermissible factfinding in concluding that lack of material resources and other bureaucratic concerns provide plausible explanations for the persistence of problems. Because the Board did not explain why the IJ’s findings were illogical, implausible, or not supported by permissible inferences from the record, the panel held that it had no trouble concluding that the Board failed to apply clear error review to the IJ’s finding of specific intent. Similarly, the panel held that the Board failed to engage in clear error review in reversing the IJ’s finding that petitioner established a clear probability that he would be subjected to torture in criminal detention. The panel concluded that the Board erred by failing to address the IJ’s predicate factual findings, based on petitioner’s specific circumstances, that led to the conclusion that petitioner would more likely than not be tortured. The panel explained that while the Board may disagree with the inferences that the IJ drew, it cannot disregard the IJ’s findings and substitute its own view of the facts. Rather, it must either find clear error, explaining why; or, if critical facts are missing, remand to the IJ. Lastly, the panel held that the Board’s analysis of the likelihood of harm was also flawed because it analyzed the likelihood of harm by Mexican police and officials in mental 4 GUERRA V. BARR health institutions separately, rather than considering “the aggregate risk” that petitioner faces if removed. The panel rejected petitioner’s request for a remand with instructions to grant CAT relief, and instead remanded for the Board to reconsider its decision applying the correct standards.
The court issued a subsequent related opinion or order on September 11, 2020.
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