RISVIN DE LEON LOPEZ V. MERRICK GARLAND ( 2022 )

FILED
OCT 21 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RISVIN VALDEMAR DE LEON No. 20-71529
LOPEZ,
Agency No.
Petitioner, A200-569-789
v.
OPINION
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted September 13, 2021
Pasadena, California
Before: Ronald M. Gould, Marsha S. Berzon,
and Daniel P. Collins, Circuit Judges.
Opinion by Judge Berzon;
Dissent by Judge Collins
SUMMARY *
Immigration
Granting Risvin Valdemar De Leon Lopez’s petition for
review of a decision of the Board of Immigration Appeals
upholding the denial of protection under the Convention
Against Torture, and remanding, the panel concluded that
the record in this case compelled the conclusion that two of
De Leon’s attackers during his first attack were police
officers, that the police officers’ participation in the incident
showed acquiescence on the part of the Guatemalan
government, and that the agency disregarded several
important circumstances in concluding that De Leon would
not likely be subjected to future torture.
The agency found that De Leon’s belief that some of his
attackers during his first incident were police officers was
based on speculation, and that the two individuals wearing
police uniforms did so only to make themselves look like
police officers. The panel concluded that the agency’s
assessment was not based on substantial evidence. The
panel explained that De Leon presented four significant
pieces of evidence showing that the two individuals were
police officers: first, De Leon had known the two men for
about twenty years before the incident, and had been told by
people in his small town that they were in fact police
officers; second, the two individuals were wearing police
uniforms at the time of the attack; third, they were armed
*
This summary constitutes no part of the opinion
of the court. It has been prepared by court staff for
the convenience of the reader.
with visible handguns that De Leon recognized as of the
kind, and in the holstered position, typical of national police
officers; and fourth, the Public Ministry to which De Leon
reported the attack indicated that the two individuals had left
the police force shortly after the attack, thus confirming that
they were members of the police during the incident. The
panel concluded that the agency’s reasons for doubting that
the individuals were police officers was not supported by
substantial evidence.
Because the record compelled the conclusion that the
two individuals involved in De Leon’s attack were police
officers, the panel concluded that the agency’s determination
that De Leon did not establish government acquiescence
could not stand. The panel explained that government
acquiescence is not required when instances of past torture
are directly inflicted by a public official, even if that official
has gone “rogue” by acting outside his or her
authority. Moreover, the panel noted that the two
individuals not only participated in De Leon’s beating, but
also acquiesced during that incident in the actions of the
other assailants by failing to use their official authority to
prevent De Leon from being repeatedly stabbed.
In light of the ambiguity in the BIA’s conclusion with
respect to the question whether De Leon was subjected to
past torture and the absence of any explanation for a
conclusion on that question, if made, the panel remanded
that issue for further consideration. The panel also
concluded that the agency’s analysis of the probability that
De Leon would be subjected to future torture disregarded
several critical factors, including myriad contextual
considerations pertinent to the likelihood of future torture,
and so must be redone.
Dissenting, Judge Collins wrote that the majority’s
decision resurrected many of the same flawed legal
standards that the court previously applied in immigration
cases, and that were expressly rejected by the Supreme Court
in its unanimous decision in Garland v. Ming Dai, 141 S. Ct.
1669 (2021). First, by taking as credible every detail in De
Leon’s testimony, even though the IJ found only that De
Leon testified in a “generally” or “essentially” credible
manner, the majority disregarded the principle that the
agency is free to credit part of a witness’ testimony without
necessarily accepting it all. Second, even if the majority
were right in thinking that every detail of De Leon’s
testimony should be deemed credible, the majority further
erred by effectively reviving the “deemed true” rule. And
third, the majority disregarded the Supreme Court’s clear
instruction that the court may not overturn a factual finding
if the record contains contrary evidence of a kind and quality
that a reasonable factfinder could find sufficient.
COUNSEL
Karla L. Kraus (argued), Kraus Law Corporation, San
Diego, California, for Petitioner.
John B. Holt (argued), Juria J. Jones, and Scott M.
Marconda, Trial Attorneys; Claire L. Workman, Senior
Litigation Counsel; Leslie McKay, Assistant Director;
Jeffrey B. Clark, Acting Attorney General; Civil Division,
Office of Immigration Litigation, Washington, D.C.; for
Respondent.
DE LEON LOPEZ V. GARLAND 1
OPINION
BERZON, Circuit Judge:
Risvin Valdemar De Leon Lopez (“De Leon”), a native
and citizen of Guatemala, petitions for review of a Board of
Immigration Appeals (“BIA”) decision dismissing his
appeal of an Immigration Judge’s (“IJ”) order denying his
application for relief under the Convention Against Torture.
We conclude: (1) the record in this case compels the
conclusion that two of De Leon’s attackers were police
officers during a July 2011 incident; (2) De Leon showed
acquiescence on the part of the Guatemalan government with
respect to that incident because government officials—
namely, the two police officers—directly participated in the
incident; and (3) the record indicates that the IJ and BIA’s
conclusion that De Leon is not likely to be subjected to
torture with government acquiescence if returned to
Guatemala disregards several important circumstances
pertinent to evaluating the likelihood of future torture. In
light of these errors, we grant the petition and remand for the
agency to reconsider De Leon’s application for relief.
I.
De Leon entered the United States without inspection in
2003 and stayed until the middle of 2007. He returned to
Guatemala then because his oldest daughter was sick and
stayed until the end of the year. De Leon next entered the
United States, again without inspection, in 2008. He stayed
until he pleaded guilty to driving under the influence and was
removed, in 2011. De Leon entered the United States
without inspection once more on January 5, 2012. He
testified that on his return to Guatemala in 2011, he
experienced two episodes of violence at the hands of the
Guatemalan police.
2 DE LEON LOPEZ V. GARLAND
A.
De Leon testified as to what happened to him in
Guatemala as follows:
1. De Leon was attacked in July 2011, two days after he
arrived back in Guatemala. Earlier that day, De Leon had
left his home in Aldea Galvez, a small village that is part of
a larger town, Flores Costa Cuca, to visit a park with two
friends. The three of them returned on a bus that afternoon.
As they stepped off the bus, De Leon and his friends were
approached by Melvin Baten and Elder Ramos. Baten and
Ramos knew De Leon had just returned from the United
States and so asked him for money. When De Leon refused,
he was attacked by Baten and Ramos; Israel Augustin
Alvarado, Oljoel Pascual Gomez,1 and Minor Rojas also
participated in the attack. At the time of the attack, Alvarado
and Gomez were dressed in the uniform of the National Civil
Police (“PNC”), carried handguns consistent with those of
PNC officers, and were known by the Aldea Galvez
community to be police officers.
The assailants started by “throwing rocks at [De Leon]
with slingshots.” De Leon was hit in the chest and legs.
When he bent down from pain, the attackers came towards
De Leon and “stepped on [his] right hand.” They beat him
with their fists and kicked him. Baten then “stabbed [De
Leon] with a knife on the hand” and Ramos stabbed De Leon
“with a machete on [his] right arm” and his “left shoulder.”
The assailants took De Leon’s money and told him “we are
going to kill you.” Alvarado and Gomez never tried to stop
the other men from stabbing De Leon and actively
1
At times, the record refers to Gomez as Joel instead of Oljoel, and
as Lopez or Lopez Gomez instead of Gomez. This opinion will refer to
him as Gomez.
DE LEON LOPEZ V. GARLAND 3
participated in the beating. De Leon tried to defend himself,
but Gomez hit him on the head with either a gun or baton,
making De Leon lose consciousness. De Leon was later told
by a relative that he was unconscious for half an hour.
De Leon knew all five men before the incident and,
according to the IJ, “identified [them] in great detail” in his
testimony. The men lived in the same small town as De
Leon; some had gone to school or worked with him. With
respect to Alvarado and Gomez, De Leon had known each
of them for around twenty years before the incident. De
Leon testified that he knew Alvarado and Gomez worked for
the police in the Flores Costa Cuca station because of
“conversations [De Leon] had with people” in his small
town, where “everybody knows what’s going on.”
De Leon’s friends, who had run away, returned to the
scene of the incident along with De Leon’s aunt and uncle;
the relatives thereafter witnessed part of the attack. De
Leon’s aunt called the police. By the time the police arrived,
the five assailants had left. The summoned police officers
spoke with several witnesses at the scene of incident and
later filed a report detailing the location of the incident and
the names of De Leon’s attackers. The names were given to
the police by persons at the scene, who “didn’t give [their
own] names for fear of [retaliation].”
The police report said that the witnesses had identified
“the individuals” who attacked De Leon as members of the
18th Street Gang. De Leon clarified in his testimony that
three of the men (Ramos, Baten, and Rojas) were members
of that gang. He also stated that he heard from the neighbors
in his small town that Alvarado and Gomez were also
“involved together with the gangs” in an extortion ring
targeting local small businesses. De Leon testified that he
4 DE LEON LOPEZ V. GARLAND
never saw the assailants again; he believed they may have
gone to Mexico.
That day, De Leon was taken to a hospital in Coatepeque.
He received stitches on his right bicep, seven stitches on his
left shoulder, eight stitches on his hand, and sixteen stitches
on his head. De Leon also had “two tendons cut from [his]
three fingers” that “were stitched internally,” and cuts on his
neck. The doctors prescribed medication for pain and to
prevent inflammation, infection, and tetanus.
De Leon went to a clinic close by Flores Costa Cuca
three times afterward for wound treatment. He could not
work for the first three months after the attack, and it took
approximately one year for him to recover physically from
his injuries. De Leon also “consulted with a psychologist,”
and “complained of having suffered psychological damage,
such as difficulty sleeping, memory loss, [and] panic
attacks.” His psychological trauma persisted at the time of
the hearing.
After two months passed, De Leon realized that “nothing
was done” about the attack: the police “didn’t go after the
people that had beaten [him]” and his assailants “were never
caught.” Convinced that the police would not follow up on
the report from July without being prompted, De Leon in
September 2011 again reported the attack to the PNC of
Flores Costa Cuca, the same office where Alvarado and
Gomez worked as police officers. After De Leon told an
officer at the Flores Costa Cuca station that two of their own
officers had attacked him, the officer stated “[t]hat they
couldn’t deal with [his] case there,” but told De Leon he had
“a very strong case, that it was attempted murder, [and] that
[he] should go to . . . [the] public ministry.” De Leon
understood the officer’s reference to “very strong case” as
indicating that the Flores Costa Cuca police “would be
DE LEON LOPEZ V. GARLAND 5
incapable of dealing with [his] kind of case[]” as it was “too
difficult” and required “a deeper investigation.” De Leon
emphasized his belief that the police were “corrupt,” that
they “let themselves be bribed very easily,” and that he
doubted the coworkers of Alvarado and Gomez would be
willing to take action against them.
As advised by the local police office, De Leon went to
the Public Ministry of Coatepeque, a prosecutorial and
investigative government agency semi-independent from the
Guatemalan executive branch, to report the incident. His
statement was taken and an investigation opened. The
Public Ministry informed De Leon that Ramos, Baten, and
Rojas were already under investigation because other
complaints had been filed against them. The record also
suggests that the Public Ministry indicated to De Leon that
Alvarado and Gomez left the police force shortly after the
attack. Specifically, the following exchange occurred
between De Leon and the IJ:
IJ to De Leon: So after you were beaten, the two men
involved who wore the police uniforms, stopped
working for the police, as far as you know.
De Leon to IJ: Yes.
IJ to De Leon: And how do you know that? How did
you learn that?
De Leon to IJ: The public ministry tried to investigate
them.
IJ to De Leon: And they had already left their police job.
De Leon to IJ: That’s right.
6 DE LEON LOPEZ V. GARLAND
De Leon interacted with officials from the Public Ministry
about three times.
In addition, De Leon filed a complaint with the Office of
the Attorney General. He believed the Office issued
warrants against the five assailants. De Leon met with
officials from the Attorney General’s Office four times. To
De Leon’s knowledge, as of January 2018, his assailants had
not been tracked down and no one had been taken into
custody for his assault.
2. De Leon had a second incident with Guatemalan
police. In October 2011, De Leon went with his mother to
Mexico, about an hour and a half from his home, to purchase
goods for resale in her small store in Guatemala. Their
return bus was stopped by police officers. The officers told
De Leon and his mother to get out of the bus because “they
wanted some money, [or] if not they were going to take the
merchandise.” When De Leon refused, the officers
handcuffed him and took him to the central police station.
At the station, De Leon was brought to a room where
three officers took turns beating him with their hands and
batons and kicking him with their feet. He was detained for
around two to two and a half hours. Before leaving, De Leon
told the officers “that [he] was going to the human rights
[organization]” to report them. The police officers then told
De Leon that “if [he] went to the human rights organization
that [he] was going to have problems with them.”
De Leon bought acetaminophen and was injected with an
anti-inflammatory medication for his injuries. The next day,
De Leon made a report to a government-affiliated human
rights organization in Coatepeque. The organization took
his statement and said they were going to do an
investigation. But they never followed up with De Leon, and
DE LEON LOPEZ V. GARLAND 7
he never received “any information about them doing any
type of investigation.”
3. Afraid to stay in Aldea Galvez after the police said
“[he] was going to have problems with them” for making the
human rights report, De Leon went to Guatemala City in
December 2011. While he was in Guatemala City, two men
carrying weapons went to his uncle’s house in Aldea Galvez
“and asked [about De Leon’s] whereabouts.” Two armed
men also went to the agricultural field where De Leon had
worked and to the cemetery near his home, asking for him.
De Leon feared that these men were the officers who had
beaten him in October 2011 and that they wanted to carry
out their earlier threats and murder him, as he had made a
human rights report against them. De Leon stayed in
Guatemala City for about one month and did not “have any
problems” there.
De Leon left Guatemala in January 2012 because he was
afraid of being “persecuted . . . or tortured or killed” by
police officers. He testified that as he was on his way to the
United States, his mother called and informed him that three
armed police officers had come to her home “at 1:00 in the
morning” looking for him. The officers told De Leon’s
mother they were searching for De Leon and “they were
going to come back and look for [him] later.”
B.
In June 2015, about three and a half years after De Leon
arrived back in the United States, he was detained by
Immigration and Customs Enforcement (“ICE”) after a
police call concerning an argument with his domestic
partner. ICE arrested De Leon and issued a Notice of
Intent/Decision to Reinstate Prior Order based on his June
2011 removal. De Leon expressed a fear of returning to
8 DE LEON LOPEZ V. GARLAND
Guatemala and was interviewed by an asylum officer. The
asylum officer found that De Leon had “established a
reasonable fear . . . that he could be tortured if he’s returned”
to Guatemala.
De Leon was then referred to an IJ and applied for relief
under the Convention Against Torture. At the June 2018
merits hearing before the IJ, De Leon testified to the facts
recited above about the two 2011 incidents. He averred that,
to his knowledge, the five men from the July 2011 incident
had not returned to Guatemala, but “it would be very easy
for them to find out” if De Leon returned to their small town,
because their family members live there. De Leon also
testified to his fear that the five men would seek to “eliminate
him” upon his return, because “they would believe that [he]
would continue with [his] case” against them. De Leon did
not believe that the police would protect him from any
attacks because, he stated, the police in Guatemala tend to
be corrupt and generally neglect their duties. De Leon also
noted that the police accept bribes, and he felt it would be
“likely” or “probable” that the attackers’ families would
bribe the police to keep them from protecting De Leon.
De Leon also voiced his fear that the police from the
October 2011 incident would seek to “kill him” if he
returned to Guatemala, “because they are aware that he had
reported them to the human rights organization.” He noted
that he would not feel safe even if he moved to another city
in Guatemala such as the capital city, because when corrupt
officers “really want you—when they want to go after
someone they go to Guatemala [City] and they go look for
you.”
During the merits hearing, the IJ initially would not
accept the latest country conditions report for Guatemala on
the ground that De Leon’s counsel should have filed it with
DE LEON LOPEZ V. GARLAND 9
the court earlier. After De Leon’s counsel pointed out that
the “regulations say that the court must refer to” the country
conditions report, the IJ accepted the country conditions
report, moments before rendering her oral decision.
The country conditions report states that one of the
“[p]rincipal human rights abuses” in Guatemala is
“widespread institutional corruption, particularly in the
police” force. It indicates that “abuse and mistreatment” of
civilians at the hands of PNC members is common; that there
are “credible reports of extrajudicial arrests [and] illegal
detentions”; that the Guatemalan police frequently accept
bribes or extort civilians; and that the government lacks
effective mechanisms to investigate and prevent such
wrongdoing. Finally, the report indicates that non-corrupt
police officers commonly neglect to investigate or punish
their corrupt peers beyond merely “transferr[ing]” them to
other offices, which has led to widespread “impunity” for
corrupt officials.
At the conclusion of the merits hearing, the IJ found that
“[e]ssentially [De Leon] testified in a credible manner” but
“ha[d] not established that it is more likely than not that he
will be tortured with the consent or acquiescence of the
authorities in Guatemala” should he be returned there. The
IJ concluded that his “testimony was based in significant part
on his speculation of who harmed him and why they harmed
him and who might harm him in the future.” “Speculation
alone,” the IJ stated, “isn’t sufficient to establish
respondent’s case.”
De Leon appealed to the BIA. The BIA agreed with the
IJ that De Leon’s “assertion that several of the individuals
who harmed him in Guatemala were police officers seems to
be based on his own speculation.” The BIA dismissed De
Leon’s appeal, concluding that: (1) the two attackers who
10 DE LEON LOPEZ V. GARLAND
appeared to be police officers were not actually police
officers; (2) even if the two attackers were police officers,
“the record does not indicate that they tortured [De Leon]
and that the government of Guatemala acquiesced to such
torture”; and (3) “the record indicates that [De Leon] could
. . . live in Guatemala City or another part of Guatemala
without any harm.” The BIA did not mention the country
conditions report. This petition for review followed.
C.
“Where, as here, the BIA agrees with the IJ’s reasoning,
we review both decisions.” Garcia-Martinez v. Sessions,
886 F.3d 1291, 1293 (9th Cir. 2018). The BIA’s
interpretation of legal questions is reviewed de novo. Zheng
v. Ashcroft, 332 F.3d 1186, 1193 (9th Cir. 2003). With
regard to the factual findings underlying an IJ or BIA
determination, the court reviews for substantial evidence,
meaning that the determination must be supported by
“reasonable, substantial, and probative evidence on the
record.” Lopez v. Sessions, 901 F.3d 1071, 1074 (9th Cir.
2018). If any reasonable adjudicator would be compelled to
conclude to the contrary of the IJ or BIA based on the
evidence in the record, then the finding is not supported by
substantial evidence. Garland v. Ming Dai, 141 S. Ct. 1669,
1677 (2021) (citing 8 U.S.C. § 1252(b)(4)(B)). But if the
record contains evidence supporting the IJ or BIA’s
conclusion and a reasonable factfinder could find that
evidence sufficient, a reviewing court cannot overturn the
agency’s factual determination. Id.Several additional points are worth noting about the
substantial evidence standard. First, although the standard is
“highly deferential,” id., “deference does not mean
blindness,” Garcia v. Wilkinson, 988 F.3d 1136, 1142 (9th
Cir. 2021) (quoting Parada v. Sessions, 902 F.3d 901, 909
DE LEON LOPEZ V. GARLAND 11
(9th Cir. 2018)), and no deference is due to “inference[s]
drawn from facts which are uncertain or speculative and
which raise only a conjecture or a possibility,” Cal. State
Water Res. Control Bd. v. FERC, 43 F.4th 920, 930 (9th Cir.
2022) (quoting Woods v. United States, 724 F.2d 1444, 1451
(9th Cir. 1984)). Second, the substantial evidence standard
requires review of the record “as a whole,” not a “specific
quantum of supporting evidence.” Garrison v. Colvin, 759
F.3d 995, 1009 (9th Cir. 2014) (quoting Lingenfelter v.
Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007)); see also
Bringas-Rodriguez v. Sessions, 850 F.3d 1051, 1059 (9th
Cir. 2017). Third, applying the substantial evidence standard
after the Supreme Court’s decision in Ming Dai, the Ninth
Circuit has set aside the BIA’s factual findings when the
basis for the findings was insufficient or illogical. See, e.g.,
Gonzalez-Castillo v. Garland, 47 F.4th 971, 979–80 (9th
Cir. 2022); Ballinas-Lucero v. Garland, 44 F.4th 1169, 1180
(9th Cir. 2022); Barseghyan v. Garland, 39 F.4th 1138,
1145–46 (9th Cir. 2022); Plancarte Sauceda v. Garland, 23
F.4th 824, 835 (9th Cir. 2022); Munyuh v. Garland, 11 F.4th
750, 764 (9th Cir. 2021); Vasquez-Rodriguez v. Garland, 7
F.4th 888, 898–99 (9th Cir. 2021).
II.
The Convention Against Torture prohibits the United
States from returning anyone to a country where “it is more
likely than not that he or she would be tortured.” 8 C.F.R.
§ 1208.16(c)(2). In evaluating a Torture Convention claim,
“the IJ must consider all relevant evidence; no one factor is
determinative.” Maldonado v. Lynch, 786 F.3d 1155, 1164
(9th Cir. 2015) (en banc). Relevant evidence includes, but
is not limited to: (1) “evidence of past torture inflicted upon
the applicant”; (2) “evidence that the applicant could
relocate to a part of the country of removal where he or she
is not likely to be tortured”; (3) “evidence of gross, flagrant
12 DE LEON LOPEZ V. GARLAND
or mass violations of human rights within the country of
removal, where applicable”; and (4) “other relevant
information regarding conditions in the country of removal.”
8 C.F.R. § 1208.16(c)(3) (capitalization simplified).
Here, several of the IJ and BIA’s key factual findings and
legal conclusions regarding whether De Leon was subject to
past torture are not supported by the record, and the BIA’s
determination regarding the likelihood of future torture
disregards or mis-analyzes several pertinent considerations,
including the Guatemala country conditions report and the
threats of future harm made against De Leon.
A.
1. The IJ and BIA concluded that De Leon had not
established that his attackers during the July 2011 incident
were police officers. Instead, “these individuals wore police
uniforms or uniforms that made them look like police
uniforms but they were not . . . actually police employees”—
i.e., they were imposters. Although the IJ found De Leon
“credible” and did not doubt the sincerity of his belief that
two of his attackers were police officers, the IJ and the BIA
concluded that De Leon’s belief was “based on his own
speculation” and was “not supported” by the police report.
Those assessments are not supported by substantial
evidence.
De Leon presented four significant pieces of evidence
that two of his attackers, Alvarado and Gomez, were police
officers. First, De Leon had known Alvarado and Gomez for
about twenty years at the time of the incident. He had been
told that the two men were police officers by people in his
small town who were likely to know whether they were, in
fact, police officers. Second, Alvarado and Gomez were
wearing police uniforms at the time of the attack. Third,
DE LEON LOPEZ V. GARLAND 13
Alvarado and Gomez were armed with visible handguns that
De Leon recognized as of the kind and in the holstered
position typical of PNC officers. Fourth, the Public Ministry
in Coatepeque indicated to De Leon that Alvarado and
Gomez had left the police force shortly after the attack, thus
confirming that they were members of the PNC during the
July 2011 incident. Nothing in the IJ or BIA opinions
suggests that De Leon was inaccurate or mistaken with
regard to any of these factors.
The IJ and BIA nonetheless concluded that Alvarado and
Gomez were not actually police officers even though when
they attacked De Leon they were dressed and carried guns as
if they were. The record as a whole cannot be reasonably
understood to support this conjecture. See Garrison, 759
F.3d at 1009.
First, the IJ relied upon the police report about the
July 2011 incident, which identified “the individuals” who
attacked De Leon as associated with a street gang, for its
finding. The report does not support the IJ’s speculation.
The police report summarized what witnesses to the incident
said; it did not specifically name Alvarado and Gomez as
gang members; and it did not say that Alvarado and Gomez
were not police officers. It is, of course, possible for law
enforcement officers to be associated with a street gang. De
Leon testified that, according to the neighbors in his small
town, Alvarado and Gomez were “involved together with the
gangs” in an extortion ring targeting small stores. The
country conditions report indicates that such extortion is
widespread in Guatemala. On the record as a whole, the
absence in the police report of a statement that the two
individuals dressed as police officers were police officers is
not substantial evidence for the IJ’s finding.
14 DE LEON LOPEZ V. GARLAND
Second, the IJ characterized De Leon as “chang[ing] . . .
his testimony” with respect to whether Alvarado was a
police officer at the time of the attack. In its briefs to us, the
Government, going one step further, states that De Leon
“repeatedly testified that [Alvarado and Gomez] were
former police officers.”
De Leon never used the phrase “former police officers.”
He consistently explained in his 2018 testimony that both
Alvarado and Gomez were police officers at the time of the
July 2011 incident. For example, when directly asked if
“after you were beaten, the two men involved [in the July
2011 incident] who wore police uniforms, stopped working
for the police,” De Leon responded, “Yes.” And when De
Leon was specifically asked by the IJ when “one of the men,
Israel, used to work for the police,” he said “[i]n 2011 and
before then.”
The IJ focused on De Leon’s occasional use of the past
tense during his testimony, suggesting that De Leon was
inconsistent about whether Alvarado and Gomez were police
officers at the time they attacked him. What De Leon said
at his hearing was that Alvarado “used to work with the
police” and Gomez “also was working in the police.”
De Leon was testifying about an incident that had occurred
about seven years earlier, and Alvarado and Gomez had left
the police force after the incident. So, at the time of De
Leon’s testimony, it was accurate for him to say that the two
men used to work with the police. The IJ’s grammatical
dissection is both flatly incorrect, given the time frames, and
contradicted by De Leon’s specific explanation as to what he
meant by “used to work with the police.” Again, the IJ’s
inference is simply not supported by the factual record.
Finally, the IJ stated that De Leon “offered no cogent
explanation of why the police would take a report, list these
DE LEON LOPEZ V. GARLAND 15
individual’s names and then pretend they weren’t police if in
fact they were police officers.” She further remarked that
“[i]t’s clear if these two men had been police officers who
were actively working for the forces the authorities would
know that and they would be easy to identify and locate.”
Additionally, the IJ pointed out that the attackers from the
July 2011 incident fled the country, “indicating that they
feared the police.” The IJ ultimately concluded that
Alvarado and Gomez must have “wor[n] police uniforms or
uniforms that made them look like police,” but that “they
were not in fact actually police employees.”
Regarding the omission of the attackers’ occupations,
the police report did not mention the occupation of any of
the five attackers. So the omission of Alvarado’s and
Gomez’s occupation does not stand out as notable. Also, De
Leon did offer an explanation as to why the authorities
would decline to identify Alvarado and Gomez as police
officers in the police report—that officers in Guatemala
commonly neglect to investigate or punish their peers for
purported wrongdoing, preferring instead to look the other
way. The country conditions report supports De Leon’s
explanation.
Regarding the IJ’s suggestion that if Alvarado and
Gomez were police officers they would be easy to track
down, the record indicates that Alvarado and Gomez left the
police force and fled the country shortly after the July 2011
altercation. That Alvarado and Gomez left the country after
the attack supports an inference that they feared the police
but does not support the inference that they were not police
officers at the time of the attack. Corrupt police officers can
fear that they will be caught and prosecuted.
In addition, the IJ and BIA cite no evidence that gang
members in Guatemala dress up as police officers when
16 DE LEON LOPEZ V. GARLAND
extorting civilians. The idea that they would have done so
during the July 2011 incident is undermined by a fact that
the IJ and BIA glossed over—De Leon’s attackers from the
second incident in October 2011, who were also wearing
police uniforms, handcuffed him and brought him to the
central police station before they took turns beating him with
their hands, batons, and feet. That De Leon was beaten and
detained in a police station in October 2011 provides strong
evidence that his attackers from that incident were law
enforcement officers, thereby confirming that police officers
in De Leon’s area of Guatemala engage in beatings and
extortion.2 Again, the substantial evidence standard requires
consideration of the record as a whole, see Garrison, 759
F.3d at 1009; here, any inference that a beating by actual
police officers was improbable is belied by the evidence that
such a beating had actually occurred, in a police station.
One final point regarding whether Alvarado and Gomez
were police officers: At oral argument, there was a
suggestion that, even if Alvarado was a police officer,
Gomez may not have been, because De Leon indicated in his
2018 testimony that, at one time, he and Gomez had worked
together “harvesting coffee at a farm.” When De Leon was
asked what Gomez “did for a living at the time [De Leon]
returned to Guatemala in 2011,” De Leon stated that, like
Alvarado, Gomez “also was working in the police.”
De Leon explained he knew this not only because Gomez
was wearing a PNC uniform on the day of the July 2011
incident, but also because Gomez “live[d] in the same small
village,” where “everybody knows what’s going on.” That
De Leon and Gomez worked together at a coffee farm some
2
The IJ found that the October 2011 incident did not rise to the level
of past torture. The police officers’ extortion and beating of De Leon in
October 2011 nevertheless provide support for his statement that other
officers extorted and beat him in July 2011.
DE LEON LOPEZ V. GARLAND 17
time in the past does not supply the missing evidence
sufficient to find that Gomez was not an officer at the time
of the July 2011 attack.3
We conclude that the record compels the conclusion that
two of De Leon’s attackers were police officers during the
July 2011 incident. There is not substantial evidence in the
record—really, no evidence—that Alvarado and Gomez
were faux police officers. Put differently, no reasonable
factfinder could have concluded that Alvarado and Gomez
were imposters, dressed up like police officers but not
actually employed in the PNC police force, when they
attacked De Leon.
2. The dissent, citing to parts of the administrative
record not discussed at all in the IJ or BIA decisions or in the
briefing before this Court, argues that “this is most definitely
not a case in which the record compels acceptance of ” De
Leon’s statement that he had known Gomez and Alvarado
for twenty years and knew that they were police officers at
the time of the attack. Dissent at 37–40. The evidence cited
by the dissent to challenge De Leon’s credibility with respect
to the identity of the police officers cannot be the basis to
sustain the IJ’s decision, for three independent reasons.
First, the IJ’s credibility determination forecloses the
dissent’s own conclusions as to whether De Leon was
testifying to what he believed to be true. As Ming Dai
instructs, the Immigration and Nationality Act distinguishes
between “credibility” and “persuasiveness.” 141 S. Ct. at
1680–81. Although the IJ did not find the entirety of De
3
In any event, it is sufficient for the purpose of determining whether
De Leon suffered past torture at the hands of government officials that
one such official, Alvarado, participated in the attack. See infra pp. 19–
20.
18 DE LEON LOPEZ V. GARLAND
Leon’s testimony persuasive, she repeatedly concluded that
De Leon’s testimony was credible in the sense that De Leon
“believed that two of these men were police officers.” The
IJ noted that De Leon “identified [his attackers] in great
detail,” “stated . . . [that] they were wearing police
uniforms,” and “testified that he has known them for a long
time.” 4
“We may not supply a reasoned basis for the agency’s
action that the agency itself has not given.” Motor Vehicle
Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co.,
463 U.S. 29, 43 (1983). The dissent’s reliance on evidence
in the record that the government or the IJ could have raised
to challenge De Leon’s credibility but did not amounts to an
impermissible judge-made negative credibility finding that
directly conflicts with the agency’s own determination. See
Dissent at 37–40. But “the IJ is in the best position to assess
the trustworthiness of the applicant’s testimony,” Bassene v.
Holder, 737 F.3d 530, 536 (9th Cir. 2013), and its credibility
determinations are accorded “special deference,” Khadka v.
Holder, 618 F.3d 996, 1000 (9th Cir. 2010). The dissent’s
attempt to undermine De Leon’s credibility with portions of
the record never alluded to by or before the agency is
improper.
Second, under well-established Ninth Circuit precedent,
De Leon cannot be denied relief due to any alleged
inconsistencies in his testimony absent an opportunity to
respond to them. “If the IJ relies upon purported
inconsistencies to make an adverse credibility
4
The dissent accuses us of “reviv[ing] the very ‘presumption of
credibility’” rejected by Ming Dai. Dissent at 31. But our analysis rests
on the IJ’s credibility finding regarding De Leon’s belief that two of his
attackers were police officers, not on a presumption of credibility. The
IJ’s conclusion that De Leon’s belief was based on “speculation” speaks
to the persuasiveness of De Leon’s belief, not its credibility.
DE LEON LOPEZ V. GARLAND 19
determination, the IJ must provide the noncitizen with an
opportunity to explain each inconsistency . . . .” Barseghyan
v. Garland, 39 F.4th 1138, 1143 (9th Cir. 2022); see also
Rizk v. Holder, 629 F.3d 1083, 1088 (9th Cir. 2011),
overruled in part on other grounds by Alam v. Garland, 11
F.4th 1133 (9th Cir. 2021) (en banc). De Leon was not
provided with an opportunity to explain the alleged
inconsistencies the dissent raises for the first time in this
case. So, even if otherwise pertinent, the evidence cited by
the dissent could not be used to deny relief to De Leon under
binding precedent.
Third, at no point in the Government’s brief did it
challenge De Leon’s credibility or raise the alleged
inconsistencies offered by the dissent. “Generally, an
appellee waives any argument it fails to raise in its answering
brief.” United States v. Dreyer, 804 F.3d 1266, 1277 (9th
Cir. 2015) (en banc). None of the exceptions to the waiver
rule apply in this case; in fact, accepting the dissent’s sua
sponte credibility attack without offering De Leon an
opportunity to respond would create—not prevent—a
“miscarriage of justice.” Id.
3. The IJ and BIA reasoned that even if the July 2011
beating of De Leon constituted torture, the record does not
indicate that the government acquiesced in such torture.
That determination cannot stand if, as we conclude, the
record compels the conclusion that two of the attackers were
police officers. An applicant for relief under the Convention
Against Torture is “not required to show acquiescence” by
the government when instances of past torture are directly
inflicted by a public official, Avendano-Hernandez v. Lynch,
800 F.3d 1072, 1079–80 (9th Cir. 2015), even if that official
has gone “rogue” by acting outside his or her authority,
Barajas-Romero v. Lynch, 846 F.3d 351, 362 (9th Cir.
2017).
20 DE LEON LOPEZ V. GARLAND
Alvarado and Gomez directly inflicted severe pain and
suffering on De Leon by participating in the July 2011
beating. They also acquiesced during that incident in the
actions of the other assailants by failing to use their official
authority to prevent De Leon from being repeatedly stabbed
with a knife and a machete. See Ornelas-Chavez v.
Gonzales, 458 F.3d 1052, 1059 (9th Cir. 2006) (citing
8 C.F.R. § 208.18(a)(7)). As the record compels the
conclusion that Alvarado and Gomez were police officers at
the time of the incident, De Leon need not show any other
acquiescence on the part of the Guatemalan government. Id.
4. The Torture Convention defines torture as “any act by
which severe pain or suffering, whether physical or mental,
is intentionally inflicted on a person for such purposes as . . .
punishing him . . . for an act he . . . has committed . . . when
such pain or suffering is inflicted by, or at the instigation of,
or with the consent or acquiescence of, a public official
acting in an official capacity or other person acting in an
official capacity.” 8 C.F.R. § 1208.18(a)(1). The regulation
does not require that past torture or “the prospective risk of
torture be on account of certain protected grounds.”
Kamalthas v. INS, 251 F.3d 1279, 1280 (9th Cir. 2001).
“Acts constituting torture are varied, and include beatings
and killings.” Bromfield v. Mukasey, 543 F.3d 1071, 1079
(9th Cir. 2008) (citing Al-Saher v. INS, 268 F.3d 1143, 1147
(9th Cir. 2001)).
Here, Alvarado and Gomez participated in beating De
Leon in a manner that the IJ characterized as “vicious” and
a PNC officer framed as “attempted murder.” During the
beating, the five attackers told De Leon that they were going
to kill him. At no point did Alvarado or Gomez try to stop
the other men from repeatedly stabbing De Leon with a knife
and a machete, and Gomez himself knocked De Leon
unconscious by hitting him in the head with either a gun or
DE LEON LOPEZ V. GARLAND 21
baton. De Leon needed sixteen stitches on his head as a
result of Gomez’s strike; he needed over thirty stitches in
total; he was out of work for three months; and he did not
physically recover from his various injuries for over one
year. De Leon also suffered ongoing psychological damage.
Precedent indicates that such a beating may be sufficiently
severe to qualify as torture. See, e.g., Xochihua-Jaimes v.
Barr, 962 F.3d 1175, 1188 (9th Cir. 2020); Bromfield,
543 F.3d at 1079; Muradin v. Gonzales, 494 F.3d 1208,
1211 (9th Cir. 2007); Al-Saher, 268 F.3d at 1146–48.
Neither the IJ nor the BIA directly addressed whether the
July 2011 incident was severe enough to qualify as torture.
The BIA stated that “even assuming that some of
[De Leon’s] attackers were actual police officers, the record
does not indicate [(a)] that they tortured the applicant and
[(b)] that the government of Guatemala acquiesced to such
torture.” In light of: (1) the absence of an express finding on
severity in the IJ’s opinion; (2) the lack of any explanation
in the BIA’s opinion as to why the July 2011 beating fell
short of the definition of torture in terms of its severity;
(3) the conjunctive structure of the BIA’s sentence; and
(4) the BIA’s legally erroneous view, discussed above, that
there was an inadequate showing of governmental
acquiescence, it is most likely that the BIA’s holding was
that, as the IJ held, the record did not establish acquiescence,
and so did not establish (a) and (b), the conjunction
necessary to demonstrate past torture.
At best, the BIA’s opinion is ambiguous as to whether it
concluded that the July 2011 incident qualified as torture. If
it did so conclude, the opinion contains no explanation for
the holding.
In light of the ambiguity in the BIA’s conclusion with
respect to the question whether De Leon was subjected to
22 DE LEON LOPEZ V. GARLAND
past torture and the absence of any explanation for a
conclusion on that question, if made, we remand that issue
for further consideration. See Tadevosyan v. Holder, 743
F.3d 1250, 1257–58 (9th Cir. 2014); Arredondo v. Holder,
623 F.3d 1317, 1320 (9th Cir. 2010).
5. If, on remand, the agency determines that De Leon
was subjected to past torture in July 2011, that conclusion
would not fully satisfy De Leon’s burden to show that it is
“more likely than not” that he would be tortured should he
return to Guatemala. 8 C.F.R. § 1208.16(c)(2). Although
“past torture is ordinarily the principal factor on which we
rely when an applicant who has previously been tortured
seeks relief under the Convention,” Nuru v. Gonzales,
404 F.3d 1207, 1218 (9th Cir. 2005), “changed
circumstances” can lessen the importance of that factor.
Avendano-Hernandez, 800 F.3d at 1080.
Here, circumstances have somewhat changed. Alvarado
and Gomez are no longer members of the PNC and may no
longer be in Guatemala. De Leon must therefore establish
either that he would more likely than not be tortured in the
future by Guatemalan officials or that the Guatemalan
government would more likely than not acquiesce in future
torture perpetrated against him by individuals who are not
public officials.
The IJ and BIA concluded that De Leon did not make
this showing. But “where there is any indication that [an IJ
or] the BIA did not consider all of the evidence before it . . .
the decision cannot stand.” Cole v. Holder, 659 F.3d 762,
771–72 (9th Cir. 2011). The agency’s analysis of the
probability that De Leon will be subjected to future torture
disregarded several critical factors and so must be redone.
DE LEON LOPEZ V. GARLAND 23
First, the BIA concluded that the second incident in
October 2011 fell short of the definition of past torture
because the beating and De Leon’s injuries were
insufficiently severe. 8 C.F.R. § 1208.18(a)(1). De Leon
does not contest the validity of that determination. But the
October 2011 incident nonetheless qualifies as “relevant
evidence” that the agency must consider in evaluating
De Leon’s Torture Convention claim. Maldonado, 786 F.3d
at 1164.
The record indicates that the police officers who beat De
Leon in October 2011 told him that “if [he] went to the
human rights organization” then he “was going to have
problems with them.” Later, after De Leon made a human
rights report, armed officers went to the homes of his
relatives and to places he frequented looking for him, and the
officers indicated that they would continue to “come back
and look for [him] later.”5 The October incident, threat, and
follow-up make future torture by PNC officers more
probable and should not have been ignored by the agency.
Second, “[t]he failure of the IJ and BIA to consider
evidence of country conditions” in denying relief under the
Torture Convention “constitutes reversible error.” Aguilar-
Ramos v. Holder, 594 F.3d 701, 705 (9th Cir. 2010). The
BIA’s decision in this case does not reference the country
conditions report at all. It does generally adopt the IJ’s
reasoning.
5
The IJ and BIA did not dispute that the assailants from the
October 2011 incident were police officers. The IJ did suggest that the
armed officers who subsequently went to the homes of De Leon’s
relatives and to places he previously frequented may have had a lawful
purpose, such as to discuss the ongoing investigations against his
attackers. That the armed officers approached the home of De Leon’s
mother at 1:00 a.m. could belie that suggestion.
24 DE LEON LOPEZ V. GARLAND
The IJ did not properly take into consideration the
country conditions evidence De Leon proffered. That
evidence demonstrates that many police officers in
Guatemala are corrupt and involved in extortion, and that the
officers who are not corrupt are unlikely to intervene to
protect victims from harm. The IJ referred to the country
conditions report only briefly in her decision. She stated that
although the report “establish[es] there are some problems
in Guatemala,” De Leon had not set forth a claim under the
Convention Against Torture because “the authorities went
out of their way to help him.”
The “problems” superficially referenced by the IJ but
recounted in detail in the country conditions report are
directly relevant here. They include “widespread
institutional corruption, particularly in the police” force; this
corruption was characterized as one of the “[p]rincipal
human rights abuses” in Guatemala by the country
conditions report. The country conditions report
demonstrates that the Guatemalan government lacks
effective mechanisms to investigate and prevent abuse and
corruption within the PNC, and that non-corrupt PNC
officers are reluctant to punish the wrongdoings of their
corrupt peers. The dismissive manner in which the IJ
referred to and treated the country conditions report—
including characterizing it as “29 pages of general
information of which we are all familiar,” and rendering her
oral decision only moments after accepting the report into
the record—suggests that the IJ did not read the report in any
detail or genuinely consider the parts directly pertinent to De
Leon’s likely situation in Guatemala upon removal.
This conclusion is bolstered by Parada v. Sessions, 902
F.3d 901 (9th Cir. 2018). There, the IJ summarized the
relevant country conditions in his decision, but there was a
“significant and material disconnect between the IJ’s quoted
DE LEON LOPEZ V. GARLAND 25
observations and his conclusions regarding [the petitioner’s
Torture Convention] claim.” Id. at 915. That disconnect
“indicate[d] that the IJ did not properly consider all of the
relevant evidence before him.” Id. Here, the IJ did not quote
or summarize the country conditions report in her decision.
The engagement with the country conditions report in this
case—which was virtually non-existent on the part of the IJ,
and completely non-existent on the part of the BIA—is
inadequate.
Third, the BIA suggested that De Leon could “live in
Guatemala City or another part of Guatemala without any
harm.” To find that an applicant can safely relocate to
another part of the country, an IJ or the BIA needs to cite
affirmative evidence supporting that determination.
Xochihua-Jaimes, 962 F.3d at 1186–87 (citations omitted).
The BIA’s finding is not supported by such evidence.
The Government argues that two pieces of evidence
support the BIA’s determination that De Leon could safely
relocate: (1) that De Leon lived in Guatemala City for
approximately one month without being attacked, and
(2) that De Leon’s attackers from the July 2011 incident
have not returned to Guatemala to his knowledge. The
parties do not cite, and we have not found, any cases holding
that a single month’s stay in another region of the proposed
country of removal qualifies, by itself, as sufficient
affirmative evidence that the applicant could safely relocate
to that region. That gap is not surprising. A one-month
sojourn in another area of the proposed country of removal
does not constitute substantial evidence that an applicant will
not be found by his adversaries if he remains there
permanently.
Additionally, both during the month De Leon lived in
Guatemala City and later, armed police officers were
26 DE LEON LOPEZ V. GARLAND
actively searching for him at his relatives’ homes and at
locations he had previously frequented. The officers told De
Leon’s relatives that they would continue to search for him.
De Leon’s family members did not disclose his location in
Guatemala City to the armed officers. But police officers
seeking to harm De Leon could uncover his location through
other means, such as by asking other individuals living in
De Leon’s small town or by contacting officials in other
parts of the country.
Finally, although the five attackers from the July 2011
incident have not to De Leon’s knowledge returned to
Guatemala from Mexico (the border of which is close to De
Leon’s home town), he testified that news of his return
would travel through his small town quickly, and it would be
“very easy” for potential attackers, including the aggrieved
police officers involved in the October 2011 incident, to
learn he had returned and track him down. The BIA’s
assessment of whether De Leon could safely relocate should
have taken into account these factors.
Fourth, Torture Convention “claims must be considered
in terms of the aggregate risk of torture from all sources,”
including from sources that did not have a hand in past
torture inflicted upon the applicant. Xochihua-Jaimes,
962 F.3d at 1187 (quoting Quijada-Aguilar v. Lynch, 799
F.3d 1303, 1308 (9th Cir. 2015)). The BIA must assess
whether, after “aggregating the risks posed” by each
potential source of torture, the applicant has demonstrated “a
probability greater than 50 percent that he will be tortured.”
Velasquez-Samayoa v. Garland, No. 21-70093, 2022 WL
4453004, at *6 (9th Cir. Sept. 23, 2022). Here, the IJ and
BIA exclusively considered the risk of harm to De Leon
stemming from the particular individuals involved in the
July 2011 incident. That approach ignores the risk that
De Leon would be tortured in the future by other police
DE LEON LOPEZ V. GARLAND 27
officers, including those connected to the October 2011
incident or those who have similar motivations to the
officers involved in the July and October incidents. Cf. Kaur
v. Wilkinson, 986 F.3d 1216, 1230–31 (9th Cir. 2021).
The record indicates that a common theme underlies De
Leon’s two violent encounters with the Guatemalan police.
In both instances, De Leon refused to submit to corrupt
police practices involving the theft of his money or goods.
When asked why he did not simply submit to the corrupt
practices to avoid being harmed, De Leon explained “it
didn’t seem fair to [him]” to submit to “the kind of people
that only want to harm others.” He also explained that he
fundamentally “opposed” the corrupt practices “because that
is no way to—they don’t have any right to take the
merchandise from us or even ask for money.” The country
conditions report indicates that Guatemalan police
frequently extort citizens of the country. That evidence is
pertinent to evaluating whether, if De Leon returned to
Guatemala, his defiance against corrupt police practices
could lead him to face new incidents of violence by or with
the acquiescence of police officers unconnected to the
July 2011 incident.
Additionally, the record demonstrates that De Leon was
twice attacked by police officers on his way back to his small
town. Both attacks were premised in part on the assumption
that De Leon would be carrying money or other objects of
wealth upon his return. The possibility that De Leon may be
attacked in a similar fashion in the future if he were again
removed to Guatemala from the United States should have
been considered by the BIA in assessing the probability of
future torture.
In sum, the IJ and BIA disregarded myriad contextual
considerations pertinent to the likelihood of future torture.
28 DE LEON LOPEZ V. GARLAND
To summarize those considerations: De Leon has already
experienced two assaults at the hands of the police, not one;
police officers warned him not to report them to a human
rights organization and, after he made a report, searched for
him at his family members’ homes and at places he
frequented, suggesting that they intended to harm him again;
and, given his principled resistance to police corruption,
De Leon may anger additional corrupt officers in the future.
Combined with the country conditions report’s material
about police corruption, the record indicates that the
violence De Leon experienced may not have been “isolated”
or one-off. The BIA should have taken the broader picture
into consideration but did not.
* * *
When an IJ or BIA decision “cannot be sustained upon
its reasoning,” the proper course of action on review is to
remand for the IJ or BIA to reconsider its decision. Andia v.
Ashcroft, 359 F.3d 1181, 1184 (9th Cir. 2004); see also Cole,
659 F.3d at 774. Here, the record compels the conclusion
that two of De Leon’s attackers from the July 2011 incident
were police officers, so he need not otherwise show
acquiescence on the part of the Guatemalan government with
respect to that incident. The determination whether De Leon
was subjected to past torture therefore must be reconsidered.
Separately, the IJ and BIA did not properly consider
information pertinent to determining the probability of
future torture when denying De Leon’s request for relief
under the Torture Convention. We therefore grant the
petition for review and remand the matter to the BIA for the
agency to reconsider De Leon’s application for relief under
the Torture Convention.
The petition for review is GRANTED. We REMAND
for further proceedings consistent with this opinion.
DE LEON LOPEZ V. GARLAND 29
COLLINS, Circuit Judge, dissenting:
In rejecting Petitioner Risvin Valdemar De Leon
Lopez’s claim for relief under the Convention Against
Torture, the Immigration Judge (“IJ”) relied critically on an
explicit factual finding that none of the five men who robbed
and attacked De Leon in Guatemala in July 2011 were police
officers. The Board of Immigration Appeals (“BIA”) upheld
that finding and the resulting denial of relief, but the majority
nonetheless reverses that factual finding and remands the
case back to the agency. The majority’s opinion is a
textbook example of how judicial review of immigration
decisions ought not to be conducted. Indeed, the majority’s
decision resurrects many of the same flawed legal standards
that we previously applied in immigration cases and that
were expressly rejected by the Supreme Court in its
unanimous decision in Garland v. Ming Dai, 141 S. Ct. 1669
(2021). I respectfully dissent.
I
In addressing De Leon’s claim that, in July 2011, he was
attacked by five men, including two police officers, the IJ
reviewed the conflicting evidence and made an express
factual finding that these two “individuals wore police
uniforms or uniforms that made them look like police
uniforms but they were not in fact actually police employees
or any lawful authority.” Exercising review for clear error,
the BIA expressly upheld this finding that the assailants were
not “actual police officers.” As a result, under the INA, this
finding of fact is “conclusive unless any reasonable
adjudicator would be compelled to conclude to the
contrary.” 8 U.S.C. § 1252(b)(4)(B). The majority
nevertheless reverses this factual finding, holding that “the
30 DE LEON LOPEZ V. GARLAND
record compels the conclusion that two of De Leon’s
attackers from the July 2011 incident were police officers.”
See Opin. at 28. In doing so, the majority seriously errs.
A
Before turning to the specifics of how the majority
improperly reweighs the particular evidence in this case, I
think it is important to note, at the outset, three respects in
which the majority flouts the applicable principles of law
that the Supreme Court set forth when it reversed this court’s
decision in Ming Dai.
First, the Ming Dai Court told us that we were wrong to
treat credibility determinations as an all-or-nothing matter,
because an IJ, “like any reasonable factfinder, is free to
credit part of a witness’ testimony without necessarily
accepting it all.” 141 S. Ct. at 1677 (simplified). The
majority disregards that principle by taking as credible every
detail in De Leon’s testimony, even though the IJ found only
that De Leon “testified in a generally credible manner” and
an “[e]ssentially” credible manner (emphasis added). As the
IJ made clear, she declined to accept all of De Leon’s
testimony, because some portions were based on
“speculation,” and other parts were “contradict[ed]” by his
own documentary evidence and even his earlier testimony.
The majority contends that these comments by the IJ
addressed only the “persuasiveness” of De Leon’s testimony
and not its “credibility,” and on that basis the majority
proceeds to treat De Leon’s testimony as having been found
to be credible in all relevant respects. See Opin. at 17–18.
The majority’s premise is incorrect. In particular, given that
the IJ’s decision relies heavily on contradictions in and
between De Leon’s testimony and past statements, that
decision clearly reflects doubts as to De Leon’s credibility in
DE LEON LOPEZ V. GARLAND 31
claiming that his attackers were police officers. See infra
note 1. By instead deeming all of De Leon’s testimony to be
credible, the majority effectively revives the very
“presumption of credibility” that Ming Dai told us does not
apply on a petition for review in federal court. 141 S. Ct. at
1678. As the Court explained, we may not presume that any
portion of an alien’s testimony that was not specifically
rejected by the IJ was credited. On the contrary, even when
the record is unclear as to whether testimony was explicitly
disbelieved, the “only question for judges reviewing the
BIA’s factual determinations is whether any reasonable
adjudicator could have found as the agency did.” Id. By
crediting De Leon’s testimony wholesale, and then
deploying it to reject the agency’s findings, the majority
“flips” this deferential “standard on its head” and thereby
“gives conclusive weight to any piece of testimony that cuts
against the agency’s finding.” Id.
Second, even if the majority were right in thinking that
every detail of De Leon’s testimony should be deemed
credible, the majority further errs by effectively reviving our
further “deemed true” rule, which Ming Dai also squarely
rejected. See 141 S. Ct. at 1676–77. As I will show in
discussing the majority’s analysis of the specific evidence in
this case, the majority wrongly takes every detail of De
Leon’s hearing testimony as the gospel truth, and it then
aggressively discounts contrary evidence in the record by
drawing debatable inferences in De Leon’s favor and
contrary to the IJ’s factual findings. But as the Supreme
Court admonished us, “even if the BIA [or the IJ] treats an
alien’s evidence as credible, the agency need not find his
evidence persuasive or sufficient to meet the burden of
proof.” Id. at 1680. Here, the IJ clearly found that, even
assuming that De Leon was credible in contending that two
of his attackers wore uniforms, that testimony was not
sufficiently persuasive to establish that they were in fact
32 DE LEON LOPEZ V. GARLAND
police officers. Under Ming Dai, it was entirely proper for
the IJ to conclude that “testimony on [that] key fact was
outweighed by other evidence and thus unpersuasive or
insufficient to prove” the alien’s case. Id. at 1681.
Third, the majority disregards Ming Dai’s clear
instruction that we may not “overturn” a factual finding if
“the record contains contrary evidence of a kind and quality
that a reasonable factfinder could find sufficient.” 141 S. Ct.
at 1677 (simplified). As I will explain, the record clearly
contains such evidence here. But the majority instead
cherry-picks from the record whatever evidence it thinks
supports its favored conclusion, while ignoring the very
substantial evidence in the record that is contrary to that
conclusion.
In defending its disregard of such contrary evidence, the
majority asserts that, in applying the substantial evidence
standard, we may consider additional items of record
evidence that were not specifically mentioned by the IJ or
the BIA only if those items undermine the agency’s
conclusion. Compare Opin. at 13–17 (chastising the agency
on the grounds that it overlooked items of evidence in the
“record as a whole” that the majority thinks support a
contrary view) with Opin. at 17–20 (arguing that we must
close our eyes to record evidence supporting the agency’s
conclusion if that evidence was not specifically cited by the
agency). According to the majority, this one-way ratchet
follows from the principle, derived from SEC v. Chenery
Corp., 332 U.S. 194, 196 (1947), that judicial review of an
agency decision is limited to “only the grounds relied upon
by that agency.” Andia v. Ashcroft, 359 F.3d 1181, 1184
(9th Cir. 2004). The majority’s reasoning is flawed. Here,
the agency’s grounds for decision were clearly identified—
namely, that De Leon was not attacked by police officers and
that his claims to the contrary were based on speculation and
DE LEON LOPEZ V. GARLAND 33
on testimony that was internally inconsistent and
contradicted by other evidence in the record. Under the
express terms of the INA, we may not set aside that finding
and replace it with a contrary factual finding—as the
majority has done here—“unless any reasonable adjudicator
would be compelled to conclude to the contrary,” 8 U.S.C.
§ 1252(b)(4)(B). Ming Dai states that, in applying this
“highly deferential standard” to an agency’s explicit
rejection of an alien’s factual contention, our task is simply
to determine whether “the record contains contrary evidence
of a kind and quality that a reasonable factfinder could find
sufficient,” 141 S. Ct. at 1677 (simplified). Moreover, Ming
Dai specifically rejects any “magic words” approach to
reviewing the sufficiency of the evidence underlying the
agency’s factual determinations. See id. at 1679.
Accordingly, the majority’s insistence that, in applying the
substantial evidence standard to the explicitly stated grounds
of the agency’s decision, we may consider only the particular
snippets of record evidence specifically and expressly cited
by the agency is a distortion of the Chenery rule, contravenes
Ming Dai, and ignores the applicable statutory language.
B
The flaws in the majority’s legal standards are confirmed
by the numerous mistakes the majority makes in assessing
whether substantial evidence in the record supports the
specific factual finding that is at issue in this case—namely,
whether two of De Leon’s attackers in the July 2011 incident
were police officers. Even while crediting De Leon’s
assertion that two of his attackers wore uniforms, the IJ gave
four reasons for nonetheless concluding that the men were
not police officers.1 Collectively, these reasons provide
1
The majority claims that the IJ made a specific finding that De Leon
was credible when De Leon claimed that he “believed that two of these
34 DE LEON LOPEZ V. GARLAND
substantial evidence to support the IJ’s factual finding, and
the majority errs in concluding otherwise.
First, the IJ concluded that, in discussing his knowledge
about the occupations of the two men, De Leon at one point
changed his testimony, first stating that one of his attackers
“used to work for the police” but then claiming that he “was
working for the police at the time” of the attack (emphasis
added). The majority attempts to explain away the
inconsistency, arguing that De Leon’s use of the past tense
in the first phrase was attributable to the fact that he “was
testifying about an incident that had occurred about seven
years earlier.” See Opin. at 14. If I were the trier of fact, I
might agree with the majority’s attempt to reconcile these
seemingly conflicting aspects of De Leon’s testimony. But
the IJ clearly read both statements as referring to the
attackers’ status at the time of the attack and as therefore
internally inconsistent. The majority’s adoption of a
debatable contrary inference is flatly contrary to the “‘highly
men were police officers.” See Opin. at 18 (quoting the IJ’s decision).
This erroneous contention rests on an improperly truncated quotation
from the IJ’s decision. In the cited sentence, the IJ observed that,
“According to his testimony respondent [De Leon] believed that two of
these men were police officers and that the other three men were
neighbors and people that respondent knew” (emphasis added). Far from
endorsing the credibility of De Leon’s belief, the quoted sentence merely
recounts that De Leon claimed such a belief. Moreover, the majority’s
theory that the IJ supposedly found that De Leon actually believed the
men to be officers is difficult to square with the fact that the IJ rejected
De Leon’s testimony that the men were officers as being contrary to his
own additional statements, both in the other portions of his testimony
and in his earlier statement to investigators. A finding that, with respect
to a particular point, a witness has given internally inconsistent testimony
that also contradicts the witness’s prior statements is not reasonably
construed as an endorsement of the credibility of the testimony as to that
particular point.
DE LEON LOPEZ V. GARLAND 35
deferential standard” of review. Ming Dai, 141 S. Ct. at
1677; see also Nasrallah v. Barr, 140 S. Ct. 1683, 1692
(2020). How to weigh potentially conflicting items of
testimony is a discretionary judgment to be made by the IJ,
subject to the BIA’s clear error review. We lack the
authority to reweigh the evidence ourselves and to draw
competing inferences. Indeed, even the BIA—which
operates under a less strict standard of clear-error review—
is forbidden to do what the majority has done here, which is
to “rely on its own interpretation of the facts.” Guerra v.
Barr, 974 F.3d 909, 912 (9th Cir. 2020).
Second, the IJ also reasoned that De Leon’s claim that
the men were police officers was contradicted by the fact
that, as soon as De Leon reported the attack, the men fled the
country, “indicating that they feared the police” (emphasis
added). The majority disputes the IJ’s inference, arguing
that the men’s flight does not necessarily mean that they
were not police officers at the time of the attack. As the
majority contends, “[c]orrupt police officers can fear that
they will be caught and prosecuted.” See Opin. at 15. Once
again, the majority is choosing between debatable
inferences, thereby flagrantly disregarding the standard of
review. See Guerra, 974 F.3d at 913 (noting that, “[w]hen
there are two permissible views of the evidence, the IJ’s
choice between them” cannot be side aside, even by the
BIA).
Third, the IJ noted that the written copy of the police
report concerning the incident did not mention that the men
were police officers; instead they were identified as
members of the 18th street gang. It was entirely reasonable
for the IJ to conclude that this report undermined De Leon’s
contention that two of the men were police officers. Yet
again, the majority improperly substitutes its own
tendentious reweighing of the evidence. According to the
36 DE LEON LOPEZ V. GARLAND
majority, the report was only a summary of statements made
by persons other than De Leon, and therefore no significance
can be attached to its failure to mention that two of the men
were police officers. See Opin. at 13. As an initial matter,
the majority overlooks the fact that the report—which is a
summary of an interview with De Leon—recounts De
Leon’s statement that various persons, who were at the
treatment center he went to after the attack, described the
attackers as members of the “18 gang.” In addition, the
majority overlooks De Leon’s subsequent statement to the
public prosecutor’s office in which he stated that “these
individuals that wounded me are members of the eighteen
gang.” These various statements, whether by De Leon
himself or by De Leon relaying other persons’ claims,
remain competing evidence that the IJ could consider in
reaching a conclusion contrary to the majority’s.
The majority also holds that the agency should not have
given weight to any perceived inconsistency on this score
because, in any event, the men who attacked De Leon could
have been both police officers and gang members. See Opin.
at 13. De Leon made similar attempts to reconcile his
testimony with the police report, but the IJ expressly rejected
them, finding that De Leon “offered no cogent explanation
of why the police would take a report, list these individual’s
names and then pretend they weren’t police if in fact they
were police officers.” In rejecting the IJ’s conclusion, the
majority simply usurps the IJ’s authority, in direct
contravention of the INA’s highly deferential standard of
review.
Fourth, the IJ concluded that, because the authorities
would know more about their own officers, their subsequent
inability to locate the men was inconsistent with the
conclusion that they were police officers. I confess that, if I
were the trier of fact, I would not have drawn this inference,
DE LEON LOPEZ V. GARLAND 37
because it is presumably difficult to locate anyone who has
fled the country, regardless of whether they are officers. But
as I have already repeatedly observed, the decision as to
which inferences to draw from the evidence belongs to the
IJ and not to this court. The majority again disregards these
constraints by instead adopting the competing inference that
the men were not located because “officers in Guatemala
commonly neglect to investigate or punish their peers.” See
Opin. at 15.
C
In addition to improperly reweighing and rejecting each
of the specific inferences drawn by the IJ in support of her
factual finding that the men were not officers, the majority
also selectively rummages through the record in search of
additional evidence to support its preferred conclusion. This
cherry-picking overlooks the significant amount of
additional contradictory evidence that seriously undermines
De Leon’s claims and that show that this is most definitely
not a case in which the record compels acceptance of his
claims that two of the attackers were police officers.2
2
As noted earlier, the majority is wrong in contending that, in assessing
whether the record evidence supports the IJ’s finding, we are limited by
the Chenery rule to considering only those aspects of the record that were
affirmatively cited by the IJ. In explaining how the Chenery rule applies
within the context of the INA’s review provisions, Ming Dai explained
that (1) in assessing whether particular testimony was rejected as not
credible, it suffices “if the agency’s path may reasonably be discerned”;
and (2) such a rejection must be upheld unless, reviewing the record as
a whole, “a reasonable adjudicator would have been compelled to reach
a different conclusion.” 141 S. Ct. at 1679 (citation omitted); cf.
Louisiana-Pac. Corp. v. NLRB, 52 F.3d 255, 258–59 (9th Cir. 1995)
(distinguishing between the “basis” for an agency order, which is limited
by the Chenery rule, and an agency “finding,” which is reviewed for
“substantial evidence”). Here, the agency did not credit De Leon’s
38 DE LEON LOPEZ V. GARLAND
For example, the majority chastises the IJ for
overlooking De Leon’s testimony that he had known the
putative officers “for about twenty years” and that it was
common knowledge in the village that they were police
officers. See Opin. at 12. There is no indication, however,
that the IJ credited this aspect of De Leon’s testimony, which
is not mentioned in the evaluative section of the IJ’s ruling.3
Nor was the IJ compelled to do so, and nor are we. Indeed,
the record contains ample “contrary evidence of a kind and
quality that a reasonable factfinder could find sufficient” to
justify declining to credit or mention this aspect of De
Leon’s testimony. Ming Dai, 141 S. Ct. at 1677 (simplified).
In particular, De Leon’s story about having known these two
men to be police officers is very hard to square with the
earlier contradictory statements he made during his removal
proceedings.4
testimony that the men were police officers, and we may not set that
conclusion aside “so long as the record contains contrary evidence of a
kind and quality that a reasonable factfinder could find sufficient.” Ming
Dai, 141 S. Ct. at 1677 (emphasis added) (citations and internal
quotation marks omitted). Moreover, as noted earlier, the majority’s
distorted view of Chenery leads it to wrongly adopt an asymmetrical rule
that uncited evidence may be used to attack the agency’s factual
findings, but not to support them. See supra at 32–33.
3
The majority’s erroneous contrary contention is once again based on its
patent misreading of the IJ’s decision. As before, see supra note 1, the
majority misreads the IJ’s mere summary of what De Leon claimed in
his testimony as reflecting an endorsement of the credibility of every
claim mentioned. In each of the relevant sentences describing De Leon’s
testimony about how long he knew the alleged officers, the IJ used
phrasing such as “[a]ccording to his testimony”; “[r]espondent testified”;
“[a]s respondent described him”; and “[r]espondent said”.
4
The majority claims it is unfair to consider these additional aspects of
the record because, under our precedent, the agency supposedly could
not have expressly relied on these particular contradictions without first
specifically raising each one of them with De Leon and allowing him to
DE LEON LOPEZ V. GARLAND 39
At the January 29, 2018 hearing before the IJ, De Leon
named two men, Israel Augustin Alvarado and Oljoel
Pascual Gomez, as the uniformed police officers who
participated in the July 2011 attack. The majority simply
assumes this testimony to be true, even though the IJ made
no finding as to the identities of the two men. But in his
declaration in support of his December 2015 application for
relief, De Leon claimed that the two police officers who
attacked him were “Joel Lopez” and “Marcelino, whom I
don’t know his last name.” He further stated that the other
attackers—i.e., the ones who were not police officers—were
“Israel Agustin Alvarado and Melvin Baten.” Similarly, in
his June 24, 2015 reasonable fear interview, De Leon named
the two police officers as “Joel Lopez” and a man named
“Marcelino,” whose last name he did not know. In that
interview, he was also asked “[w]hat were the names of the
individuals who were not police officers,” and he replied,
“Melvin Baten, Israel Augustine [sic] Alvarado.” These
prior statements that Alvarado was not one of the officers
and that De Leon did not know the last name of the other
try to explain them. See Opin. at 18–19. Even assuming arguendo that
our continued adherence to that “judge-made procedural requirement[]”
is consistent with Ming Dai, but see 141 S. Ct. at 1677 (reminding us that
judge-made rules “that Congress has not prescribed and the Constitution
does not compel” have “no proper place in a reviewing court’s
analysis”), it is inapposite here. I have raised these aspects of the record
only in response to the majority’s selective rummaging of the record for
additional evidence, not relied upon by the agency, that undermines the
agency’s decision. The majority cannot have it both ways: we cannot
simultaneously fault an agency for failing to rely on a particular aspect
of the record without acknowledging the additional baggage with which
that aspect is freighted. And even if the majority’s procedural rule were
applicable here, it would at most warrant a reconsideration of the factual
determination by the agency and not, as the majority would have it, a
judge-made factual finding that is directly contrary to the agency’s. See,
e.g., Soto-Olarte v. Holder, 555 F.3d 1089, 1096 (9th Cr. 2009)
(remanding on an open record).
40 DE LEON LOPEZ V. GARLAND
officer thus directly contradict De Leon’s hearing testimony
that Alvarado was one of the officers and that De Leon had
known both men for 20 years.
Moreover, De Leon’s earlier statements are also
inconsistent as to the number and identities of the non-
police-officer attackers. In his July 18, 2011 statement to the
Guatemalan prosecutor’s office, De Leon made no mention
of any of the attackers being police officers, and he identified
his attackers as “Joel Pascual Lopez Gomez,” “Elder Ramos,
Agustin Alvarado, and Melvin Baten.” In his declaration
and credible fear interview, he also named four men, but he
substituted the mysterious “Marcelino” for “Elder Ramos.”
At the hearing, however, he named five men: Alvarado,
Gomez, and Baten remained on the list, but Marcelino was
dropped, Elder Ramos was added back, and a new fifth
person was added—Minor Rojas. As with Alvarado and
Gomez, De Leon told the IJ he had known Rojas and Ramos
for many years. The addition of Minor Rojas as a fifth
attacker was notable, because De Leon’s 2011 statement to
Guatemalan prosecutors insisted that “Mynor Rojas” had
absolutely nothing to do with the attack.5
With this mess of a record, we are certainly not
compelled to accept De Leon’s assertion that he had known
the men for 20 years and therefore knew they were police
officers, and the IJ cannot be faulted for ignoring that claim.
5
De Leon’s statement to prosecutors also stated that his companions,
Noel Mendez and Aroldo Escobar, were attacked, which contradicted his
hearing testimony that “[t]hey weren’t hit” and that “[t]hey just left the
place.”
DE LEON LOPEZ V. GARLAND 41
II
Beyond its unwarranted conclusion that the attackers in
the July 2011 incident included police officers, the majority
does not otherwise identify any basis for setting aside the
agency’s conclusion that the Guatemalan government had
not acquiesced in any past alleged “torture” of De Leon. Nor
does the majority contend that, in the absence of past torture,
De Leon presented sufficient evidence to establish that
future torture was likely if De Leon is removed to
Guatemala.6 Consequently, because the IJ’s factual finding
that no police officers participated in the July 2011 attack
should be upheld, De Leon’s claim for relief under the
Torture Convention necessarily fails, and the petition should
be denied.
* * *
Because the majority revives and applies flawed legal
standards that were unanimously rejected by the Supreme
Court in Ming Dai, I respectfully dissent.
6
The majority instead contends that, if on remand the agency concludes
that De Leon’s past treatment amounted to torture, the agency must then
redo its analysis of the likelihood of future torture. The agency’s prior
discussion of that issue was flawed, according to the majority, because
the agency failed to adequately consider several additional items of
evidence that, together with a showing of past torture, may suffice to
warrant relief here. This discussion also further reflects the majority’s
flawed aggressive approach to reading the record in this case.