Mousa v. Garland ( 2023 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 3 2023
MOLLY C. DWYER, CLERK
FOR THE NINTH CIRCUIT U.S. COURT OF APPEALS
MOHAMED SALADDIN MOUSA, No. 22-541
Petitioner, Agency No. A058-847-100
v.
MEMORANDUM*
MERRICK B. GARLAND, U.S. Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted February 15, 2023
San Francisco, California
Before: S.R. THOMAS, MILLER, and SANCHEZ, Circuit Judges.
Mohamed Saladdin Mousa (“Mousa”), a native and citizen of Egypt,
petitions for review of the Board of Immigration Appeals’ (“BIA”) decision which
vacated the Immigration Judge’s (“IJ”) grant of deferral of removal under the
Convention Against Torture (“CAT”) based on a finding that he is likely to be
tortured because of his history of violent and criminal behavior and affirmed the
IJ’s denial of asylum, withholding of removal, and CAT deferral based on his
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Jewish faith, apostate status, and mental health diagnoses. We have jurisdiction
under 8 U.S.C. § 1252. We deny in part and grant in part Mousa’s petition for
review and remand to the agency for further proceedings.
1. The BIA did not abuse its discretion in affirming the IJ’s denial of
asylum and withholding of removal based on its determination that Mousa’s 2017
assault conviction constituted a particularly serious crime. See Bare v. Barr, 975
F.3d 952, 961 (9th Cir. 2020). The IJ and the BIA properly considered the relevant
circumstances of the offense, including Mousa’s self-defense claim and Mousa’s
mental health symptoms at the time of the events in question. This Court cannot
reweigh the evidence to reach a different conclusion as to the seriousness of the
crime. See Avendano-Hernandez v. Lynch, 800 F.3d 1072, 1078 (9th Cir. 2015).
2. We conclude the BIA erred in vacating the IJ’s grant of deferral of
removal under CAT. BIA regulations prohibit the Board from “engag[ing] in de
novo review of findings of fact determined by an [IJ].” 8 C.F.R. § 1003.1(d)(3)(i).
In reviewing an IJ’s factual findings for clear error, “the 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.”
Ridore v. Holder, 696 F.3d 907, 919 (9th Cir. 2012). Whether the BIA has applied
the correct standard of review is a question of law. Rodriguez v. Holder, 683 F.3d
1164, 1170 (9th Cir. 2012). “[O]ur task is to determine whether the BIA faithfully
2
employed the clear error standard or engaged in improper de novo review of the
IJ’s factual findings.” Id.The IJ made two predictive findings relevant to its grant of CAT deferral.
First, the IJ found that given Mousa’s extensive “history of violent and criminal
behavior” in the United States spanning more than a decade, it is likely that Mousa
“would at some point come to the attention of law enforcement in Egypt, which, in
turn, is likely to result in his arrest and detention.” In support of its finding, the IJ
pointed to Mousa’s 35-page FBI rap sheet detailing over 20 arrests and convictions
between 2008 and 2019. Second, the IJ found that “[o]nce in
detention . . . Egyptian authorities are more likely than not to engage in torturous
conduct to extract a confession or otherwise punish [Mousa] for his criminal
conduct.”
The BIA vacated the IJ’s grant of CAT deferral, explaining that the IJ
“clearly erred to the extent he concluded that it is more likely than not that [Mousa]
will be tortured because of his history of violent and criminal behavior.” The BIA
acknowledged evidence in the record “reflect[ing] reported incidents of torture by
police and prison guards” and did not disagree with the IJ’s finding that Egyptian
authorities would likely engage in torture if Mousa were placed in detention.1
1
In briefing before the BIA and this Court, the Government did not challenge the
IJ’s finding that Mousa is likely to be tortured if he is detained by Egyptian
3
However, the BIA doubted that Mousa would end up in detention given that
Mousa spent the first 25 years of his life in Egypt without being arrested or
committing a crime.
We conclude the BIA engaged in de novo review of the IJ’s factual findings,
improperly substituting its own view of the evidence for that of the IJ. The BIA
gave more weight to the fact that Mousa had no criminal record in Egypt than to
Mousa’s more recent record of over 20 criminal arrests and convictions in the
United States, including an assault conviction that the BIA deemed a particularly
serious offense. See Soto-Soto v. Garland, 1 F.4th 655, 659 (9th Cir. 2021) (“[I]f it
appears that the BIA gave more weight to certain facts in the record than to others,
leading to a different conclusion from the IJ,” this Court “may justifiably infer that
the BIA applied the wrong standard of review.”). The IJ had ample reason to
conclude that Mousa is likely to come to the attention of Egyptian authorities when
he is removed from the United States based on his conviction for a particularly
serious crime. The BIA failed to explain how the IJ’s predictive factual findings
were implausible, illogical, or unsupported by the record in this case. See Guerra
v. Barr, 974 F.3d 909, 913–16 (9th Cir. 2020).
authorities. The Government therefore forfeited any challenge to this issue. See
Martinez v. Sessions, 873 F.3d 655, 660 (9th Cir. 2017).
4
We grant Mousa’s petition for review as to his application for CAT deferral
based on his history of violent and criminal behavior and remand for
reconsideration under the correct standard. Ornelas-Chavez v. Gonzales, 458 F.3d
1052, 1058 (9th Cir. 2006). Because the BIA must, on remand, consider “all
evidence relevant to the possibility of future torture,” see 8 C.F.R. § 208.16(c)(3),
we need not address Mousa’s other arguments that the BIA and IJ failed to
consider all his evidence when the agency denied CAT deferral based on his
Jewish faith, his apostate status, or his mental health diagnoses. See
Velasquez-Samayoa v. Garland, 49 F.4th 1149, 1158 (9th Cir. 2022).
The motion for a stay of removal is granted. The stay of removal remains in
place until the mandate issues.
PETITION GRANTED in part, DENIED in part, and REMANDED.
5