Rufino A. Estrada-Martinez v. Loretta E. Lynch

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 15-1139
RUFINO ANTONIO ESTRADA-MARTINEZ,
Petitioner,
v.
LORETTA E. LYNCH, ATTORNEY GENERAL OF THE UNITED
STATES,
Respondent.
____________________
Petition for Review of an Order of
the Board of Immigration Appeals.
No. A073-223-323
____________________
ARGUED SEPTEMBER 24, 2015 — DECIDED DECEMBER 31, 2015
Before MANION, ROVNER, and HAMILTON, Circuit Judges.
HAMILTON, Circuit Judge. Petitioner Rufino Antonio Es-
trada-Martinez faces removal to Honduras, a country that he
fled in 1994 after police there detained and tortured him. An
immigration judge granted Estrada relief from removal,
finding that he will more likely than not face torture if he is
removed to Honduras. The Board of Immigration Appeals
disagreed regarding the likelihood that Estrada will be tor-
2 No. 15-1139
tured, so it reversed the judge’s grant of relief. Estrada has
petitioned for review. He claims both eligibility for “with-
holding of removal” under the Immigration and Nationality
Act (“the Act”) and the United Nations Convention Against
Torture (“the Convention”) and eligibility for “deferral of
removal” under only the Convention.
Estrada is not eligible for withholding of removal be-
cause he was convicted in an Illinois state court of statutory
rape in 1996, and the Board has characterized his conviction
as “particularly serious.” Committing a crime that the Attor-
ney General deems “particularly serious” bars withholding
of removal under the Act and the Convention. We do not
have jurisdiction to review that discretionary judgment un-
less a petitioner presents a legal or constitutional question,
and Estrada’s attempt to frame his challenge to the “particu-
larly serious crime” determination as a legal issue is not per-
suasive.
Estrada may well be eligible, however, for deferral of re-
moval under the Convention. As noted, the immigration
judge found it more likely than not that Estrada will be tor-
tured if he is removed to Honduras. The Board was required
to review that factual finding only for clear error, not de novo.
8 C.F.R. § 1003.1(d)(3)(i); Matter of Z-Z-O-, 26 I. & N. Dec.
586, 590 (BIA 2015). In this case the Board failed to apply the
clear error standard of review, so we reverse the Board with
respect to Estrada’s request for deferral of removal. We re-
mand for reconsideration of the immigration judge’s deci-
sion under the correct standard of review.
No. 15-1139 3
I. The Legal Framework
A brief explanation of the relevant statutes and regula-
tions will be helpful before we lay out the facts of Estrada’s
case. Estrada seeks relief from removal under three provi-
sions of law: (1) withholding of removal under the Act,
8 U.S.C. § 1231(b)(3)(A); (2) withholding of removal under
the Convention, 8 C.F.R. § 1208.16(c); and (3) deferral of re-
moval under the Convention, 8 C.F.R. § 1208.17(a).
Commission of a crime that the Attorney General finds to
be “particularly serious” bars withholding of removal under
both the Act and the Convention. 8 U.S.C. § 1231(b)(3)(B)(ii);
8 C.F.R. § 1208.16(d)(2). Aggravated felonies punished by at
least five years of imprisonment are automatically “particu-
larly serious.” The Attorney General also has authority to
determine that other criminal convictions are “particularly
serious.” 8 U.S.C. § 1231(b)(3)(B). In finding that a crime is
“particularly serious,” immigration authorities may examine
“the nature of the conviction, the type of sentence imposed,
and the circumstances and underlying facts of the convic-
tion.” In re N-A-M-, 24 I. & N. Dec. 336, 342 (BIA 2007). In
some cases, however, the Board has instead “focused exclu-
sively on the elements of the offense, i.e., the nature of the
crime.” Id.
Even where an unauthorized immigrant has committed a
“particularly serious crime,” however, deferral of removal
under the Convention remains available if he will “more
likely than not” be tortured if removed to the particular
country. 8 C.F.R. §§ 1208.16(c)(4) & 1208.17(a), In making this
determination, immigration authorities must consider all
relevant evidence including: (1) “Evidence of past torture
inflicted upon the applicant;” (2) “Evidence that the appli-
4 No. 15-1139
cant could relocate to a part of the country of removal where
he or she is not likely to be tortured;” (3) “Evidence of gross,
flagrant or mass violations of human rights within the coun-
try of removal,” and (4) “Other relevant information regard-
ing conditions in the country of removal.” Id.,
§§ 1208.16(c)(3) & 1208.17(a).
II. Factual Background
In 1993, Estrada led a peasant land takeover in Hondu-
ras. The land that he and his comrades occupied belonged to
a retired military colonel, Avilio Martinez. Honduran police
arrested Estrada and thirteen of his comrades, holding Es-
trada for two months. During that time, Estrada was tor-
tured. His jailers beat him severely, sometimes to the point of
unconsciousness. They suffocated him by putting a bag over
his head, pushed his head under water to simulate drown-
ing, subjected him to electric shocks, and threatened the lives
of his family, including his two young children.
Shortly after his release from police detention and tor-
ture, a friend warned Estrada about a suspicious vehicle near
Estrada’s home, and his home was ransacked while he was
away. Fearing for his safety, Estrada at first relocated within
Honduras but then fled to Mexico and later to the United
States. The United States granted him asylum in 1995.
Estrada settled in Chicago. He initially found work at a
window and door company, and since 2005 he has worked
as a flooring installer. He received services, including psy-
chological care and help transitioning to life in the United
States, from the Heartland Alliance, an organization dedicat-
ed to helping individuals recovering from torture.
No. 15-1139 5
In 1996, however, Estrada was charged with statutory
rape for sexual acts with a sixteen-year-old girl with whom
he worked at a restaurant. He was thirty-three years old at
the time, and their relationship continued over a period of
weeks or months. On the advice of his attorney, Estrada pled
guilty. He was unaware of the potential immigration conse-
quences of his plea. The judge sentenced Estrada to only
four years of probation and also required him to register as a
sex offender for ten years. Estrada successfully completed
this sentence.
In December 2006, however, Estrada was ordered re-
moved from the United States due to his conviction. Upon
his arrival in Honduras in 2007, police at the airport detained
him, beat him, found some paperwork referring to his con-
viction, and threatened to create a file on him if he did not
pay them. Estrada paid the extortion, and the police freed
him. He spent a week in the city where his parents lived,
then returned illegally to the United States because he con-
tinued to fear for his safety in Honduras.
Estrada has not heard directly from the retired Colonel
Martinez since leaving Honduras in 1994, but in 2006 he re-
ceived a letter from his father telling him that Martinez had
continued to make threats against him and would kill him if
he returned to Honduras. A 2014 letter from one of Estrada’s
comrades in the land invasion also reported that Martinez
was still looking for Estrada. Estrada’s wife and children re-
mained in Honduras safely for three or four years after Es-
trada fled, but they have since come to the United States. His
parents remain in Honduras. Estrada’s comrades in the land
invasion continue to farm the land they invaded, apparently
without trouble. Estrada believes that if he returns to Hon-
6 No. 15-1139
duras he will be specially targeted because he was the leader
of the land invasion.
In 2013, U.S. immigration agents arrested Estrada. The
government reinstated his earlier order of removal, but Es-
trada expressed a fear that he will be tortured if he is re-
moved to Honduras. These proceedings for withholding of
removal under the Act and the Convention and deferral of
removal under the Convention followed.
In 2014, an immigration judge granted Estrada relief
from removal. She held that Estrada’s statutory rape convic-
tion was not “particularly serious,” citing his lenient sen-
tence and his testimony that he believed his victim was
eighteen years old. The judge also found that Estrada was
eligible for withholding of removal under the Act and the
Convention because he established that it is more likely than
not that he will be tortured if he is removed to Honduras.
The judge credited Estrada’s testimony regarding his treat-
ment in Honduras. She relied on his past torture, his contin-
ued fear of arrest and torture after he relocated within Hon-
duras in 1993 and 1994, the 2006 letter indicating that Mar-
tinez had made continued threats against Estrada, Martinez’s
continuing connections to the Honduran police and military,
and Estrada’s 2007 arrest, beating, and extortion at the air-
port in Honduras.
The judge also referred to U.S. State Department and
United Nations High Commissioner for Refugees reports on
political violence in Honduras.1 She noted that Honduras
1 The record contains Human Rights Watch reports on Honduras
that are marked with the High Commissioner’s logo but are not official
High Commissioner reports. The record does not appear to contain offi-
No. 15-1139 7
continues to suffer from violence surrounding peasant land
disputes. These disputes can involve detention, torture, and
even killing of peasant leaders and human rights activists.
The police are sometimes involved in or complicit with this
violence. Police detainees in Honduras are sometimes tor-
tured and denied due process of law.
The Board of Immigration Appeals reversed the judge’s
decision both as to the “particularly serious crime” determi-
nation and the likelihood that Estrada will be tortured if he
returned to Honduras. With regard to the likelihood of tor-
ture, the Board labeled only one of the judge’s specific factu-
al findings clearly erroneous: the finding that Estrada was
not free from ongoing torture after he relocated within Hon-
duras in 1993 and 1994 immediately after he was released
from custody and torture. After identifying this one instance
of clear factual error, the Board proceeded to reweigh the ev-
idence considered by the judge. The Board said it was “not
persuaded” that Estrada will likely be tortured if he is re-
moved to Honduras. It noted that Estrada has not received
any threats directly from Martinez since coming to the Unit-
ed States and that the other peasant activists appear to have
been able to remain on the land safely. With regard to the
“particularly serious crime” determination, the Board con-
sidered Estrada’s sentence and noted that statutory rape in-
volves an inherent risk of exploitation of minors. It consid-
ered but declined to give weight to Estrada’s victim’s age and
Estrada’s claimed mistake about her age. Estrada then filed
this petition for judicial review.
cial High Commissioner reports. It is possible that the immigration judge
confused these Human Rights Watch reports with official High Commis-
sioner reports.
8 No. 15-1139
III. Jurisdictional Limits
We must first address the jurisdictional limits of judicial
review under the Immigration and Nationality Act. First,
8 U.S.C. § 1252(a)(2)(B)(ii) prohibits courts of appeals from
reviewing decisions assigned by statute to the discretion of
the Attorney General or Secretary of Homeland Security. See
Kucana v. Holder, 558 U.S. 233, 237 (2010). Second,
§ 1252(a)(2)(C) prohibits review of “any final order of re-
moval” where removability is based on, among other things,
the commission of an aggravated felony. Notwithstanding
these provisions, however, § 1252(a)(2)(D) permits the re-
view of “constitutional claims or questions of law.” There is
some disagreement among the circuits on the effects of these
provisions, but we follow this circuit’s precedents.
It is settled in this circuit that § 1252(a)(2)(C) does not
prohibit our review of orders denying deferral of removal
under the Convention. Lenjinac v. Holder, 780 F.3d 852, 855
(7th Cir. 2015) (noting that “deferral of removal is not a final
remedy and therefore the [Act] does not bar judicial re-
view”); Issaq v. Holder, 617 F.3d 962, 970 (7th Cir. 2010) (stat-
ing that § 1252(a)(2)(C) does not bar our review of denial of
deferral of removal under the Convention). Deferral of re-
moval is “like an injunction” and “can be final enough to
permit judicial review, but at the same time not be the kind
of ‘final’ order covered by § 1252(a)(2)(C).” Wanjiru v. Holder,
705 F.3d 258, 264 (7th Cir. 2013); contra, e.g., Ortiz-Franco v.
Holder, 782 F.3d 81, 86–87 (2d Cir. 2015) (listing precedents),
petition for cert. filed (U.S. Sept. 23, 2015) (No. 15-362). Sec-
tion 1252(a)(2)(C) does not prohibit our review of the Board’s
decision to deny Estrada deferral of removal. And in any
No. 15-1139 9
case, § 1252(a)(2)(D) permits us to review constitutional
claims and questions of law.
Under our circuit’s precedent, however, § 1252(a)(2)(B)(ii)
prohibits our review of the Board’s discretionary determina-
tion that Estrada’s statutory rape conviction is a “particularly
serious crime,” except for legal and constitutional questions
allowed under § 1252(a)(2)(D). Tunis v. Gonzales, 447 F.3d 547,
549 (7th Cir. 2006); see also Petrov v. Gonzales, 464 F.3d 800,
802 (7th Cir. 2006) (citing Tunis for proposition that “classifi-
cation of a particular crime as ‘particularly serious’ often is
discretionary” and thus § 1252(a)(2)(B)(ii) bars review).2 As
noted above, the determination that a crime is “particularly
serious” bars withholding of removal under both the Act
and the Convention, but does not bar deferral of removal
under the Convention. 8 U.S.C. § 1231(b)(3)(B)(ii); 8 C.F.R.
§§ 1208.16(d)(2) & 1208.17(a).
The Attorney General argues that § 1252(a)(2)(C) rather
than § 1252(a)(2)(B)(ii) precludes our review of the “particu-
larly serious crime” determination. For this proposition, the
2 Other circuits disagree that § 1252(a)(2)(B)(ii) precludes review of
the Attorney General’s determination that a crime is “particularly seri-
ous.” See, e.g., Arbid v. Holder, 700 F.3d 379, 383–84 (9th Cir. 2012) (rec-
ognizing shift in Ninth Circuit precedent following Kucana); Berhane v.
Holder, 606 F.3d 819, 821–23 (6th Cir. 2010) (citing Kucana for proposition
that “[t]o ‘specify’ that a decision belongs to the Attorney General’s dis-
cretion requires more than a hint”); Nethagani v. Mukasey, 532 F.3d 150,
154–55 (2d Cir. 2008); Alaka v. Attorney Gen. of the U.S., 456 F.3d 88, 95 (3d
Cir. 2006), as amended Aug. 23, 2006 (“The jurisdiction-stripping lan-
guage of § 1252(a)(2)(B)(ii) applies not to all decisions the Attorney Gen-
eral is entitled to make, but to a narrower category of decisions where
Congress has taken the additional step to specify that the sole authority
for the action is in the Attorney General’s discretion.”).
10 No. 15-1139
Attorney General cites Petrov, 464 F.3d at 801–02, and Ali v.
Achim, 468 F.3d 462, 470 (7th Cir. 2006). Petrov, however, stat-
ed that a discretionary determination that a crime is “partic-
ularly serious” is unreviewable under § 1252(a)(2)(B)(ii), not
§ 1252(a)(2)(C). 464 F.3d at 802. Ali did not specify between
the two statutory provisions. 468 F.3d at 465, 468–70. The
plain language of § 1252(a)(2)(B)(ii), precluding review of
decisions left by statute to the “discretion” of the Attorney
General or Secretary of Homeland Security, fits with the de-
cision involved in characterizing a crime as “particularly se-
rious,” which we have previously said “often is discretion-
ary.” See Petrov, 464 F.3d at 802. Thus, absent a legal or con-
stitutional issue, § 1252(a)(2)(B)(ii) bars review of a discre-
tionary decision that a crime is “particularly serious.” 8
U.S.C. § 1252(a)(2)(B)(ii) & (a)(2)(D).
IV. This “Particularly Serious Crime” Determination
Estrada tries to avoid this jurisdictional bar to our review
of the Board’s “particularly serious crime” determination by
framing his challenge as a legal issue. He argues that the
Board made a legal error by adopting a categorical approach
to deciding whether his statutory rape conviction was “par-
ticularly serious.” According to Estrada, the Board failed to
consider individual aspects of his conviction. He claims the
Board “ignored” the fact that his victim was sixteen years
old, erroneously discounted his mistake of age, and failed to
recognize the significance of his sentence of probation rather
than prison time. Although Estrada presents cogent argu-
ments for reweighing the factors leading to the Board’s “par-
ticularly serious crime” determination, his attempt to frame
this argument as a legal error is not convincing. We lack ju-
risdiction to review the Board’s weighing of these factors.
No. 15-1139 11
There are different threads of Board authority regarding
how to determine that a crime is “particularly serious.” Es-
trada is right that Board precedent identifies certain factors
that may be considered in determining whether a crime is
“particularly serious.” In re N-A-M-, 24 I. & N. Dec. 336, 342
(BIA 2007); Matter of Frentescu, 18 I. & N. Dec. 244, 247 (BIA
1982), superseded in part by statute as recognized in In re N-
A-M-, 24 I. & N. Dec. at 339–40. The Board may use a case-
by-case approach in this analysis. Ali, 468 F.3d at 470 (hold-
ing that it is not legal error for the Board to apply a case-by-
case analysis). However, the Board has also sometimes “fo-
cused exclusively on the elements of the offense, i.e., the na-
ture of the crime.” In re N-A-M-, 24 I. & N. Dec. at 342–43.
Board precedent appears to support more than one method
for determining whether a crime is “particularly serious.”
Here, however, we do not agree with Estrada that the
Board’s opinion used a categorical approach. Rather than ig-
noring the age of the victim, the Board considered but de-
clined to give weight to the fact that the victim was sixteen
rather than a younger age. It said it did so because of the in-
herent risk of exploitation in a sexual relationship between
an adult and a minor. The Board also considered but de-
clined to give “great weight” to Estrada’s claim, which the
immigration judge credited, that he did not know his victim
was a minor, noting that Estrada chose not to pursue a mis-
take-of-age defense.3 The Board also considered the length of
3 The Board’s decision not to give weight to the absence of a mistake-
of-age defense was not legal error, despite Estrada’s choice to plead
guilty. Estrada could have refused to plead guilty and defended based
on mistake of age. Following this reasoning, the Board found that the
immigration judge clearly erred “to the extent” that the judge found that
Estrada’s claimed mistake of age did not conflict with the sentence he
12 No. 15-1139
Estrada’s probation and the requirement that he register as a
sex offender. The requirement that Estrada register as a sex
offender may have been mandatory under state law, but the
length of probation was certainly a discretionary decision by
the sentencing judge.
This analysis by the Board was not an application of the
categorical approach. The categorical approach would look
only at the “statute defining the crime of conviction,” not the
actual underlying conduct and circumstances. Moncrieffe v.
Holder, 569 U.S. —, —, 133 S. Ct. 1678, 1684 (2013), quoting
Gonzales v. Duenas-Alvarez, 549 U.S. 183, 186 (2007). Here, the
Board considered the punishment imposed on Estrada—the
length of the term of probation and the requirement that he
register as a sex offender. The Board also analyzed but did
not find persuasive the age of the victim and Estrada’s claim
of ignorance as to the victim’s age. Whether or not we would
agree in the first instance, it is clear that the Board’s analysis
engaged with factors beyond just the statute defining the
crime of conviction.
Thus, Estrada does not succeed in framing his argument
against the Board’s “particularly serious crime” determina-
tion as legal error. To the extent that Estrada also argues that
the Board’s decision incorrectly weighed the relevant factors,
those arguments are beyond our jurisdiction. 8 U.S.C.
§ 1252(a)(2)(B)(ii).
received. This logic is not compelling, but the question is beyond our
jurisdiction.
No. 15-1139 13
V. Deferral of Removal
Despite the determination that his statutory rape convic-
tion was “particularly serious,” Estrada may still be eligible
for deferral of removal under the Convention. 8 C.F.R.
§§ 1208.16(c)(4) & 1208.17(a). The decisive factual issue in
this analysis is whether it is “more likely than not” that the
unauthorized immigrant will be tortured if removed to the
country for which he or she seeks deferral of removal. Id.
The likelihood that Estrada will be tortured is a question
of fact. Rosiles-Camarena v. Holder, 735 F.3d 534, 538–39 (7th
Cir. 2013); Matter of Z-Z-O-, 26 I. & N. Dec. 586, 590 (BIA
2015). Here, the immigration judge found that it is more like-
ly than not that Estrada will be tortured if removed to Hon-
duras. The Board reversed, stating that it was “not persuad-
ed” of the likelihood of torture.
The Board’s approach to this factual issue reflects a legal
error. Under the Board’s own regulations, its review of an
immigration judge’s finding of fact is limited. The Board
must not find facts in the first instance; it must review the
judge’s determinations of fact only for clear error. 8 C.F.R.
§ 1003.1(d)(3)(i); Matter of Z-Z-O-, 26 I. & N. Dec. at 590.4
4 This limited review of fact-finding is distinct from that of other
agencies that have not circumscribed through regulation their review of
their administrative law judges’ fact-finding. For example, the Occupa-
tional Safety and Health Review Board is not bound by fact and credibil-
ity determinations made by an administrative law judge, although those
determinations are entitled to “some weight,” and there must be sub-
stantial evidence for rejecting them. Pratt & Whitney Aircraft v. Sec’y of
Labor, 649 F.2d 96, 105 (2d Cir. 1981); Allis-Chalmers Corp. v. Occupational
Safety & Health Review Comm’n, 542 F.2d 27, 30 (7th Cir. 1976). Similarly,
the National Labor Relations Board is not bound by an administrative
14 No. 15-1139
Whether the Board applied the proper standard of re-
view is a legal question. Rosiles-Camarena, 735 F.3d at 536. We
therefore review de novo whether the Board exceeded its
clear-error scope of review. See Lenjinac, 780 F.3d at 854; Vi-
tug v. Holder, 723 F.3d 1056, 1062–63 (9th Cir. 2013); Kabba v.
Mukasey, 530 F.3d 1239, 1245 (10th Cir. 2008) (reviewing de
novo as a question of law “whether the BIA applied the correct
legal standard, not simply whether it stated the correct legal
standard”) (emphasis in original).
The clear-error standard of review precludes the Board
from simply reweighing the evidence to reverse the immi-
gration judge. According to the agency commentary on the
final regulation mandating clear-error review, a judge’s
“factfinding may not be overturned simply because the
Board would have weighed the evidence differently or de-
cided the facts differently had it been the factfinder.” Board
of Immigration Appeals: Procedural Reforms to Improve
Case Management, 67 Fed. Reg. 54878-01, 54889 (Executive
Office for Immigration Review, Immigration and Naturaliza-
tion Service August 26, 2002), citing Anderson v. Bessemer
City, 470 U.S. 564, 573 (1985). Rather, “the BIA must find
that, on balance, the weight of the evidence so strongly mili-
tates against the IJ’s finding that the BIA ‘is left with the def-
inite and firm conviction that a mistake has been commit-
ted.’” Zhou Hua Zhu v. U.S. Attorney Gen., 703 F.3d 1303, 1315
(11th Cir. 2013), quoting 67 Fed. Reg. at 54889; see also An-
law judge’s factual findings, although those factual findings are entitled
to weight as part of the record, and the Board holds itself to a “clear pre-
ponderance of the evidence” standard in overturning a judge’s credibil-
ity determinations. Slusher v. NLRB, 432 F.3d 715, 727 & n.5 (7th Cir.
2005); In re Robert F. Kennedy Med. Ctr., 336 N.L.R.B. 765, 765 n.2 (2001).
No. 15-1139 15
derson, 470 U.S. at 573 (quoting the same standard). The
Board must explain how the immigration judge clearly
erred. Vitug, 723 F.3d at 1063.
Federal Rule of Civil Procedure 52(a)(6) helps to illumi-
nate the Board’s burden in overturning an immigration
judge’s factual findings. We have noted that Rule 52(a)(6)
“may have been the inspiration for § 1003.1(d)(3)(i),” the
regulation requiring the Board to review immigration judg-
es’ factual findings for clear error. See Rosiles-Camarena, 735
F.3d at 538. Indeed, the Board’s own commentary on the
regulation cited Anderson v. Bessemer City, the case providing
the definitive interpretation of Rule 52(a)(6)’s clear-error
standard. 67 Fed. Reg. at 54889–90, citing Anderson, 470 U.S.
at 573–75.5
5 Many circuits use the Anderson standard to evaluate whether the
Board adhered to its required clear-error standard of review. See, e.g.,
Zumel v. Lynch, 803 F.3d 463, 475–76 (9th Cir. 2015) (using the Anderson
standard in concluding that the Board exceeded its proper clear-error
scope of review of an immigration judge’s finding, noting that the Board
did not explain “why the [judge’s] determination … was ‘illogical or im-
plausible, or without support in inferences that may be drawn from the
facts in the record’”), quoting Rodriguez v. Holder, 683 F.3d 1164, 1170 (9th
Cir. 2012); Zhou Hua Zhu, 703 F.3d at 1309 (stating that the “the Depart-
ment explicitly adopted the standard for clear error drawn from Su-
preme Court case law” in holding that the Board impermissibly failed to
apply a clear-error standard in reviewing an immigration judge’s find-
ings regarding the likelihood of an immigrant’s future persecution and
current country conditions); Alvarado de Rodriguez v. Holder, 585 F.3d 227,
235–36 (5th Cir. 2009) (citing Anderson in holding that Board impermissi-
bly failed to apply clear-error standard of review in overturning an im-
migration judge’s findings and credibility determinations regarding
whether an immigrant entered into a marriage in good faith); Kabba v.
Mukasey, 530 F.3d 1239, 1246 (10th Cir. 2008) (citing Anderson in holding
that the Board failed to apply the required clear-error standard in over-
16 No. 15-1139
Rule 52(a)(6) prohibits courts of appeals from setting
aside a district court’s factual findings unless they are clearly
erroneous. Under that standard, “Where there are two per-
missible views of the evidence, the factfinder’s choice be-
tween them cannot be clearly erroneous.” Anderson, 470 U.S.
at 574. A factual finding must be “illogical or implausible” or
lack “support in inferences that may be drawn from the facts
in the record” for an appellate court to overturn it on clear
error review. Id. at 577. When a fact-finder bases her finding
on a decision to credit a witness’s testimony, that finding
“can virtually never be clear error” as long as the testimony
is “coherent and facially plausible,” “not internally incon-
sistent,” and “not contradicted by extrinsic evidence.” Id. at
575.
Here, the Board exceeded the permissible scope of its re-
view. It did not explicitly find that the immigration judge’s
finding regarding the likelihood of torture was clearly erro-
neous. Instead, it reversed the immigration judge because it
was “not persuaded that the objective evidence establishes
that the applicant will likely be tortured in Honduras upon
his return.” We assume this would have been a sufficient
reason for reversal on review de novo, but it overstepped the
more limited bounds of clear-error review.
The Board identified only one debatable instance of
“clear error” in the immigration judge’s fact-finding, al-
though we will assume its validity for our purposes. The
turning an immigration judge’s credibility determination); Fen Yong Chen
v. Bureau of Citizenship & Immigration Servs., 470 F.3d 509, 514–15 (2d Cir.
2006) (citing Anderson standard in holding that the Board failed to apply
the required clear-error standard in rejecting an immigration judge’s
credibility determination).
No. 15-1139 17
Board found that the judge’s determination that Estrada
“was not free from ongoing torture or harm after relocating
within Honduras” was “clearly erroneous.” This finding of
clear error appears to be correct to the extent the judge
found that Estrada was actually tortured in the time period
between fleeing his village in Honduras and escaping to the
United States. As best we can tell, Estrada was not actually
tortured during that period, though he had ample reason to
fear torture. After his release from the detention and torture,
he reported sightings of a suspicious vehicle near his home,
and his house was ransacked while he was away. In context,
it is at least arguable that the immigration judge was instead
referring to the threat of torture during the time Estrada re-
mained in Honduras rather than to actual torture, but for
our purposes we will assume that finding was clearly erro-
neous.
This one instance of arguable clear error does not by ex-
tension make the judge’s finding regarding Estrada’s likeli-
hood of torture also clearly erroneous. See Rosiles-Camarena,
735 F.3d at 538–39 (holding that the Board must review for
clear error even “ultimate” facts that are based on other sub-
sidiary facts). The judge based her likelihood-of-torture find-
ing on many undisputed subsidiary facts, such as Estrada’s
actual torture while in police custody, the 2006 threat against
Estrada, Martinez’s continued connections to the Honduran
security apparatus, and the reported country conditions in
Honduras. The (presumed) fact that Estrada was not again
tortured while in Honduras following his release does not
make the judge’s determination that Estrada will likely be
tortured if he is returned to Honduras implausible or illogi-
cal. See Anderson, 470 U.S. at 577, 579 (holding that a district
court’s fact-finding was not clearly erroneous because it did
18 No. 15-1139
not meet those criteria). The judge’s likelihood-of-torture de-
termination was still a “permissible” view of the evidence,
which the Board could not overturn simply because, “had it
been sitting as the trier of fact, it would have weighed the
evidence differently.” Id. at 574; see also Rosiles-Camarena,
735 F.3d at 538–39 (reversing and remanding a Board deci-
sion based on Board’s “independent appellate decision on
facts”) (emphasis in original).
The Board’s opinion demonstrates its impermissible re-
weighing of the evidence to reverse the judge’s finding re-
garding Estrada’s likelihood of torture. The judge found Es-
trada’s testimony regarding his experience in Honduras can-
did and credible. The Board did not dispute the judge’s find-
ings that Estrada was previously tortured at the direction of
Colonel Martinez for his leadership role in the peasant take-
over of Martinez’s land, nor that Martinez continues to have
close connections to the Honduran military and police. The
Board discounted these facts, however, stating that “the rel-
evant facts are not frozen at the time of the applicant’s depar-
ture from Honduras in 1994.” The Board conceded that Es-
trada’s fear of torture is consistent with the current condi-
tions in Honduras but said this was “not enough” to con-
vince it that Estrada is likely to face torture if he is removed.
Similarly, the Board acknowledged the threats made against
Estrada as recently as 2006, but it discounted these threats,
saying that Estrada has heard nothing directly from Mar-
tinez since he left Honduras and that his mistreatment by
police at the airport in 2007 had nothing to do with his lead-
ership in the land invasion. Finally, while the judge declined
to give weight to the fact that Estrada’s peasant comrades in
the land invasion remain on the land without trouble, the
Board chose to view this as significant.
No. 15-1139 19
The Board’s treatment of these factual matters shows that
the Board, rather than reviewing the judge’s findings of fact
for clear error as required by regulation, instead reweighed
the evidence to come to a conclusion different from the
judge’s. The Board did not conclude that the judge’s finding
regarding Estrada’s likelihood of torture was “illogical or
implausible” or lacked “support in inferences that can be
drawn from facts in the record.” See Anderson, 540 U.S. at
577; see also Zumel, 803 F.3d at 476 (concluding that the
Board exceeded its proper clear error scope of review of an
immigration judge’s finding because the Board did not ex-
plain “why the [judge’s] determination … was ‘illogical or
implausible, or without support in inferences that may be
drawn from the facts in the record’”). The Board also did not
find that Estrada’s testimony, which the judge credited and
upon which she in part based her finding, was incoherent,
facially implausible, internally inconsistent, or contradicted
by extrinsic evidence. See Anderson, 470 U.S. at 575. Thus, the
Board made a legal error by failing to apply the required
clear-error standard. See Rosiles-Camarena, 735 F.3d at 539.
VI. Disposition of the Petition
The question remains how to remedy the Board’s legal
error. Generally, if an agency commits legal error, we re-
mand the decision to the agency for proceedings under the
correct legal framework. E.g., Rosiles-Camarena, 735 F.3d at
539, citing Gonzales v. Thomas, 547 U.S. 183 (2006); Zhou Hua
Zhu, 703 F.3d at 1315. The agency is entitled to make factual
determinations and to have an opportunity to apply the law
to those facts. Gonzales, 547 U.S. at 186. Remand is also gen-
erally required when a question of law implicates an agen-
20 No. 15-1139
cy’s interpretation of the statute it enforces. Negusie v. Holder,
555 U.S. 511, 523 (2009).
Remand is not always necessary, however. Courts of ap-
peals have declined to remand when the facts are established
and the correct outcome is clear. For example, in Vitug, the
Ninth Circuit held that the Board failed to review the immi-
gration judge’s factual findings under the proper clear-error
standard of review. 723 F.3d at 1064. The Ninth Circuit di-
rected withholding of removal for the petitioner because “no
reasonable factfinder” could come to a different conclusion
based on the immigration judge’s uncontroverted findings.
Id. at 1065–66; see also Ghebremedhin v. Ashcroft, 392 F.3d 241,
243 (7th Cir. 2004) (court has ability to decide petition on
merits without remand if “the record evidence compels the
result that we have reached,” but case was remanded on
other grounds). In the majority of cases in which the Board
applied the incorrect standard of review, however, courts of
appeals remand for further consideration under the correct
standard of review. See, e.g., Rosiles-Camarena, 735 F.3d at
539; Ridore v. Holder, 696 F.3d 907, 919 (9th Cir. 2012).
The facts in this case are not in dispute. The immigration
judge and Board did not question the veracity of Estrada’s
evidence of his past torture, the 2006 threat against him,
Martinez’s continuing influence with Honduras’s security
apparatus, and the continuing conditions of violence against
leaders of peasant movements in Honduras. Honduran
peasant leaders continue to experience violence and human
rights abuses committed by police. Based on these undisput-
ed facts, the immigration judge concluded that Estrada will
more likely than not be tortured if he is removed to Hondu-
ras. That finding appears cogent and well supported by
No. 15-1139 21
credible evidence regarding both Estrada’s individual case
and more general conditions of violence in Honduras. We
nevertheless remand this case to the Board to apply clear er-
ror review. Unless the Board determines that the judge’s
finding regarding the likelihood of torture was clearly erro-
neous, Estrada is entitled to deferral of removal under the
Convention.
To sum up, we DISMISS for lack of jurisdiction Estrada’s
challenge to the Board’s decision that his statutory rape con-
viction was a “particularly serious crime.” We also find,
however, that, on the issue of deferral of removal under the
Convention Against Torture, the Board failed to apply the
correct standard of review to the immigration judge’s find-
ing that Estrada will likely face torture if he is removed to
Honduras. In that respect we GRANT Estrada’s petition and
REMAND his case to the Board of Immigration Appeals for
further proceedings consistent with this opinion.
22 No. 15-1139
MANION, Circuit Judge. I join the panel’s decisions to af-
firm the Board of Immigration Appeals, with this note. Im-
plicit in the Board’s statement that “the relevant facts are not
frozen at the time of [Estrada’s] departure from Honduras in
1994” is the fact that the Martinez family’s connections to the
police and military may not remain intact. The CAT allows
“deferral” of removal. Martinez was a retired colonel at least
22 years ago. That connection to the government, possibly
along with his sons’ police connections, appears necessary to
the claimed risk of torture. If Martinez is dead and his po-
lice-officer sons pose no problem, the CAT deferral should
end. CAT protection should not be speculative. To determine
whether the precise threat to Estrada still exists, the Board
may need to remand this case to the immigration judge.