Jean Ridore v. Eric H. Holder Jr. , 696 F.3d 907 ( 2012 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JEAN BAPTISTE RIDORE, AKA John 
Ridore,
No. 08-71379
Petitioner,
v.  Agency No.
A030-689-693
ERIC H. HOLDER Jr., Attorney
OPINION
General,
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
August 31, 2011—San Francisco, California
Filed October 3, 2012
Before: Raymond C. Fisher and Johnnie B. Rawlinson,
Circuit Judges, and George H. Wu, District Judge.*
Opinion by Judge Fisher
*The Honorable George H. Wu, United States District Judge for the
Central District of California, sitting by designation.
11981
11984 RIDORE v. HOLDER
COUNSEL
Kari Elisabeth Hong (argued), Law Office of Kari E. Hong,
Oakland, California, for the petitioner.
Kiley L. Kane (argued), Trial Attorney, United States Depart-
ment of Justice; OIL, United States Department of Justice;
Mary Jane Candaux, Assistant Director, United States Depart-
ment of Justice; John Hogan, Senior Litigation Counsel,
United States Department of Justice, Washington, D.C.; Chief
Counsel ICE, Office of the Chief Counsel, Department of
Homeland Security, San Francisco, California, for the respon-
dent.
OPINION
FISHER, Circuit Judge:
Jean Baptiste Ridore petitions for review of a decision of
the Board of Immigration Appeals (BIA) ordering him
removed to his native Haiti. The BIA vacated the decision of
the immigration judge (IJ) granting Ridore protection under
the Convention Against Torture (CAT) and cancellation of
RIDORE v. HOLDER 11985
removal. Ridore argues that the BIA acted beyond the scope
of its authority under 8 C.F.R. § 1003.1(d)(3) by reviewing
the IJ’s findings under a de novo rather than clear error stan-
dard and improperly engaging in its own factfinding. We
agree that the BIA committed legal error in vacating the IJ’s
decision with respect to the CAT protection claim, and there-
fore grant Ridore’s petition and remand to the BIA to review
the IJ’s CAT findings applying the clear error standard. As to
cancellation of removal, the BIA applied the correct standard
of review, so we deny Ridore’s petition to that extent. We
vacate, however, that part of the BIA’s order and remand to
the BIA for reconsideration in light of our remand on Ridore’s
CAT claim.
BACKGROUND
Ridore, a native and citizen of Haiti, was admitted to the
United States as a lawful permanent resident in 1973, at the
age of 12. His father, sister and brother are United States citi-
zens. Ridore lived with his mother and grandmother. When he
was approximately 21 years old, Ridore’s mother and grand-
mother were killed, and he discovered their murdered bodies
in their home. He subsequently developed a problem with
alcohol, and between 1991 and 2004 he was convicted of a
string of criminal offenses, including petit larceny, theft,
criminal trespass, possession of drug paraphernalia, second
degree commercial burglary, failure to maintain liability
insurance, failure to use a safety restraint, fictitious registra-
tion display, obscene conduct, reckless driving, failure to pro-
vide proof of insurance, speeding, operating without liability
insurance, driving without privileges and, on three occasions,
driving while intoxicated. Ridore came to the attention of the
federal immigration authorities, who initiated the removal
proceedings that are the basis of this appeal.
Initial Proceedings. In 2003, the Department of Homeland
Security (DHS) issued Ridore a Notice to Appear (NTA)
alleging that he was removable under 8 U.S.C.
11986 RIDORE v. HOLDER
§ 1227(a)(2)(A) for having been convicted of a felony relating
to theft or burglary and sentenced to a term of imprisonment
of at least one year, and for having committed two crimes of
moral turpitude.
Ridore applied for cancellation of removal and moved to
terminate removal proceedings, arguing that he had derivative
citizenship through his father. The IJ found Ridore removable
on both grounds alleged in the NTA, denied cancellation of
removal because of Ridore’s aggravated felony conviction
and denied his motion to terminate removal proceedings
because he failed to prove derivative citizenship.
On appeal, the BIA affirmed the finding that there was
insufficient evidence of derivative citizenship, but reversed
the IJ’s finding that Ridore was removable as an aggravated
felon. Because reversal of the aggravated felony charge made
Ridore potentially eligible for relief that was previously
barred, including withholding of removal and cancellation of
removal, the BIA remanded the case to the IJ.
2005 Proceedings Before the IJ on Remand. On remand,
Ridore in 2005 added applications for asylum, withholding of
removal and CAT protection to his pending cancellation of
removal proceeding. The IJ heard testimony from Ridore, his
brother Evald and — most relevant to this appeal — an expert
witness, Michelle Karshan, the founder of Alternative
Chance, an organization that provides aid to criminal depor-
tees in Haiti. The IJ also reviewed an affidavit from Karshan,
the State Department’s 2004 Country Report on Haiti’s
Human Rights Practices and “numerous background materi-
als” Ridore submitted.
The parties were provided an opportunity to submit briefs
on the significance of In re J-E-, 23 I. & N. Dec. 291 (BIA
2002) (en banc), abrogated on other grounds by Azanor v.
Ashcroft, 364 F.3d 1013, 1019-20 (9th Cir. 2004), in which
the BIA rejected a similar claim for CAT protection based on
RIDORE v. HOLDER 11987
the detention and life-threatening conditions criminal depor-
tees allegedly faced in Haitian prisons. In April 2005, the IJ
denied Ridore’s applications for asylum and withholding of
removal but granted CAT protection and cancellation of
removal. The IJ concluded that CAT protection was war-
ranted because Ridore’s specific circumstances and the cur-
rent conditions in Haiti’s prisons were distinguishable from
those existing at the time of In re J-E-, such that cancellation
was warranted as a matter of discretion.
2007 Appeal to the BIA. The DHS appealed the IJ’s deci-
sion to the BIA, which sustained the appeal and vacated the
IJ’s grant of CAT protection and cancellation of removal. The
BIA concluded that Ridore’s case was controlled by In re J-
E- for the purposes of his CAT protection claim, and that a
discretionary grant of cancellation was unwarranted. Ridore
now petitions for review.
JURISDICTION AND STANDARD OF REVIEW
We have exclusive jurisdiction over petitions for review of
final orders of removal. See 8 U.S.C. § 1252. We have juris-
diction to review Ridore’s legal challenges to the BIA’s
denial of his CAT claim pursuant to § 1252(a)(2)(D).
Although we typically may not review the BIA’s finding that
a case does not warrant a discretionary grant of cancellation
of removal, see id. § 1252(a)(2)(B)(i), such jurisdiction strip-
ping provisions do not apply where, as here, the petitioner
raises a question of law — whether the BIA acted within its
regulatory authority. See Afridi v. Gonzales, 442 F.3d 1212,
1218 (9th Cir. 2006), abrogated on other grounds by Estrada-
Espinoza v. Mukasey, 546 F.3d 1147 (9th Cir. 2008).
We review factual findings for substantial evidence, see
Azanor, 364 F.3d at 1018, and legal questions de novo, see De
Martinez v. Ashcroft, 374 F.3d 759, 761 (9th Cir. 2004).
Whether the BIA has applied the correct standard of review
11988 RIDORE v. HOLDER
is a question of law. See Rodriguez v. Holder, 683 F.3d 1164,
1169 (9th Cir. 2012).
DISCUSSION
[1] The central question presented here is whether the BIA,
in overruling the IJ’s grants of CAT protection and discretion-
ary cancellation of removal, failed to apply a clear error stan-
dard of review to the IJ’s factual findings and engaged in
factfinding that it is not authorized to do in its appellate func-
tion. The governing regulations explicitly state that the BIA
shall not “engage in de novo review of findings of fact deter-
mined by an immigration judge.” 8 C.F.R. § 1003.1(d)(3)(i).
Rather, “[f]acts determined by the immigration judge, includ-
ing findings as to the credibility of testimony, shall be
reviewed only to determine whether the findings of the immi-
gration judge are clearly erroneous.” Id. The BIA may, how-
ever, “review questions of law, discretion, and judgment . . .
de novo.” Id. § 1003.1(d)(3)(ii). “Where the BIA engages in
de novo review of an IJ’s factual findings instead of limiting
its review to clear error, it has committed an error of law.”
Rodriguez, 683 F.3d at 1170. Further, the BIA may “not
engage in factfinding in the course of deciding appeals.” 8
C.F.R. § 1003.1(d)(3)(iv).
Ridore argues that the BIA violated these regulations,
either by failing to justify its rejection of evidence the IJ
relied upon or by ignoring it entirely — essentially engaging
in de novo review and its own factfinding. We agree with him
as to his CAT claim, but not as to cancellation of removal,
although we conclude that the BIA should reconsider its dis-
cretionary ruling in light of our remand on the CAT claim.
I. CAT Protection
The essence of Ridore’s claim for protection under CAT is
the likelihood that immediately upon his return to Haiti he
will be put into prison for a prolonged time under horrific
RIDORE v. HOLDER 11989
conditions that his expert testified and the IJ found would be
almost “equivalent to a death warrant” and qualify as “tor-
ture” under CAT.
[2] The BIA sitting en banc in 2002 addressed and rejected
a similar claim in In re J-E-, 23 I. & N. Dec. 291. There, a
Haitian criminal deportee sought CAT relief, arguing that if
removed he would be detained indefinitely in prison where
the conditions were inhumane and the guards mistreated pris-
oners, and that such detention constituted torture. An appli-
cant may be eligible for CAT protection when he or she can
show “that it is more likely than not that he or she would be
tortured if removed to the proposed country of removal.” 8
C.F.R. § 1208.16(c)(2); see also Unuakhaulu v. Gonzales, 416
F.3d 931, 939 (9th Cir. 2005). “In assessing whether it is
more likely than not that an applicant would be tortured in the
proposed country of removal, all evidence relevant to the pos-
sibility of future torture shall be considered.” 8 C.F.R.
§ 1208.16(c)(3). This may include “[e]vidence of gross, fla-
grant or mass violations of human rights within the country of
removal.” Id. § 1208.16(c)(3)(iii). “For an act to constitute
torture it must be: (1) an act causing severe physical or mental
pain or suffering; (2) intentionally inflicted; (3) for a pro-
scribed purpose; (4) by or at the instigation of or with the con-
sent or acquiescence of a public official who has custody or
physical control of the victim; and (5) not arising from lawful
sanctions.” In re J-E-, 23 I. & N. Dec. at 297 (citing 8 C.F.R.
§ [1]208.18(a)). In In re J-E-, the BIA concluded that,
although the Haitian prison conditions were deplorable, the
deportee had not carried his burden of showing they met the
definition of torture under CAT. First, the BIA held that
although the imprisonment practices were “unacceptable and
must be discontinued, there is no evidence that Haitian
authorities [we]re detaining criminal deportees with the spe-
cific intent to inflict severe physical or mental pain or suffer-
ing.” Id. at 300. Instead, the BIA concluded that the Haitian
government’s attempts to improve prison conditions, and will-
ingness to allow human rights organizations to monitor prison
11990 RIDORE v. HOLDER
conditions and provide assistance, demonstrated that the poor
conditions were “the result of budgetary and management
problems as well as the country’s severe economic difficul-
ties.” Id. at 301. The BIA also held that because Haiti has a
“legitimate national interest in protecting its citizens from
increased criminal activity,” and because its detention proce-
dures are “designed ‘to prevent the bandits from increasing
the level of insecurity and crime in the country,’ ” Haiti’s
detention “policy is a lawful sanction.” Id. at 300 (quoting
U.S. Dep’t of State, Haiti, Country Reports on Human Rights
Practices — 2000 (Feb. 2001)).
The key questions, therefore, are whether Ridore provided
evidence sufficient to show that the prison conditions in Haiti
have changed for the worse since In re J-E- was decided,
undermining the factual predicates for that decision, and
whether he has shown individual circumstances in his case
that there is a likelihood he will face “torture” qualifying him
for CAT. Cf. Lopez v. Ashcroft, 366 F.3d 799, 805 (9th Cir.
2004) (holding that, in the asylum context, “the BIA must
provide an individualized analysis of how changed conditions
will affect the specific petitioner’s situation” (citation and
internal quotation marks omitted)). The IJ found on the record
before him there was, in fact, such evidence.
A. IJ Decision
The IJ recognized that he was “bound by the . . . decision
in [In re] J-E-.” We have deferred to the BIA’s conclusion in
In re J-E- that detention of criminal deportees alone — when
there is no evidence of specific intent to inflict severe pain or
suffering — is insufficient to constitute torture under CAT.
See Theagene v. Gonzales, 411 F.3d 1107, 1113 (9th Cir.
2005); see also Villegas v. Mukasey, 523 F.3d 984, 989 (9th
Cir. 2008). The IJ here, however, made several factual find-
RIDORE v. HOLDER 11991
ings that led him to conclude that Ridore’s case was distinguish-
able.1 The IJ summarized his findings and conclusions thus:
In this case, [Ridore] . . . only needs to show that
he will be subjected to torture for any reason. . . .
[W]e have the testimony of Ms. Karshan who testi-
fied that clearly this individual upon his return back
to Haiti will be turned over to the Haitian authorities
who will immediately intern him in one of their
prison facilities where he will be held indefinitely
while the authorities determine what should be done
with him. This is based on the policy of the Haitian
authorities who fear that these individuals who have
been convicted of crimes in the United States will
return back to Haiti where they will commit further
crimes.
In this case, the Court is bound by the Board’s
decision in [In re] J-E-, [where the Board found] that
the evidence submitted by the respondent did not
establish that conditions he would face in Haiti met
the definition of torture because the Haitian govern-
ment’s policy of detaining criminal deportees consti-
tutes a lawful sanction, there was not a showing of
specific intent; and the detention was not imposed
for a prescribed purpose, such as coercion or dis-
crimination.
In this case though, the Court feels that this case
can be distinguished from [In re] J-E-. The Haitian
constitution makes it unlawful to detain persons not
1
We do not decide whether the IJ’s assessment of the evidence or his
factual findings and conclusions therefrom were correct. That was and
remains the BIA’s responsibility, at least in the first instance. As we shall
explain, with specific examples, we hold that the BIA did not properly
evaluate the IJ’s findings, in some cases at all, and in any event not under
the proper standard of clear error review. Accordingly, we shall remand
to the BIA to review the IJ’s CAT decision anew.
11992 RIDORE v. HOLDER
involved in criminal activity. Therefore, this Court
will not find that the Haitian government’s policy of
indefinite detention of aliens not being charged with
a crime in Haiti can constitute legal sanctions.
Furthermore, the conditions in Haitian prisons
have continuously declined over the past year. These
conditions have now risen to the point that incarcer-
ation in a Haitian prison is almost the equivalent to
a death warrant. And even [if] not, that the condi-
tions are so deplorable where disease is so rampant
that these individuals detained in these prisons will
have to suffer some long term problems that . . . can
only be described as acts of torture. Not only do the
Haitian authorities have a duty to protect their citi-
zens whether they are criminals or not, but they have
an ethical and moral duty to see that the people
detained in their prisons are not subject to such harsh
conditions that they are life threatening. Clearly, the
fact that they allow beriberi and tuberculosis to run
rampant through the prison population, cannot be
solely attributable to being unable to change those
conditions. Clearly, the fact that they do not main-
tain proper medical facilities in those institutions
can only be attributable to their willingness to use
the jails to harm the inmates so that they will never
be a threat to the population again. That is not the
purpose of a prison institution, to kill off its inmates
so as to reduce the criminal element in the country.
The reports also indicate the government has
placed in authority persons who were previously
accused of committing human rights abuses. There-
fore, one can only assume that these people are
being put in authority with the knowledge of the gov-
ernment that they will continue their old practices of
abusing as well as torturing the inmates under their
custody. Furthermore, one only has to look at the
RIDORE v. HOLDER 11993
prison population which is largely former supporters
of the previous government and criminal detainees
deported from [the] United States. Therefore, again,
one can only assume that these people were put in
charge because the government, as a policy, wishes
to have the prison population subjected to torture and
other acts.
A question [that] arises though is whether or not
the harsh conditions in prison constitutes [sic] tor-
ture. Torture . . . is any act by which “severe pain or
suffering” is intentionally inflicted on persons. In
this case, it cannot be said that the respondents are
subject to severe pain. Although, again, I would
assume that having beriberi or tuberculosis or some
other life threatening disease probably has, as an ele-
ment, severe pain. But, clearly, the fact that Con-
gress stated that it is either severe pain or suffering
also indicates that suffering may also be an element
of torture. And, clearly, suffering from malnutrition
or disease is clearly severe suffering and, therefore,
constitutes an act of torture.
Therefore, in this case clearly [Ridore] is facing a
long time imprisonment. He has no family in Haiti
who can care for him. Furthermore, he has no family
in Haiti who can arrange with the authorities to have
[him] released into their custody. Based on Ms. Kar-
shan’s statements that these individuals, therefore,
face long term imprisonment, . . . the Court must
find that the likelihood that [Ridore] would suffer
torture in that case is very likely.
(Citations omitted and emphases added).
On the government’s appeal, the BIA vacated the IJ’s deci-
sion notwithstanding his fact-based findings. We address first
11994 RIDORE v. HOLDER
the BIA’s standard of review, and then its decision overturn-
ing the IJ.
B. BIA Standard of Review
As Ridore points out, the BIA’s decision nowhere mentions
a standard of review. The government argues that, regardless,
the BIA properly disagreed with the IJ that as a matter of law
Ridore’s circumstances were distinguishable from In re J-E-;
it therefore did not apply de novo review to fact findings or
make any of its own, but simply weighed the evidence differ-
ently.
Such weighing of the evidence, the government contends,
is permitted under the BIA regulations as interpreted in Mat-
ter of V-K-, 24 I. & N. Dec. 500 (BIA 2008). Matter of V-K-
considered the BIA’s authority to reverse an IJ’s determina-
tion that an applicant was entitled to CAT protection and held
that, “while we review[ ] the Immigration Judge’s factual rul-
ings for clear error, we do not consider a prediction of the
probability of future torture to be a ruling of ‘fact.’ ” 24 I. &
N. Dec. at 501. The BIA concluded that § 1003.1(d)(3)’s reg-
ulatory history “indicates that there was no intent to apply the
restrictive ‘clearly erroneous’ test to mixed questions of fact
and law where the so-called ‘fact’ consists of a finding as to
the degree of possibility of a result occurring that is necessary
to sustain a statutory basis for eligibility (e.g., . . . the chance
of . . . torture if the alien is removed).” Id.
The BIA reached this conclusion relying in part on the
comments accompanying the regulations providing that “[t]he
‘clearly erroneous’ standard does not apply to determinations
of matters of law, nor to the application of legal standards, in
the exercise of judgment or discretion. This includes judg-
ments as to whether the facts established by a particular alien
amount to ‘past persecution’ or a ‘well-founded fear of future
persecution.’ ” Id. (quoting Board of Immigration Appeals:
Procedural Reforms To Improve Case Management, 67 Fed.
RIDORE v. HOLDER 11995
Reg. 54,878, 54,890 (Aug. 26, 2002)). In the BIA’s estima-
tion, “an Immigration Judge’s prediction or finding regarding
the likelihood that an alien will be tortured may be reviewed
de novo because, like a conclusion relating to whether a statu-
torily prescribed chance of persecution or level of hardship
exists, it relates to whether the ultimate statutory requirement
for establishing eligibility for relief was met and is therefore
a mixed question of fact and law, or a question of ‘judg-
ment.’ ” Id. at 501-02. Ultimately, the BIA stated that “[i]n
reviewing the record, we disagreed with the Immigration
Judge’s mixed factual and legal determination that a prepon-
derance of the evidence showed that it was more likely than
not that the respondent would be tortured . . . .” Id. at 502.
The BIA noted that in reaching this conclusion, it “only
assessed the facts as found by the Immigration Judge and
established by the evidence entered into the record, determin-
ing that they were insufficient to meet the respondent’s bur-
den of proof for protection.” Id. (emphasis added). The BIA
added, “[w]e believe that we acted in accordance with the rel-
evant regulations and our role as an appellate body. 8 C.F.R.
§ 1003.1(d)(3). Indeed, it would appear essential to the perfor-
mance of our appellate function as contemplated by the Attor-
ney General that we possess the authority to review de novo
findings deemed by an Immigration Judge to satisfy an ulti-
mate statutory standard.” Id. Although we have not ruled on
the correctness of Matter of V-K-, the Third Circuit has in a
thoughtful opinion that adds this important gloss:
In the case of the likelihood of torture, there are
two distinct parts to the mixed question: (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? The two parts should be exam-
ined separately.
The first question is factual. A finding that a peti-
tioner is likely to be imprisoned (based, for instance,
on the evidence of gross violations of human rights
11996 RIDORE v. HOLDER
in the country of removal) is a finding of fact. A
finding that a petitioner is likely to be extorted for
vast sums of money if removed (based, for example,
on the testimony of the petitioner and his expert) is
also a finding of fact. So is a finding that a petitioner
is likely to be beaten by government officials based
on a finding that the petitioner was severely beaten
in the past. This is to be distinguished from the legal
consequence of those underlying facts.
The second question, however, is a legal question.
Torture is a term of art, and whether imprisonment,
beating, and extortion are severe enough to rise to
the level of torture is a legal question. While the
underlying facts vary from petitioner to petitioner,
the legal question remains the same: do the facts
found by the IJ (and that the BIA determines are not
clearly erroneous) meet the legal requirements for
relief under the CAT? This is a question of law
where the IJ has no comparative advantage over the
BIA.
Glueing the two questions together, however, does
not entitle the BIA to review the first question, the
factual one, de novo. It must break down the inquiry
into its parts and apply the correct standard of
review to the respective components.
Kaplun v. Attorney Gen., 602 F.3d 260, 271 (3d Cir. 2010)
(emphases added); see also Rodriguez, 683 F.3d at 1176-77
(in “ma[king] its own findings as to the accuracy of the histor-
ical facts discussed” by a witness and “making its own finding
regarding [the petitioner’s] credibility,” the BIA impermiss-
ibly “substituted its own reading of the evidence for that of
the IJ without applying the deference required by the clear
error standard of review,” thereby violating 8 C.F.R.
§ 1003.1(d)(3)(i)). Here the government argues that the BIA
accepted the IJ’s factual findings, but vacated the decision
RIDORE v. HOLDER 11997
because it was “not persuaded that [Ridore’s] case [was] dis-
tinguishable from [In re] J-E-.” Ridore argues, however, that
the BIA’s decision in fact improperly conflated these “two
distinct parts” by applying a de novo standard of review to the
IJ’s factual findings — to the extent it even considered them
— and improperly engaged in its own factfinding.
C. BIA Decision
The BIA rejected the IJ’s CAT ruling in a single, largely
conclusory paragraph that essentially recited the general con-
clusions the BIA reached in 2002 in In re J-E-. It did not
address most of the IJ’s specific factual findings, nor the evi-
dence underlying his findings — particularly the extensive
evidence provided by Ridore’s expert witness, Michelle Kar-
shan, upon whom the IJ extensively relied. To the extent it
cited any facts, the BIA relied on In re J-E- and DHS’s “as-
sert[ions] on appeal.” The net effect of the BIA’s approach,
therefore, was to apply an overall de novo review, the very
approach the Third Circuit rejected in Kaplun. See 602 F.3d
at 271-72. The BIA’s flawed approach impeaches its conclu-
sions on several key issues.
1. Whether the Haitian government was acting with
specific intent to torture criminal deportees
The IJ concluded that “the [Haitian] government, as a pol-
icy, wishes to have the prison population subjected to tor-
ture.” In reaching this conclusion, he made several findings
about the current (2005) state of prison conditions relating to
lack of food, water and medical treatment, prevalence of dis-
ease and abusive guards — aspects of Haiti’s prisons that the
BIA in In re J-E- had already agreed were deplorable and
intolerable at the level they existed in 2000. In evaluating
CAT claims, “we must assess the conditions as they currently
exist.” Villegas, 523 F.3d at 989. The IJ supported his find-
ings about the decline from 2000 conditions with the most
recent (2004) State Department Country Report, and Kar-
11998 RIDORE v. HOLDER
shan’s expert opinion. For example, he noted that Karshan’s
report found:
[C]onditions in Haitian prisons have declined so
much . . . that prison conditions have now become
death warrants for those interned in them. She
note[d] that potable water is virtually unavailable to
the individuals. Food, unless provided by the fami-
lies, is very meager. Furthermore, the prisoners
themselves have a hierarchy which controls what lit-
tle food is made available. Therefore, without money
as well, these individuals who are interned often
have difficulty securing food for their sustenance.
[Karshan] also noted that . . . medical facilities in
these prisons [are] virtually nonexistent. Considering
the conditions of these prisons, it is not uncommon
for the prisoners to contract various diseases as out-
lined in the Country Reports. She note[d] that tuber-
culosis is on the rise in these facilities.
Based on this and other hearing testimony and documents,
the IJ found that “the conditions are so deplorable where dis-
ease is so rampant that these individuals detained in these
prisons will have to suffer some long term problems that . . .
can only be described as acts of torture.”2 “[T]he fact that they
allow beriberi and tuberculosis to run rampant through the
prison population, cannot be solely attributable to being
unable to change those conditions. Clearly, the fact that they
do not maintain proper medical facilities in those institutions
can only be attributable to their willingness to use the jails to
harm the inmates so that they will never be a threat to the
population again.”
[3] The BIA summarily rejected (or ignored) these find-
ings with the oblique statement that “while we acknowledge
2
The IJ was careful to base his finding of torture on “severe suffering”
rather than “severe pain.”
RIDORE v. HOLDER 11999
that prison conditions in Haiti appear to have deteriorated
since we rendered our decision in [In re] J-E-, supra, that
does not undermine the rationale of our decision.” This short
shrift approach is error. The BIA cannot, under a clear error
standard of review, override or disregard evidence in the
record and substitute its own version of reality. See Kaplun,
602 F.3d at 271-73 & n.9. This is particularly so when the
BIA’s justifications for rejecting a finding of torture in In re
J-E- turned on the respondent’s failure to meet his burden to
produce evidence to support a finding of torture sanctioned by
the Haitian government. See In re J-E-, 23 I. & N. Dec. at
303. The IJ found that the evidence Ridore produced, both as
to worsened prison conditions and the Haitian government’s
complicity in creating those conditions, was sufficient to dis-
tinguish his case from In re J-E-, and the BIA was obligated
to explain why the IJ clearly erred in so finding.
For instance, in addressing the IJ’s findings regarding the
government’s hiring of likely abusive prison officials, the
BIA tersely concluded that “the Immigration Judge’s leap,
from noting that persons accused of committing human rights
abuses have been placed in charge of some of Haiti’s prisons,
to his conclusion that the government, therefore, put those
people in charge because it wishes to have the prison popula-
tion subjected to torture [is] illogical.” Such a conclusory pro-
nouncement does not constitute clear error review. If it is true
that the Haitian government has a policy of placing accused
human rights violators in charge of prisoners, as the IJ found
it does, then there is nothing illogical in inferring the govern-
ment intends to put those prisoners at risk of cruel, abusive
treatment that would qualify as “severe suffering” or “torture”
— as the IJ found.3 If the BIA found clear error in the IJ’s evi-
dentiary basis for his finding, it surely did not reveal what that
3
The BIA did not appear to dispute the IJ’s factual predicate that “per-
sons accused of committing human rights abuses have been placed in
charge of some of Haiti’s prisons.”
12000 RIDORE v. HOLDER
error was. Instead, it appears to have relied simply on its own
interpretation of the facts, which is not clear error review.
2. Whether Haiti’s detention policy is a lawful sanction
[4] “Torture does not include pain or suffering arising only
from, inherent in or incidental to lawful sanctions. Lawful
sanctions include judicially imposed sanctions and other
enforcement actions authorized by law . . . but do not include
sanctions that defeat the object and purpose of the Convention
Against Torture to prohibit torture.” 8 C.F.R. § 1208.18(a)(3).
The IJ decided that, because “[t]he Haitian constitution makes
it unlawful to detain persons not involved in criminal activi-
ty,” “the Haitian government’s policy of indefinite detention
of aliens not being charged with a crime in Haiti can[not] con-
stitute legal sanctions.” Explaining this conclusion, the IJ
cited the declining “deplorable” conditions discussed above
and the minor nature of Ridore’s crimes.4 Specifically, the IJ
found Ridore’s theft convictions to have involved minor
offenses, and explained at some length why they could not
justify “long term incarceration” under such life-threatening
conditions as an appropriate, lawful sanction. Without dis-
cussing these findings and analysis, the BIA simply relied on
its “contrary result” in In re J-E- that held that “Haiti’s deten-
tion policy does appear to be a lawful sanction designed to
protect the populace from criminal acts committed by Hai-
tians who are forced to return to the country after having been
convicted of crimes abroad.” It said nothing about the IJ’s
analysis of Ridore’s minor criminal record and why prolonged
imprisonment of Ridore under conditions amounting to tor-
ture would not be a lawful sanction.
4
It is not clear whether the IJ’s reference to the Haiti constitution, which
existed at the time of the BIA’s decision in In re J-E-, was an independent
ground for his rejection of a legal sanction, or simply part of his reasoning
why Ridore’s indefinite detention for his minor offenses could not, consis-
tent with the constitution, be a legal sanction. Again, we do not know how
the BIA understood the reference.
RIDORE v. HOLDER 12001
Moreover, it is notable that In re J-E- used the term “indefi-
nite detention” in reference to a procedure whereby, pending
determination of a release date by a commission that meets
irregularly, “detainees may be held for weeks in police hold-
ing cells before they are released.” In re J-E-, 23 I. & N. Dec.
at 293, 300-01 (emphasis added). Previously the processing
took no more than a week. Id. at 300. In this case, the IJ found
that Ridore risks detention of a much greater duration, well
beyond some “weeks.” The IJ explained that Ridore “is facing
a long time imprisonment” because of his lack of family sup-
port in Haiti, such that Ridore will “very likely” suffer pro-
longed exposure to the life-threatening prison conditions that
constitute “torture.” Here, too, the BIA ignored this signifi-
cant factual distinction between Ridore’s “indefinite deten-
tion” and that involved in In re J-E-, a distinction that further
undercuts the BIA’s rationale in that case for finding Haiti’s
prison policy to be a lawful sanction.
3. Whether Ridore is likely to be subject to torture
A petitioner is eligible for CAT protection only when he
can establish by a preponderance of the objective evidence
that “it is more likely than not that he or she will be subject
to torture upon removal.” In re J-E-, 23 I. & N. Dec. at 302.
The BIA said, “[W]hile we acknowledge that the record
reflects isolated acts of torture in Haiti’s prisons, as we noted
in [In re] J-E-, supra, such evidence is insufficient to establish
that it is more likely than not that this particular respondent
will be tortured.” Once again, this misapprehends and thus
misstates the totality of the IJ’s findings and conclusions. The
IJ did not find that Ridore was likely to be tortured just
because there were “acts of torture in Haiti’s prisons.”
Rather, as we have explained above, he found based on
Karshan’s report that Ridore was likely to be tortured
because, unlike the respondent in In re J-E-, Ridore did not
have family members in Haiti and would therefore face a very
prolonged period of detention under the life-threatening con-
12002 RIDORE v. HOLDER
ditions that make such imprisonment almost “a death war-
rant.” The IJ based his factual findings on the evidentiary
record, particularly Karshan’s expert report and testimony
regarding “the conditions in Haiti for deported criminal
aliens. She note[d] that upon their arrival in Haiti, criminal
deportees are immediately turned over to the police authori-
ties who intern these individuals in prisons. They are held in
prisons for long periods of time while their cases are
reviewed. She note[d] that these individuals are not released
except to family members who often have to agree that they
will be imprisoned should they not make the deportees avail-
able to the police when requested.”
The IJ credited Karshan’s opinion that “if [Ridore] was
returned back to his country [he] could expect a long deten-
tion in one of the various prisons scattered throughout Haiti.
Because he has no family in that country, the likelihood of
him being released would be virtually nonexistent. Because of
the conditions in these prisons, they would for [Ridore] be life
threatening either from disease or malnutrition, as well as pos-
sibly the routine brutality of those institutions.” Accordingly,
the IJ found that “clearly [Ridore] upon his return back to
Haiti will be turned over to the Haitian authorities who will
immediately intern him in one of their prison facilities where
he will be held indefinitely while the authorities determine
what should be done with him.” The IJ found that, unlike the
respondent in In re J-E-, Ridore “has no family in Haiti who
can arrange with the authorities to have [him] released into
their custody.” The BIA did not address these findings.
[5] To summarize, throughout its CAT ruling the BIA
failed to grapple with the evidentiary record in this case and
to specifically address any clear errors the IJ made in his fac-
tual findings based on that evidence — evidence showing that
both Haiti’s current prison conditions and Ridore’s personal
circumstances are different from the record that prompted the
BIA’s ruling in In re J-E-. The BIA in In re J-E- faulted the
respondent for not carrying his burden of proof. See In re J-
RIDORE v. HOLDER 12003
E-, 23 I. & N. Dec. at 303. Ridore, on the other hand, pro-
duced current documentary and expert evidence to show con-
ditions have worsened and Ridore is at risk of torture. The IJ
credited that evidence and issued a detailed and reasoned
analysis of the facts existing in 2005 — four years later than
In re J-E-. He found, on these facts, Ridore’s case to be mate-
rially distinguishable.
[6] Rather than address the IJ’s fact-based determinations,
the BIA simply invoked statements from In re J-E- as if they
were still factually correct and ignored the IJ’s findings. That
is not clear error review. It is not even apparent it would suf-
fice as adequate de novo review. In any event, 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. See Rodri-
guez, 683 F.3d at 1177 (“If the BIA concludes that it cannot
properly review the IJ’s decision without further factual
development of the record, then the Board must remand the
case to the IJ so that he may make the requisite factual find-
ings.”). The BIA did neither here, so we are compelled to
grant Ridore’s petition and remand to the BIA to reconsider
the IJ’s decision granting CAT relief, applying the clear error
standard of review.
II. Cancellation of Removal
The Attorney General may cancel removal in the case of an
alien who is inadmissible or deportable if the alien “(1) has
been an alien lawfully admitted for permanent residence for
not less than 5 years, (2) has resided in the United States con-
tinuously for 7 years after having been admitted in any status,
and (3) has not been convicted of any aggravated felony.” 8
U.S.C. § 1229b(a). Even when an alien meets these eligibility
requirements, however, he or she must establish that relief is
warranted as a matter of discretion. See In re C-V-T-, 22 I. &
N. Dec. 7, 10 (BIA 1998). In exercising discretion, the IJ must
consider “the record as a whole,” and “balance the adverse
12004 RIDORE v. HOLDER
factors evidencing the alien’s undesirability as a permanent
resident with the social and humane considerations presented
[on] his (or her) behalf to determine whether the granting of
. . . relief appears in the best interest of this country.” Id. at
11 (internal quotation marks omitted).5 The IJ found that
Ridore had established the statutory prerequisites and, after
balancing the favorable and negative considerations, con-
cluded that he was entitled to cancellation of removal. On
DHS’s appeal, the BIA also reversed this ruling.
[7] As noted previously, although the BIA must review the
IJ’s factual findings under a clearly erroneous standard, see 8
C.F.R. § 1003.1(d)(3)(i), it “may review questions of law, dis-
cretion, and judgment . . . de novo,” id. § 1003.1(d)(3)(ii)
(emphasis added). Here, the BIA held that “when balancing
the social and humane considerations presented in [Ridore’s]
favor against the adverse factors evidencing his undesirability
as a permanent resident, the Immigration Judge gave dispro-
portionate weight to the evidence of potential hardship to
[Ridore] in Haiti as a criminal deportee.” The BIA reasoned
that “[c]arried to its logical conclusion, the Immigration
Judge’s analysis appears to suggest that any criminal alien
from Haiti who is otherwise eligible to apply for cancellation
of removal . . . would automatically be entitled to such relief.
. . . Such a conclusion cannot stand.” The BIA was “not per-
5
“[F]avorable considerations include such factors as family ties within
the United States, residence of long duration in this country (particularly
when the inception of residence occurred at a young age), evidence of
hardship to the respondent and his family if deportation occurs, service in
this country’s armed forces, a history of employment, the existence of
property or business ties, evidence of value and service to the community,
proof of genuine rehabilitation if a criminal record exists, and other evi-
dence attesting to a respondent’s good character.” Id. Negative consider-
ations include “the nature and underlying circumstances of the grounds of
exclusion or deportation (now removal) that are at issue, the presence of
additional significant violations of this country’s immigration laws, the
existence of a criminal record and, if so, its nature, recency, and serious-
ness, and the presence of other evidence indicative of a respondent’s bad
character or undesirability as a permanent resident of this country.” Id.
RIDORE v. HOLDER 12005
suaded that [Ridore’s] negative equities in this case [we]re
outweighed by the positive equities in his favor,” and vacated
the IJ’s grant of cancellation of removal. Ridore argues that
here, too, the BIA erroneously reviewed the IJ’s factual find-
ings de novo and engaged in its own factfinding. As explained
below, we hold that for the most part, the BIA gave proper
deference to the IJ’s factual findings. However, in light of our
remand of Ridore’s CAT protection claim and the BIA’s con-
clusion that the IJ gave “disproportionate weight” to Ridore’s
“potential hardship” in Haiti, we find it appropriate to vacate
the BIA’s ruling and remand for reconsideration of cancella-
tion of removal as part of its reconsideration of CAT relief.
To limit the scope of this part of our remand, we shall address
Ridore’s challenges to the BIA’s ruling on cancellation of
removal.
Ridore points to the BIA’s articulation of the positive and
negative equities, asserting that the BIA’s list of equities dif-
fered from those set forth by the IJ, and the BIA therefore
“overturn[ed] the IJ’s findings and enter[ed] its own findings
of fact.” We disagree. Starting with the positive equities,
Ridore argues that the BIA erred by failing to explicitly dis-
cuss two positive equities the IJ identified. First is the hard-
ship that Ridore’s removal would cause his father. The IJ,
however, made no such finding, but rather the opposite:
The respondent in this case has had a life of being
transient and having little or no contact with his fam-
ily. Clearly, his father will not suffer any physical
hardships as a result of the respondent’s removal
from the United States. The respondent’s father does
not rely on the respondent for financial help, let
alone any personal assistance that the respondent
gives the respondent’s father. This is based on the
fact that he has been separated from his family since
approximately 1994.
Second, Ridore argues that the BIA did not discuss the trauma
he experienced upon finding the bodies of his brutally mur-
12006 RIDORE v. HOLDER
dered mother and grandmother, an experience the IJ believed
led to “a majority” of Ridore’s problems, particularly his
becoming an alcoholic. The IJ, however, did not find this to
be so much a positive equity but more a mitigating one that
ultimately did not justify Ridore’s criminal behavior. Rather,
he found that Ridore’s criminal history reflected “an individ-
ual who had little or no concern for the laws of this country,”
and whose alcoholism reduced the probability that Ridore
would recover from his addiction and “turn [his] life around”
to become a contributing member of society.
Ridore also contends that the BIA improperly relied on four
negative equities the IJ did not find. These contentions are
plainly contrary to the record. First, the BIA’s statement that
he had a “spotty” employment history echoes the IJ’s descrip-
tion of Ridore’s work history “in the last few years” as at best
“very spotty, going from one job to another.” Second, the
BIA’s statement that Ridore “has no history of service in this
country’s armed forces” repeats the IJ’s finding that “respon-
dent cannot show any military service.” Third, the BIA did
not, as Ridore contends, find “as if it were reviewing the case
for the first time” that he does not “have property or business
ties” in the United States. In fact, the IJ found that Ridore had
“little or no community ties,” and his descriptions of Ridore’s
transient lifestyle and spotty work history directly support the
BIA’s statement. Finally, the BIA’s statement that there was
“no proof of genuine rehabilitation in the record evidence that
the Immigration Judge relied on” is accurate. Ridore himself
testified that he “had never received treatment” for his use of
drugs and alcohol. The IJ also remarked, “One wonders how
often a person needs to be convicted of drunk driving before
one should understand that he has an alcohol problem and do
something about it.”
We therefore reject Ridore’s arguments that the BIA
reviewed the IJ’s findings on positive and negative equities de
novo or engaged in its own factfinding. The BIA properly
deferred to the IJ’s factual findings with respect to the equities
RIDORE v. HOLDER 12007
Ridore challenges, citing such findings and the record as it
recited each of Ridore’s criminal convictions, his immigration
history and his family background. Upon its weighing of these
equities, the BIA made the discretionary judgment that these
facts did not warrant the grant of cancellation of removal,
holding that “the Immigration Judge gave disproportionate
weight to the evidence of potential hardship to [Ridore] in
Haiti as a criminal deportee,” when comparing such evidence
to the strong negative equities.
[8] Such review is largely appropriate. See Matter of A-S-
B-, 24 I. & N. Dec. 493, 498 (BIA 2008) (the BIA did not “vi-
olate[ ] the prohibition against fact-finding on appeal” where
it “relied on the predicate facts found by the Immigration
Judge and did not evaluate any ‘new’ evidence submitted on
appeal”), abrogated on other grounds by Huang v. Attorney
Gen., 620 F.3d 372 (3d Cir. 2010). However, as explained in
our discussion of CAT relief, the BIA failed to give proper
deference to the IJ’s factual findings regarding conditions in
Haiti. Those findings constitute “evidence of potential hard-
ship to [Ridore] in Haiti as a criminal deportee” — the very
evidence the BIA found insufficient to outweigh the negative
equities. Because the BIA failed to credit the IJ’s findings
supporting his conclusion that Ridore has a likely risk of
being tortured in Haitian prisons, and will be revisiting that
issue on remand, the BIA will necessarily have to reconsider
whether the IJ “gave disproportionate weight to the evidence
of potential hardship to [Ridore] in Haiti as a criminal depor-
tee.” Accordingly, we vacate and remand the BIA’s ruling on
cancellation of removal so it may reconsider that ruling in tan-
dem with its clear error review of Ridore’s entitlement to
CAT relief.
CONCLUSION
We grant Ridore’s petition for review. We remand to the
BIA to review the IJ’s CAT protection findings for clear
12008 RIDORE v. HOLDER
error, and to reweigh the cancellation of removal equities
accordingly.
PETITION FOR REVIEW GRANTED AND
REMANDED.