Wilfredo Reyes v. Loretta E. Lynch ( 2016 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
WILFREDO GARAY REYES, No. 14-70686
Petitioner,
Agency No.
v. A094-330-535
LORETTA E. LYNCH, Attorney
General, OPINION
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted April 6, 2016
Seattle, Washington
Filed November 30, 2016
Before: Michael Daly Hawkins, Johnnie B. Rawlinson,
and Consuelo M. Callahan, Circuit Judges.
Opinion by Judge Callahan
2 REYES V. LYNCH
SUMMARY*
Immigration
Granting in part and denying in part a petition for review
of the Board of Immigration Appeals’ decision affirming the
denial of withholding of removal and protection under the
Convention Against Torture, the panel afforded Chevron
deference to the Board’s articulation in Matter of W–G–R–,
26 I. & N. Dec. 208 (BIA 2014) and Matter of M–E–V–G–,
26 I. & N. Dec. 227 (BIA 2014) of its “particularity” and
“social distinction” requirements for demonstrating
membership in a “particular social group” for purposes of
withholding relief, but held that the Board applied an
impermissible standard of review in assessing the request for
CAT relief.
The panel held that the Board’s construction of the
“particularity” requirement, which focuses on whether the
group is discrete or is, instead, amorphous, is reasonable and
consistent with its own precedent, which has long required
that a particular social group have clear boundaries and that
its characteristics have commonly accepted definitions.
The panel held that the Board’s articulation of its “social
distinction” requirement, which requires evidence showing
that society in general perceives, considers, or recognizes
persons sharing the particular characteristic to be a group, is
also reasonable.
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
REYES V. LYNCH 3
Applying that framework, the panel held that the Board
reasonably determined that petitioner’s proposed particular
social group of “former members of Mara 18 gang” lacks
particularity and social distinction, and that his proposed
social group of “deportees from the United States to El
Salvador” lacks particularity.
The panel remanded the CAT claim to allow the agency
to reconsider the application for CAT relief recognizing that
killings can constitute torture, and to undertake the requisite
fact finding in accordance with the agency’s regulations.
COUNSEL
Anne Dutton (argued) and Zachary A. Albun, Student
Attorneys; Benjamin Richard Casper, Supervising Attorney;
University of Minnesota Law School, Center for New
Americans, Federal Immigration Litigation Clinic,
Minneapolis, Minnesota; Alma David, Global Justice Law
Group, PLLC, Seattle, Washington; for Petitioner.
W. Manning Evans (argued) and Susan B. Green, Senior
Litigation Counsel; Benjamin C. Mizer, Principal Deputy
Assistant Attorney General; Office of Immigration Litigation,
Civil Division, United States Department of Justice,
Washington, D.C.; for Respondent.
L. Rachel Lerman, Barnes & Thornburg LLP, Los Angeles,
California; Chris Bayh, Barnes & Thornburg LLP,
Indianapolis, Indiana; for Amicus Curiae Harvard
Immigration and Refugee Clinical Program.
4 REYES V. LYNCH
Fatma E. Marouf, Associate Professor of Law, Las Vegas,
Nevada, as and for Amicus Curiae Immigration Clinic,
University of Nevada, Las Vegas, William S. Boyd School of
Law.
Brook Dooley and Sophie Hood, Keker & Van Nest LLP, San
Francisco, California, for Amici Curiae Lawyers’ Committee
for Civil Rights of the San Francisco Bay Area, Center for
Gender & Refugee Studies, and American Immigration
Lawyers Association.
OPINION
CALLAHAN, Circuit Judge:
Wilfredo Garay Reyes, a native and citizen of El
Salvador, petitions for review of a precedential Board of
Immigration Appeals (“BIA”) opinion in Matter of W–G–R–,
26 I. & N. Dec. 208 (BIA 2014), wherein the BIA dismissed
Garay’s appeal from an Immigration Judge’s (“IJ”) denial of
Garay’s applications for withholding of removal and relief
from removal under Article 3 of the Convention Against
Torture (“CAT relief”).1 Garay claims he is entitled to
withholding of removal because, if removed to El Salvador,
he will more likely than not face persecution on account of
his membership in a particular social group consisting of
“former members of the Mara 18 gang in El Salvador who
have renounced their gang membership” and, alternatively, a
1
Withholding of removal, 8 U.S.C. § 1231(b)(3), and protection
against removal under Article 3 of the Convention Against Torture
(“CAT”), 1465 U.N.T.S. 85, G.A. Res. 39/46, 39th Sess., U.N. GAOR
Supp. No. 51, at 197, U.N. Doc. A/39/51 (1984).
REYES V. LYNCH 5
group consisting of deportees from the United States to El
Salvador. Garay also maintains that he is entitled to CAT
relief because he faces a clear probability of torture from the
Mara 18 gang, Salvadoran death squads, and Salvadoran
government actors.
We have jurisdiction under 8 U.S.C. § 1252. We deny
Garay’s petition in connection with his claims for
withholding of removal. We conclude that the BIA’s
articulation of its “particularity” and “social distinction”
requirements for demonstrating membership in a “particular
social group” are entitled to Chevron deference. See
Chevron, U.S.A., Inc. v. Natural Resources Defense Council,
Inc., 467 U.S. 837, 844 (1984). We also conclude that the
BIA reasonably determined that Garay’s proposed particular
social groups of “former members of Mara 18” and
“deportees from the United States to El Salvador” are not
cognizable. However, because the IJ committed legal error
and the BIA employed an impermissible standard of review
in assessing Garay’s request for CAT relief, we grant Garay’s
petition with respect to the denial of his CAT claim.
I
A
In 2000, at the age of seventeen, Garay joined the Mara
18 gang in El Salvador. Upon joining Mara 18, Garay
participated in three to five robberies of wealthy ranchers.
Four months after Garay joined the gang, a new and more
violent leader, named Francisco, took over, and the gang
committed a string of armed bank robberies under his
leadership. Garay, armed with a gun, served as a driver for
two or three heists.
6 REYES V. LYNCH
Disenchanted with Francisco’s leadership style and not
wishing to be further involved in bank robberies, Garay
decided to leave the gang after being a member for less than
a year. Garay went into hiding, moving to another town.
Garay feared retribution or reprisals from Francisco, who had
previously announced that anyone trying to leave could be
punished with beatings or death.
After Garay fled, Francisco found Garay and shot him in
the leg. Some months later, Garay was confronted in a
billiard hall by machete-wielding assailants. He defended
himself with his own machete and a handgun. In late 2000,
Garay had his gang tattoo removed. Shortly thereafter, Garay
left El Salvador and made his way to the United States.
Garay entered the United States without inspection in
May 2001, at age eighteen. Now thirty-three years old, Garay
has a wife and two daughters. There is no indication that
Garay has been involved with gangs since entering the United
States.
B
On March 25, 2009, Immigration and Customs
Enforcement (“ICE”) issued a Notice to Appear, alleging that
Garay was unlawfully present and should be removed. Garay
conceded removability as charged. Garay, represented by
counsel, testified before the IJ on January 14, 2010.
Following the hearing, the IJ issued an oral decision, in
which he found Garay credible. The IJ pretermitted Garay’s
application for asylum because it had not been filed within a
year of his entry into the United States.
REYES V. LYNCH 7
Addressing Garay’s withholding claim, the IJ concluded
that, although Garay had been subjected to persecution in El
Salvador, he had not established that he was persecuted on
account of his membership in a particular social group
consisting of “former members of Mara 18 in El Salvador
who have renounced their gang membership.” The IJ noted
Garay’s four-to-six month active membership in Mara 18 and
reasoned that “[a]lthough the respondent has clearly indicated
that he wishes to renounce his gang membership, he cannot
disassociate himself from the volitional activities with which
he was involved as a member of the Mara 18 gang.” The IJ
also noted that Garay had submitted background materials
“which indicate that El Salvadoran gangs may have multiple
motivations and modus operandi in their particular groups.”
Denying Garay’s withholding claim, the IJ cited Arteaga
v. Mukasey, 511 F.3d 940 (9th Cir. 2007), and Matter of
E–A–G–, 24 I. & N. Dec. 591 (BIA 2008), as authority for the
proposition that membership in a violent criminal gang
cannot serve as the basis for a particular social group. The IJ
did not address whether Garay had demonstrated a nexus to
his purported membership in a social group. The IJ also did
not address Garay’s alternative proposed social group of
“deportees from the United States to El Salvador.”
Addressing Garay’s claim for CAT relief, the IJ noted that
Garay had testified that he feared arrest by the police and that
he could be subject to reprisals from his former fellow gang
members if removed to El Salvador. The IJ concluded that
Garay had not shown a likelihood that he would be arrested
because Garay had failed to demonstrate that the police have
been searching for him or that he had been charged with any
crimes in El Salvador. Regarding reprisals from the gang, the
IJ stated that Garay had “suggested in his written application
8 REYES V. LYNCH
for relief that if he is located by his former gang that he could
be subject to various brutal forms of treatment, including
having a tire placed on him being filled with gasoline.”
However, the IJ observed that Garay had not mentioned his
fear of that specific threat during his hearing, but had
“indicated that he believes that he would be killed by his
former gang members.” The IJ then stated that the materials
Garay had submitted “contain little if any information
concerning the treatment of former gang members such as
[himself] upon their return to El Salvador beyond being
killed.” The IJ concluded that Garay had “failed to
demonstrate by any standard that he would be subjected to
torture.”
The IJ ordered Garay removed to El Salvador. Garay
timely appealed to the BIA.
C
On February 7, 2014, the BIA panel dismissed Garay’s
appeal in a precedential decision, Matter of W–G–R–, 26 I. &
N. Dec. 208 (BIA 2014). In Matter of W–G–R–, and in a
companion precedential decision issued the same day, Matter
of M–E–V–G–, 26 I. & N. Dec. 227 (BIA 2014), the BIA
clarified the requirements that an applicant for asylum or
withholding of removal must satisfy in order to demonstrate
membership in a particular social group. The applicant must
“establish that the group is (1) composed of members who
share a common immutable characteristic, (2) defined with
particularity, and (3) socially distinct within the society in
question.” M–E–V–G–, 26 I. & N. Dec. at 237; see also
W–G–R–, 26 I. & N. Dec. at 212.
REYES V. LYNCH 9
In Matter of W–G–R–, the BIA reviewed its historical
efforts to construe the statutory term “particular social group”
as it applies in asylum and withholding cases. 26 I. & N.
Dec. at 209–10. The BIA explained that its articulation of the
“particularity” and “social visibility” requirements was not a
departure from or abrogation of its construction of a
“particular social group” in Matter of Acosta, 19 I. & N. Dec.
211 (BIA 1985).2 Id. at 211–12 (citing Henriquez-Rivas v.
Holder, 707 F.3d 1081, 1083 (9th Cir. 2013) (en banc)).
Instead, the BIA explained, the requirements “clarified the
definition of the term [‘particular social group’] to give it
more ‘concrete meaning through a process of case-by-case
adjudication.’” Id. at 212 (quoting INS v. Aguirre-Aguirre,
526 U.S. 415, 425 (1999)). In Matter of W–G–R–, the BIA
adhered to its previous holdings that “both particularity and
social visibility are critical elements in determining” the
cognizability of a particular social group, but re-named the
“social visibility” criterion as “social distinction.” Id.
The BIA observed that the term “particularity” is included
in the plain language of the statute. Id. at 213. The BIA
explained that “[t]he particularity requirement also derives
from the concept of immutability . . . clarifying the point, at
least implicit in earlier case law, that not every immutable
characteristic is sufficiently precise to define a particular
social group.” Id. The BIA explained that “the focus of the
particularity requirement is whether the group is discrete or
is, instead, amorphous.” Id. at 214.
The BIA clarified that the term “social distinction” was
intended to replace the term “social visibility.” “Social
2
The BIA did not discuss any changes to the immutability
requirement.
10 REYES V. LYNCH
distinction” more accurately describes the function of the
requirement and reflects that it is not intended to require
“literal,” “ocular,” or “on-sight” visibility. Id. at 211, 216.
Beyond that, the BIA clarified:
To have the “social distinction” necessary to
establish a particular social group, there must
be evidence showing that society in general
perceives, considers, or recognizes persons
sharing the particular characteristic to be a
group. Although the society in question need
not be able to easily identify who is a member
of the group, it must be commonly recognized
that the shared characteristic is one that
defines the group.
Id. at 217 (emphasis added).
The BIA explained that its decision not to focus the
“social distinction” inquiry solely on the persecutor’s
perspective was based, in part, on the fact that the inquiry into
whether a group is a “particular social group” is distinct from
the inquiry into the “nexus” requirement, which considers
whether a person is persecuted “on account of” membership
in a particular social group.3 Id. at 218.
3
An asylum or withholding applicant’s burden includes
(1) “demonstrating the existence of a cognizable particular social group,”
(2) “his membership in that particular social group,” and (3) “a risk of
persecution on account of his membership in the specified particular social
group.” Matter of W–G–R–, 26 I. & N. Dec. at 223 (citing Ayala v.
Holder, 640 F.3d 1095, 1097–98 (9th Cir. 2011)). The third element is
often referred to as the “nexus” requirement.
REYES V. LYNCH 11
Turning to Garay’s withholding claim, the BIA agreed
with the IJ that Garay’s proposed group of “former members
of the Mara 18 gang in El Salvador who have renounced their
gang membership” was not cognizable. Id. at 221. The BIA
reasoned that “[t]he group as defined lacks particularity
because it is too diffuse, as well as being too broad and
subjective.” Id. The BIA commented that, “[a]s described,
the group could include persons of any age, sex, or
background. It is not limited to those who have had a
meaningful involvement with the gang and would thus
consider themselves—and be considered by others—as
‘former gang members.’” Id.
Addressing the “social distinction” requirement, the BIA
stated that “[t]he record contains scant evidence that
Salvadoran society considers former gang members who have
renounced their gang membership as a distinct social group.”
Id. at 222. The BIA concluded that Garay had not provided
evidence demonstrating that his proposed particular social
group is “perceived, considered, or recognized in Salvadoran
society as a distinct group.” Id.
Having determined that Garay had not demonstrated
membership in a cognizable group, the BIA did not need to
address the “nexus” requirement. However, it held in the
alternative that Garay had “not demonstrated the required
nexus between the harm he fears and his status as a former
gang member.” Id. at 223. The BIA noted that while
persecution can be a factor in determining whether a group is
recognized as a distinct group within the relevant society,
“the persecutor’s views play a greater role in determining
whether persecution is inflicted on account of the victim’s
membership in a particular social group.” Id. The BIA then
determined that Garay had “not shown that any acts of
12 REYES V. LYNCH
retribution or punishment by gang members would be
motivated by his status as a former gang member, rather than
by the gang members’ desire to enforce their code of
conduct.”4 Id. at 224.
The BIA also rejected Garay’s proposed social group of
deportees from the United States to El Salvador. The BIA
found that the proposed group is “too broad and diverse a
group to satisfy the particularity requirement for a particular
social group under the Act.” Id. at 223 (citing Delgado-Ortiz
v. Holder, 600 F.3d 1148, 1151–52 (9th Cir. 2010) (per
curiam)). The BIA explained:
The respondent’s purported social group
could include men, women, and children of all
ages. Their removal from the United States
could be based on numerous different factors.
The length of time they were in the United
States, the recency of their removal, and
4
As we affirm the BIA’s determination that Garay failed to
demonstrate membership in a cognizable group, see infra, we do not reach
the BIA’s treatment of nexus. We note, however, that the BIA’s
differentiation between the status of being a former gang member and the
retributory acts of the gang has been criticized. See Oliva v. Lynch,
807 F.3d 53, 60 (4th Cir. 2015) (“[T]he BIA drew too fine a distinction
between Oliva’s status as a former member of MS-13 and the threats to
kill him for breaking the rules imposed on former members. While it is
true that Oliva’s decision to stop paying rent . . . was the immediate trigger
for the gang’s brutal assault on Oliva, it was Oliva’s status as a former
gang member that led MS-13 to demand rent in the first place and to
assault him for failure to pay it.”).
REYES V. LYNCH 13
societal views on how long a person is
considered a deportee after repatriation could
vary immensely.
Id.
Finally, the BIA reviewed the IJ’s denial of CAT relief
for clear error, and affirmed. Id. at 224–26. It reviewed
evidence in support of Garay’s claims that he feared torture
at the hands of rival gangs, the police, or clandestine death
squads, id. at 224–25, but concluded that “the Immigration
Judge’s predictive findings with respect to the respondent’s
torture claim [we]re not clearly erroneous . . . .” Id. at 225.
In a footnote to its CAT analysis, the BIA addressed
Garay’s challenge to the IJ’s statement that the background
materials Garay had submitted contained little information
about the treatment former gang members face “beyond being
killed.” Id. at 226 n.9. The BIA disagreed with Garay’s
characterization of the IJ’s decision “as holding that [Garay]
faces a danger of being killed but that death is not torture.”
Id. The BIA read the IJ’s statement not as an assertion that
killings are not torture but, rather, as “h[o]ld[ing] that the
evidence was not sufficient to show a clear probability that
the respondent would be tortured.” Id.
Garay timely petitioned for review of the final order of
removal entered by the BIA.
II
The primary issue in this case is whether we should
accord deference to the BIA’s “particularity” and “social
distinction” requirements for establishing the existence of a
14 REYES V. LYNCH
“particular social group,” as articulated in the precedential
opinion in Garay’s case, Matter of W–G–R–, 26 I. & N. Dec.
208.
The BIA’s construction of ambiguous statutory terms in
precedential decisions is entitled to deference under Chevron,
467 U.S. at 844. Henriquez–Rivas, 707 F.3d at 1087. We
must accept the BIA’s construction if it is reasonable, “even
if the agency’s reading differs from what the court believes is
the best statutory interpretation.” Nat’l Cable & Telecomms.
Ass’n v. Brand X Internet Servs., 545 U.S. 967, 980 (2005)
(“Brand X”). Consistency with the agency’s past practice or
precedent is not required for an agency interpretation to be
due Chevron deference; a new or varying agency
interpretation is permitted, if it is adequately explained. Id.
at 981.
Garay contends that the BIA’s “particularity” and “social
distinction” requirements are unreasonable, unreasoned, and
impermissibly prevent individuals from seeking asylum. We
disagree and conclude that BIA’s present articulation of the
“particularity” and “social distinction” requirements is
consistent with the statute, reflects the agency’s ongoing
efforts to construe the ambiguous statutory phrase “particular
social group,” is reasonable, and is entitled to Chevron
deference.
A
The phrase “membership in a particular social group” is
not defined in the statute and has spawned extensive debate
REYES V. LYNCH 15
and litigation.5 Matter of W–G–R– and Matter of M–E–V–G–
are the latest in a long line of BIA decisions refining the
contours of this ambiguous statutory provision.
The BIA first interpreted “persecution on account of
membership in a particular social group” in Matter of Acosta,
applying the doctrine of ejusdem generis to conclude that the
phrase means “persecution that is directed toward an
individual who is a member of a group of persons all of
whom share a common, immutable characteristic.” 19 I. &
N. Dec. at 233, overruled on other grounds in Matter of
Mogharrabi, 19 I. & N. Dec. 439 (BIA 1987).
In the ensuing years, Acosta’s immutable characteristic
test “led to confusion and a lack of consistency as
adjudicators struggled with various possible social groups,
some of which appeared to be created exclusively for asylum
purposes.” Matter of M–E–V–G–, 26 I. & N. Dec. at 231. In
response to calls for greater clarity, and in order to address
the evolving nature of the claims presented by asylum
applicants, “the BIA refined the Acosta standard by stating
that an asylum applicant must also demonstrate that his
proposed particular social group has ‘social visibility’ and
‘particularity.’” Henriquez-Rivas, 707 F.3d at 1084 (quoting
Matter of C–A–, 23 I. & N. Dec. 951, 957, 960 (BIA 2006));
Matter of M–E–V–G–, 26 I. & N. Dec. at 232. The “social
visibility” requirement considered whether the proposed
particular social group was “easily recognizable and
understood by others to constitute [a] social group[].” Matter
of C–A–, 23 I. & N. Dec. at 959–61.
5
See Valdiviezo-Galdamez v. Att’y Gen., 663 F.3d 582, 594 (3d Cir.
2011) (“The concept is even more elusive because there is no clear
evidence of legislative intent.”).
16 REYES V. LYNCH
In subsequent cases, the BIA further elaborated on the
meaning of the “particularity” and “social visibility”
requirements. In Matter of S–E–G–, 24 I. & N. Dec. 579, 584
(BIA 2008), the BIA stated “[t]he essence of the
‘particularity’ requirement, therefore, is whether the proposed
group can accurately be described in a manner sufficiently
distinct that the group would be recognized, in the society in
question, as a discrete class of persons.” In Matter of
E–A–G–, 24 I. & N. Dec. 591, 594 (BIA 2008), the BIA
explained “[t]he purported group’s social visibility—i.e., the
extent to which members of a society perceive those with the
characteristic in question as members of a social group—is of
particular importance in determining whether an alien is a
member of a claimed particular social group.”
The BIA’s attempts to clarify its “social visibility”
requirement received mixed reviews from the circuit courts.
In Henriquez-Rivas, 707 F.3d at 1085, we noted that most
circuits had accepted the BIA’s “social visibility” and
“particularity” criteria, but that the Third and Seventh
Circuits had rejected the criteria as an unreasonable
interpretation of the ambiguous statutory term.
In Henriquez-Rivas, we “clarif[ied] the ‘social visibility’
and ‘particularity’ criteria without reaching the ultimate
question of whether the criteria themselves are valid,” i.e.,
whether they were due Chevron deference. Id. at 1091.6 We
6
Since Henriquez-Rivas, we have issued opinions in two cases
involving the meaning of “membership in a particular social group.”
Flores Rios v. Lynch, 807 F.3d 1123 (9th Cir. 2015); Pirir-Boc v. Holder,
750 F.3d 1077 (9th Cir. 2014). In both cases, we acknowledged that the
BIA had revisited its interpretation of the phrase “particular social group”
in M–E–V–G– and W–G–R–. Flores Rios, 807 F.3d at 1124, 1127; Pirir-
Boc, 750 F.3d at 1079, 1082–84. However, in neither case did we address
REYES V. LYNCH 17
did, however, comment that “[s]o long as the ‘social
visibility’ and ‘particularity’ criteria are applied in a way that
did not directly conflict with prior agency precedent, we
would be hard-pressed to reject the new criteria as
unreasonable under Chevron.” Id. at 1089.
B
We now hold that the BIA’s interpretation in W–G–R–
and M–E–V–G– of the ambiguous phrase “particular social
group,” including the BIA’s articulation of the “particularity”
and “social distinction” requirements is reasonable and
entitled to Chevron deference. We consider the requirements
in turn.
1
We recognized in Henriquez-Rivas that the “particularity”
requirement is distinct from the “social visibility”
requirement. “The ‘particularity’ requirement is separate, and
it is relevant in considering whether a group’s boundaries are
so amorphous that, in practice, the persecutor does not
consider it a group.” 707 F.3d at 1091.
The BIA’s current articulation of its “particularity”
requirement is reasonable and is consistent with its own
precedent, which has long required that a particular social
group have clear boundaries and that its characteristics have
commonly accepted definitions. See, e.g., Matter of S–E–G–,
24 I. & N. Dec. at 585 (rejecting as too amorphous a
proposed group of “male children who lack stable families
what deference was due the BIA’s new articulation of its construction of
“membership in a particular social group.”
18 REYES V. LYNCH
and meaningful adult protection, who are from middle and
low income classes, who live in the territories controlled by
the MS-13 gang, and who refuse recruitment”); Matter of
A–M–E– & J–G–U–, 24 I. & N. Dec. 69, 76 (BIA 2007)
(explaining that “affluent Guatemalans” did not qualify as a
particular social group in part because the “characteristic of
wealth or affluence is simply too subjective, inchoate, and
variable to provide the sole basis for membership”); Matter
of C–A–, 23 I. & N. Dec. at 953, 959, 961 (rejecting a
proposed group of “noncriminal drug informants working
against the Cali drug cartel” due, in part, to the fact that the
distinction between government informants who had been
compensated for their services and those who acted out of
civic motives was not sufficient to carve out a particular
“subgroup” of uncompensated informants); Matter of
V–T–S–, 21 I. & N. Dec. 792, 798 (BIA 1997) (holding
“Filipino[s] of mixed Filipino-Chinese ancestry” cognizable
as a particular social group in part because a country
conditions report stated that 1.5% of the Philippine
population had an “identifiable” Chinese background). The
BIA’s statement of the purpose and function of the
“particularity” requirement does not, on its face, impose a
numerical limit on a proposed social group or disqualify
groups that exceed specific breadth or size limitations. Nor
is it contrary to the principle that diversity within a proposed
particular social group may not serve as the sine qua non of
the particularity analysis. Cordoba v. Holder, 726 F.3d 1106,
1116 (9th Cir. 2013); Henriquez-Rivas, 707 F.3d at 1093–94.
Rather, the BIA imposes the “particularity” requirement in
order to distinguish between social groups that are discrete
and those that are amorphous. Matter of W–G–R–, 26 I. & N.
Dec. at 214. Recognizing that, in order to be “particular,” a
group must have some definable boundary is not
unreasonable.
REYES V. LYNCH 19
We thus find the definition of the “particularity”
requirement articulated in W–G–R– and M–E–V–G– to be
both reasonable and consistent with the BIA’s own precedent.
Brand X, 545 U.S. at 980–81.
2
The BIA’s articulation of its “social distinction”
requirement is also reasonable. The “social distinction”
requirement is not, as Garay contends, a “new” requirement.
Rather, the “social distinction” requirement is reasonably
read to be precisely what the BIA characterizes it to be: a
renaming of the “social visibility” requirement. Matter of
W–G–R–, 26 I. & N. Dec. at 212.
In Henriquez-Rivas, we did not reject the erstwhile
“social visibility” requirement as an “unreasoned concept,” as
alleged by Garay. Rather, we examined the concept and
concluded that the “social visibility” inquiry cannot require
“on-sight” visibility. We held that the proper inquiry is
whether a proposed particular social group’s shared
characteristic or characteristics would “generally be
recognizable by other members of the community,” or
whether there was “evidence that members of the proposed
group would be perceived as a group by society.” 707 F.3d
at 1088–89 (internal quotation marks omitted). The BIA’s
explanation of its “social distinction” requirement is
consistent with our articulation of the appropriate inquiry.
Additionally, although we commented in Henriquez-Rivas
on the potential import of the persecutor’s perspective in
assessing “social visibility,” id. at 1089 (“Looking to the text
of the statute, in the context of persecution, we believe that
the perception of the persecutors may matter the most.”), the
20 REYES V. LYNCH
agency is not bound by our belief, as we did not hold that it
was the only reasonable construction of an unambiguous
statutory term.7 Brand X, 545 U.S. at 981; Pirir-Boc,
750 F.3d at 1083 n.6 (noting that Henriquez-Rivas left the
issue for the BIA to decide). Moreover, the BIA’s
articulation of the “social distinction” requirement does not
preclude consideration of the persecutor’s perspective.
Rather, as we acknowledged in Pirir-Boc, the BIA has noted
at least two ways in which the “perception of the applicant’s
persecutors may be relevant.”8 750 F.3d at 1083 n.6. We
noted that, “while the BIA did not give the persecutor’s
perspective the same role in the analysis as the one [this
Court] had recommended [in Henriquez-Rivas], it did give
that perspective an important place.” Id. Accordingly, the
BIA’s “social distinction” requirement does not unreasonably
discount the perceptions of persecutors.
Finally, the “social distinction” requirement is not
redundant in light of the “nexus” requirement for asylum and
withholding claims. Rather than conflate the “social
distinction” and “nexus” requirements, the BIA’s reasoning
reflects an appreciation of the need to distinguish between the
showing an applicant must make in order to demonstrate
membership in a “particular social group” and the showing
that is necessary to demonstrate that he was persecuted, or
7
Our belief was not unanimous. In a concurring opinion, Judge
McKeown observed that “[d]efining social visibility from the perspective
of society better comports with the case law” and “also makes common
sense.” Henriquez-Rivas, 707 F.3d at 1094 (McKeown, J., concurring).
8
These are (1) when persecution may lead to a group’s initial
recognition, and (2) in cases of persecution on account of imputed
grounds. Pirir-Boc, 750 F.3d at 1083 n.6 (citing M–E–V–G–, 26 I. & N.
Dec. at 242–43).
REYES V. LYNCH 21
fears persecution, “on account of” that membership. This is
consistent with the Supreme Court’s conception of the
“nexus” requirement. See INS v. Elias-Zacarias, 502 U.S.
478, 483 (1992) (explaining that “the statute makes motive
critical” and an asylum applicant must provide direct or
circumstantial evidence of his persecutors’ motives in order
to satisfy the “nexus” requirement).
Accordingly, we reject Garay’s challenges to the BIA’s
construction of the phrase “particular social group” because
we find that the BIA’s articulation of the “particularity” and
“social distinction” requirements in Matter of W–G–R– is
reasonable and entitled to Chevron deference.9 Brand X,
545 U.S. at 981.
III
Having determined that the BIA’s definition of particular
social group is entitled to Chevron deference, we next
consider Garay’s contention that the BIA erred in finding that
his proposed social group of “former members of the Mara 18
gang in El Salvador who have renounced their membership”
did not fit within that definition.
9
Garay also argues that the BIA’s analysis of international law is both
incomplete and flawed, supporting rejection of its “social distinction”
requirement. However, the BIA did consider international refugee
standards and determined that its approach to defining a particular social
group was not “fundamentally different from international standards.”
Matter of W–G–R–, 26 I. & N. Dec. at 221. Regardless, although the
United Nations Protocol Relating to the Status of Refugees and United
Nations High Commissioner for Refugees guidance may be useful in
construing the provisions added to the Immigration and Nationality Act
by the Refugee Act, they do not have the force of law. Aguirre-Aguirre,
526 U.S. at 427; Khan v. Holder, 584 F.3d 773, 783 (9th Cir. 2009).
22 REYES V. LYNCH
“The Attorney General, while retaining ultimate authority,
has vested the BIA with power to exercise the ‘discretion and
authority conferred upon the Attorney General by law’ in the
course of ‘considering and determining cases before it.’”
Aguirre-Aguirre, 526 U.S. at 425 (quoting 8 C. F. R.
§ 3.1(d)(1)). As a general rule, we review the BIA’s denial of
withholding of removal for substantial evidence. Garcia-
Milian v. Holder, 755 F.3d 1026, 1031 (9th Cir. 2014) (citing
Pagayon v. Holder, 675 F.3d 1182, 1190 (9th Cir. 2011)).
Under the substantial evidence standard, we may reverse the
BIA only on a finding “‘that the evidence not only supports
[a contrary] conclusion, but compels it—and also compels the
further conclusion’ that the petitioner meets the requisite
standard for obtaining relief.” Id. (quoting INS v. Elias-
Zacarias, 502 U.S. at 481 n. l.).
In Aguirre-Aguirre, the Supreme Court stated that “the
BIA should be accorded Chevron deference as it gives
ambiguous statutory terms ‘concrete meaning through a
process of case-by-case adjudication.’” 526 U.S. at 425
(quoting INS v. Cardoza-Fonseca, 480 U.S. 421, 448–49
(1987)). In Henriquez-Rivas, we held that we review the
BIA’s findings for substantial evidence, but that “[t]he BIA’s
construction of ambiguous statutory terms . . . is entitled to
deference under Chevron.” 707 F.3d at 1087. In this case,
whether we apply a “Chevron deference” or “substantial
evidence” standard of review—assuming they might in some
instances be different—makes no difference, because the
BIA’s application of the “particularity” and “social
distinction” criteria to Garay’s withholding claims was
reasonable.
The BIA’s application of the “particularity” requirement
to Garay is reasonable in light of the absence of record
REYES V. LYNCH 23
evidence demonstrating that Salvadoran society recognizes
the boundaries of a group comprised of former Mara 18
members who have renounced their membership, regardless
of the length and recency of that membership. Matter of
W–G–R–, 26 I. & N. Dec. at 221 (“The boundaries of a group
are not sufficiently definable unless the members of society
generally agree on who is included in the group, and evidence
that the social group proposed by the respondent is
recognized within the society is lacking in this case.”).
Similarly, we agree that substantial evidence supports the
BIA’s conclusion that Garay’s proposed group lacks social
distinction. Id. at 222–23. The record evidence does, as
Garay points out, include some evidence of rehabilitation
programs run for the benefit of former gang members and of
threats former gang members face from members of their
own and other gangs. The record evidence does not,
however, compel the conclusion that Salvadoran society
considers former gang members as a distinct social group,
e.g., distinct from current gang members who may also avail
themselves of government programs or from suspected gang
members who face discriminatory treatment and other
challenges in Salvadoran society. See Vitug v. Holder,
723 F.3d 1056, 1062 (9th Cir. 2013) (“We review for
substantial evidence the factual findings underlying the BIA’s
determination that a petitioner is not eligible for withholding
of removal. . . .”).
Accordingly, we reject Garay’s challenges to the BIA’s
determination that his proposed social group of “former
24 REYES V. LYNCH
members of the Mara 18 gang in El Salvador who have
renounced their membership” is not cognizable.10
IV
Garay also purports to challenge the BIA’s denial of his
withholding claim based on his membership in a particular
social group consisting of “deportees from the United States
to El Salvador.” This assertion appears to have been an
afterthought as his brief only asserts that the BIA’s decision
turned exclusively on particularity. The BIA’s decision is
entitled to deference, see supra page 21–22, and we conclude
that the BIA’s denial of withholding based on a particular
social group of “deportees from the United States to El
Salvador” is reasonable.
10
Garay made two additional arguments, neither of which are
persuasive. First, he argues that the BIA erred in relying on Arteaga v.
Mukasey, 511 F.3d 940 (9th Cir. 2007), to find Garay’s proposed social
group was not cognizable. Although the IJ relied on Arteaga, the BIA did
not and only mentioned Arteaga in a footnote. Matter of W–G–R–, 26 I.
& N. Dec. at 215 n.5. Since Arteaga was not crucial to the BIA’s
decision, we express no opinion on the correctness of the BIA’s footnote.
Second, Garay argues that the BIA’s articulation of the “particularity”
and “social distinction” requirements imposed a new evidentiary standard
and the BIA’s failure to give him an opportunity to meet that new standard
denied him due process. We note that Garay submitted extensive country
conditions evidence in support of his application and has identified no
additional evidence that he would have submitted that might change the
outcome. Thus, even if the BIA had articulated a new standard, Garay
would still have failed to show prejudice, and thus would not be entitled
to relief. See Padilla-Martinez v. Holder, 770 F.3d 825, 830 (9th Cir.
2014) (“To prevail on a due-process claim, a petitioner must demonstrate
both a violation of rights and prejudice.”).
REYES V. LYNCH 25
As we have explained in Section II B 1, the BIA imposes
the particularity requirement in order to distinguish between
social groups that are discrete and those that are amorphous.
See supra page 17–18. In W–G–R–, the BIA explained that
particularity “chiefly addresses the question of delineation, or
as earlier court decisions described it, the need to put ‘outer
limits’ on the definition of ‘particular social group.’” Matter
of W–G–R–, 26 I. & N. Dec. at 214.11
Although we have recognized that “social visibility” and
“particularity” tend to blend together, we have not merged the
two prongs. Henriquez-Rivas, 707 F.3d at 1090–91. As
noted, we held that “[t]he ‘particularity’ requirement is
separate, and it is relevant in considering whether a group’s
boundaries are so amorphous that, in practice, the persecutor
does not consider it a group.” Id. at 1091. We stated that “the
‘particularity’ consideration is merely one factor as to
11
The BIA referred in its opinion to its decision in Matter of
M–E–V–G, 26 I. & N. Dec. 227, decided the same day. In M–E–V–G, the
BIA explained:
A particular social group must be defined by
characteristics that provide a clear benchmark for
determining who falls within the group. Matter of
A–M–E– & J–G–U–, 24 I. & N. Dec. at 76 (holding
that wealthy Guatemalans lack the requisite
particularity to be a particular social group). It is
critical that the terms used to describe the group have
commonly accepted definitions in the society of which
the group is a part. Id. (observing that the concept of
wealth is too subjective to provide an adequate
benchmark for defining a particular social group).
Id. at 239. The BIA further held that a “group must also be discrete and
have definable boundaries—it must not be amorphous, overbroad, diffuse,
or subjective.” Id.
26 REYES V. LYNCH
whether a collection of individuals is considered to be a
particular social group in practice.” Id.
The BIA’s application of the “particularity” requirement
to Garay’s purported class of “deportees from the United
States to El Salvador” was reasonable. The BIA found that
a proposed class of deportees was too amorphous, overbroad
and diffuse because it included men, women, and children of
all ages, regardless of the length of time they were in the
United States, the reasons for their removal, or the recency of
their removal. Matter of W–G–R–, 26 I. & N. Dec. at 223.
Garay presented scarcely any contrary evidence.12 Viewing
all the evidence, the BIA’s rejection of Garay’s proposed
class was reasonable, if not compelled.
Indeed, the BIA’s determination is supported by case law
declining to recognize much more circumscribed purported
12
Garay’s only testimony in support of his proposed particular social
group of deportees was: “Because almost all the time the people that are
returned from here, or they are deported from here, they stay in detention
for investigation purposes.” However, Garay then qualified his statement
by indicating that the government was most interested in individuals who
have criminal records. In his brief to the BIA, Garay alleged in a footnote
that he “faces a danger of future persecution based on his membership in
a particular social group of deportees from the United States to El
Salvador,” and objects that the IJ “did not address this social group
definition at all.” In the next section of his brief, which addresses his
claim for relief under the CAT, Garay argued that he will be tortured
because he is a former gang member and a deportee. He asserts that
deportees are mistreated upon their return because they are presumed to
be gang members. Taking Garay’s assertions at face value, they do not
support a finding that all deportees from the United States constitute a
“discrete class of persons.” Matter of S–E–G–, 24 I. & N. Dec. at 584.
REYES V. LYNCH 27
groups of deportees.13 Most recently, in Ramirez-Munoz v.
Lynch, 816 F.3d 1226 (9th Cir. 2016), we affirmed the BIA’s
determination that a purported class of “imputed wealthy
Americans” deported to Mexico did not constitute a particular
social group. Citing Henriquez-Rivas, 707 F.3d at 1090, we
held that the proposed group was not “sufficiently particular
that it can be described with passable distinction that the
group would be recognized as a discrete class of persons.”
Ramirez-Munoz, 816 F.3d at 1229.
As in Ramirez-Munoz, the BIA’s rejection of Garay’s
purported class of “deportees from the United States to El
Salvador” is not contrary to our holding in Henriquez-Rivas
that “considerations of diversity of lifestyle and origin” may
not be “the sine qua non of ‘particularity’ analysis.” 707 F.3d
at 1093–94. To go so far would come close to doing away
with the particularity requirement, which was included in the
plain language of the statute enacted by Congress. Aguirre-
Aguirre, 526 U.S. at 419. However, this was not our intent.
Where a petitioner makes a prima facie showing of a
“discrete class of persons,” neither diversity of lifestyle nor
origin will undermine that group. But where, as here, a
petitioner proffers a group that is amorphous rather than
discrete, he can hardly be heard to argue that the BIA may not
consider the proposed group’s lack of cohesion in
determining that it is not particular.
13
See, for example, Delgado-Ortiz v. Holder, 600 F.3d at 1151–52
(holding that “returning Mexicans from the United States” are “too broad”
to qualify as a particular social group); Lizama v. Holder, 629 F.3d 440,
446–48 (4th Cir. 2011) (holding that “deportees with criminal histories”
returning to El Salvador from the United States are “too broad” to
constitute a particular social group).
28 REYES V. LYNCH
Applying the deference due to the BIA’s decision and
reviewing the entire record, we reject Garay’s challenge to
the BIA’s determination that his proposed group of
“deportees from the United States to El Salvador” is not
cognizable.
V
Garay challenges the BIA’s denial of his CAT claim as
based on legal error and on facts not found by the IJ. The
Government responds that substantial evidence supports the
agency’s decision and any error in the BIA’s assessment of
Garay’s CAT claim was invited because he asked the BIA to
undertake plenary review of his CAT claim. We find that the
denial of Garay’s CAT claim was premised on legal error and
vacate the denial of CAT relief.
We review de novo issues of law regarding CAT claims.
Edu v. Holder, 624 F.3d 1137, 1142 (9th Cir. 2010). “The
BIA’s findings underlying its determination that an applicant
is not eligible for relief under the CAT are reviewed for
substantial evidence.” Arteaga, 511 F.3d at 944. Under that
standard, we “uphold[] the BIA’s determination unless the
evidence in the record compels a contrary conclusion.” Id.
Where the BIA conducts its own review of the evidence and
law rather than adopting the IJ’s decision, “our review is
limited to the BIA’s decision, except to the extent that the IJ’s
opinion is expressly adopted.” Hosseini v. Gonzales,
471 F.3d 953, 957 (9th Cir. 2006) (internal quotation marks
omitted).
To qualify for CAT relief, an applicant must show that
“‘it is more likely than not that he . . . would be tortured if
removed . . . .’” Cole v. Holder, 659 F.3d 762, 770 (9th Cir.
REYES V. LYNCH 29
2011) (quoting 8 C. F. R. § 208.16(c)(2)). “Acts constituting
torture are varied, and include beatings and killings.”
Bromfield v. Mukasey, 543 F.3d 1071, 1079 (9th Cir. 2008);
see also Cole, 659 F.3d at 771 (same). An applicant for CAT
relief does not need to show that he would be tortured on
account of a protected ground. Kamalthas v. INS, 251 F.3d
1279, 1283 (9th Cir. 2001); see also Cole, 659 F.3d at 770
(“[T]he provision for deferral of removal under CAT applies
to all applicants, even those who . . . are former gang
members convicted of an aggravated felony.”).
Reviewing Garay’s claim on appeal, the BIA stated that
it reviewed the IJ’s decision for clear error. Matter of
W–G–R–, 26 I. & N. Dec. at 224–26. After reviewing
evidence related to Garay’s claims that he feared torture at
the hands of rival gangs, the police, or clandestine death
squads, id. at 224–25, the BIA concluded that “the
Immigration Judge’s predictive findings with respect to the
respondent’s torture claim are not clearly erroneous.” Id. at
225.
In a footnote, the BIA addressed the IJ’s statement that
the materials “contain little if any information concerning the
treatment of former gang members . . . beyond being killed.”
Id. at 226 n.9. The BIA read the IJ’s statement to reflect not
that the IJ believed killings are not torture, but “[r]ather, the
Immigration Judge held that the evidence was not sufficient
to show a clear probability that the respondent would be
tortured.” Id.
A
We are troubled by the BIA’s conclusion that the IJ’s
“predictive findings with respect to [Garay]’s torture claim
30 REYES V. LYNCH
are not clearly erroneous.” Matter of W–G–R–, 26 I. & N.
Dec. at 225. The BIA did not identify any specific
“predictive findings” in the IJ’s decision. At oral argument,
counsel for the Government was unable to point to any
language in the IJ’s decision that can be read to constitute
“predictive findings.”14
If the BIA was referring to the IJ’s conclusion that Garay
had not established that the El Salvadoran police were
looking for him, the BIA’s conclusion is sound. This,
however, is not enough to support the denial of Garay’s CAT
claim, which also identified gang members and clandestine
death squads as possible sources of feared torture. See Cole,
659 F.3d at 775 (remanding where the BIA failed to
“consider the aggregate risk that Cole would face from police,
death squads, and gangs if returned to Honduras”).
If the “predictive findings” the BIA was referring to
include the IJ’s discounting of Garay’s written description of
the torture he feared at the hands of gang members, this is
problematic for a number of reasons. First, the IJ’s
discounting of Garay’s description of the torture he feared
cannot reasonably be characterized as a “predictive finding.”
Second, the BIA did not acknowledge or correct the IJ’s
apparent disregard of Garay’s written declaration describing
Mara 18’s practice of killing defectors by placing tires around
them and setting them on fire. Garay’s failure to reiterate this
assertion in his testimony does not negate the assertion. See,
e.g., Lai v. Holder, 773 F.3d 966, 971 (9th Cir. 2014) (“It is
14
Before us, the Government does not adopt the BIA’s reading of the
IJ’s statement, but posits that the IJ “apparently meant that the materials
were no more specific than [Garay’s testimony] about how the death of
former gang members might come about.”
REYES V. LYNCH 31
well established that ‘the mere omission of details is
insufficient to uphold an adverse credibility finding.’”
(quoting Singh v. Gonzales, 403 F.3d 1081, 1085 (9th Cir.
2005))); Tekle v. Mukasey, 533 F.3d 1044, 1053 (9th Cir.
2008) (finding legal error where IJ failed to provide the
petitioner with an opportunity to explain a perceived
inconsistency).
Most importantly, however, the BIA’s interpretation of
the IJ’s statement as a “predictive finding” is problematic
because it does not correct the IJ’s inference that killings are
not torture. Whether reviewed for clear error as a factual
finding or reviewed de novo as a question of law or
judgment,15 we cannot read the IJ’s statement as reflecting
anything other than an erroneous view that killings are not
torture.16 Bromfield, 543 F.3d at 1079 (“Acts constituting
torture are varied, and include beatings and killings.”).
The BIA should have acknowledged and corrected the
IJ’s error and remanded the matter to the IJ. See Figueroa v.
15
In Ridore v. Holder, 696 F.3d 907 (9th Cir. 2012), we agreed with
the Third Circuit that the “likelihood of torture” encompasses two
inquiries: “‘(1) what is likely to happen to the petitioner if removed; and
(2) does what is likely to happen amount to the legal definition of torture.”
Id. 915–16 (quoting Kaplun v. Att’y. Gen., 602 F.3d 260, 271 (3d Cir.
2010)). The first is a factual question and subject to clear error review; the
second is a legal question subject to de novo review. Id.
16
Garay alleges in his Reply Brief that the same IJ that heard Garay’s
case concluded in another case that killing is not torture. It appears that
in an unpublished decision, the BIA remanded in light of our opinion in
Bromfield, 543 F.3d 1071, to permit the IJ to conduct further fact-finding
in order to determine “whether the killings at issue in [that] case
constituted torture.” See In re Dionicio Ziranda-Ambriz, File No. A088-
738-879 (BIA Jan. 22, 2013) at 3.
32 REYES V. LYNCH
Mukasey, 543 F.3d 487, 498 (9th Cir. 2008) (reversing and
remanding where the BIA failed to correct an IJ’s legal error).
Further, it appears that the IJ’s error prevented the IJ from
undertaking the necessary review of all the record evidence,
including evidence that former gang members are killed, and
from assessing whether Garay demonstrated a probability that
he would be killed or otherwise tortured.17
B
The Government maintains that, despite the BIA being
generally precluded from undertaking its own fact finding in
the first instance, it could do so on Garay’s appeal because he
requested plenary review of his CAT claim. We reject this
argument.
As the Government concedes, the BIA was not
empowered to undertake the necessary fact finding to decide
17
We also reject the BIA’s alternative basis for denying CAT relief.
The BIA purported to find that there was insufficient evidence of
government acquiescence to any torture by gang members. W–G–R–,
26 I. & N. Dec. at 226; see 8 C. F. R. § 208.18 (defining torture in relevant
part as “pain or suffering . . . 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.”). However, the IJ did not make any findings about
acquiescence and the BIA’s own regulations prevent the BIA from making
its own factual findings and require it to remand cases to the IJ if further
fact-finding is needed. 8 C. F. R. § 1003.1(d)(3)(I), (iv). The BIA
followed this principle in the withholding context when it declined to
discuss whether the Salvadoran government was unable or unwilling to
control the Mara 18 gang members because the IJ had not made findings
on it, but oddly, it did not follow the same rule in the CAT context.
Compare W–G–R–, 26 I. & N. Dec. at 224 n.8 with id. at 226.
 REYES V. LYNCH 33
Garay’s claim in the first instance.18 Moreover, the invited
error doctrine, which the Government invokes, does not
relieve the agency of its obligation to follow its own
regulations and apply the correct standard of review. Cf.
Amado v. Gonzalez, 758 F.3d 1119, 1133 n.9 (9th Cir. 2014)
(“‘[I]t is one thing to allow parties to forfeit claims, defenses,
or lines of argument; it would be quite another to allow
parties to stipulate or bind us to application of an incorrect
legal standard, contrary to the congressional purpose.’”
(quoting Gardner v. Galetka, 568 F.3d 862, 879 (10th Cir.
2009))); United States v. Lindsey, 634 F.3d 541, 555 (9th Cir.
2011) (“[I]n order for the invited error doctrine to apply, a
defendant must both invite the error and relinquish a known
right.”).
VI
Accordingly, we deny Garay’s petition with respect to his
withholding claims, and grant only with respect to the denial
18
Under 8 C. F. R. § 1003.1(d)(3)(I) and (iv), “(1) the Board will not
engage in de novo review of findings of fact determined by the
immigration judge; and (2) except for the taking of administrative notice
of commonly known facts, the Board will not engage in factfinding in the
course of deciding appeals.” Brezilien v. Holder, 569 F.3d 403, 412 n.3
(9th Cir. 2009); Ridore, 696 F.3d at 911. “Rather, ‘[f]acts determined by
the immigration judge, including findings as to the credibility of
testimony, shall be reviewed only to determine whether the findings of the
immigration judge are clearly erroneous.’” Id. (quoting 8 C. F. R.
§ 1003.1(d)(3)(I)). “[T]he BIA cannot disregard the IJ’s findings and
substitute its own view of the facts. Either it must find clear error,
explaining why; or, if critical facts are missing, it may remand to the IJ.”
Id. at 919. “In contrast to these substantive limitations on factfinding,
‘[t]he Board may review questions of law, discretion, and judgment on all
other issues in appeals from decisions of immigration judges de novo.’”
Brezilien, 569 F.3d at 412 n.3 (quoting 8 C. F. R. § 1003.1(d)(3)(ii)).
34 REYES V. LYNCH
of his application for CAT relief, which we vacate and
remand to allow the agency to reconsider the application for
CAT relief recognizing that killings can constitute torture and
to undertake the requisite fact finding in accordance with the
agency’s regulations.
PETITION FOR REVIEW GRANTED in part and
DENIED in part; denial of CAT relief VACATED and
REMANDED.