Jose Guerra v. William Barr

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSE EDUARDO GUERRA, No. 18-71070
Petitioner,
Agency No.
v. A206-351-878
WILLIAM P. BARR, Attorney General,
Respondent. ORDER AND
AMENDED
OPINION
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted July 17, 2019
San Francisco, California
Filed March 3, 2020
Amended September 11, 2020
Before: Michael R. Murphy, * Richard A. Paez, and
Johnnie B. Rawlinson, Circuit Judges.
Order;
Opinion by Judge Paez
*
The Honorable Michael R. Murphy, United States Circuit Judge
for the U.S. Court of Appeals for the Tenth Circuit, sitting by
designation.
2 GUERRA V. BARR
SUMMARY **
Immigration
The panel filed (1) an order amending its opinion and
granting the government’s motion for clarification; and 2) an
amended opinion. In the amended opinion, the panel granted
a petition for review of the Board of Immigration Appeals’
reversal of an immigration judge’s grant of deferral of
removal under the Convention Against Torture, and
remanded, holding that the Board erred by conducting a de
novo review of the IJ’s factual findings, rather than
reviewing them for clear error, as required by 8 C.F.R.
§ 1003.1(d)(3)(i).
Petitioner, who suffers from a mental health condition,
argued that because he had no support system in Mexico, he
would likely become homeless and end up in the hands of
either Mexican law enforcement, or a Mexican mental health
institution, where he would more likely than not be tortured.
The IJ concluded that petitioner established a clear
probability of torture and granted CAT relief, but the Board
reversed.
The panel held that the Board erred by reviewing the IJ’s
factual findings de novo, rather than for clear error, as
required by 8 C.F.R. § 1003.1(d)(3)(i). Specifically, the
panel concluded that in reversing the IJ’s conclusion that
petitioner had established that Mexican officials would have
the specific intent to torture him, the Board erred by failing
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
GUERRA V. BARR 3
to address the IJ’s key factual findings on which she based
her conclusion, and by according more weight to country
conditions evidence which the IJ had considered and found
unpersuasive. The panel rejected the government’s
argument, relying on Villegas v. Mukasey, 523 F.3d 984 (9th
Cir. 2008), that evidence of primitive and abusive practices
on mental health patients categorically is insufficient to
support an inference of specific intent to inflict harm. The
panel also held that in providing an alternative reason why
harmful practices persist in Mexico mental health
institutions despite international condemnation, the Board
appeared to engage in impermissible factfinding in
concluding that lack of material resources and other
bureaucratic concerns provide plausible explanations for the
persistence of problems. Because the Board did not explain
why the IJ’s findings were illogical, implausible, or not
supported by permissible inferences from the record, the
panel held that it had no trouble concluding that the Board
failed to apply clear error review to the IJ’s finding of
specific intent.
Similarly, the panel held that the Board failed to engage
in clear error review in reversing the IJ’s finding that
petitioner established a clear probability that he would be
subjected to severe pain or suffering in criminal detention.
The panel concluded that the Board erred by failing to
address the IJ’s predicate factual findings, based on
petitioner’s specific circumstances, that led to the IJ’s
conclusions. The panel explained that while the Board may
disagree with the inferences the IJ drew, it cannot disregard
the IJ’s findings and substitute its own view of the facts.
Rather, it must either find clear error, explaining why; or, if
critical facts are missing, remand to the IJ.
4 GUERRA V. BARR
Lastly, the panel held that the Board’s analysis of the
likelihood of harm was also flawed because it analyzed the
likelihood of harm by Mexican police and officials in mental
health institutions separately, rather than considering “the
aggregate risk” that petitioner faces if removed.
The panel rejected petitioner’s request for a remand with
instructions to grant CAT relief, and instead remanded for
the Board to reconsider its decision applying the correct
standards.
COUNSEL
Teresa A. Reed Dippo (argued), Munger Tolles & Olson
LLP, San Francisco, California; Keren Zwick, National
Immigrant Justice Center, Chicago, Illinois; Elaine J.
Goldenberg, Munger Tolles & Olson LLP, Washington,
D.C.; Alison Pennington, Centro Legal de la Raza, Oakland,
California; for Petitioner.
Linda Y. Cheng (argued) and Madeline Henley, Trial
Attorneys; Greg D. Mack, Senior Litigation Counsel; Joseph
H. Hunt, Assistant Attorney General; Office of Immigration
Litigation, United States Department of Justice,
Washington, D.C.; for Respondent.
GUERRA V. BARR 5
ORDER
The opinion, filed on March 3, 2020, reported at
951 F.3d 1128, is amended as follows:
On page 8 of the slip opinion, replace <. . . the IJ’s
determination that it is more likely than not that Guerra faces
a clear probability of being tortured in criminal detention.>
with <. . . the IJ’s determination that it is more likely than
not that Guerra faces a clear probability of enduring severe
pain or suffering in criminal detention.>.
On page 10 of the slip opinion, replace
with .
On page 14 of the slip opinion, replace with .
On page 15 of the slip opinion, replace with .
On page 15 of the slip opinion, replace with .
On page 16 of the slip opinion, replace <. . . the IJ
inferred that Guerra would come into their custody and be
tortured as others have been in criminal detention.> with
<. . . the IJ inferred that Guerra would come into their
custody and endure severe pain or suffering as others have
in criminal detention.>.
On page 16 of the slip opinion, replace <. . . evidence
demonstrating that the mentally ill or intellectually disabled
are specifically targeted for torture . . . .> with <. . . evidence
demonstrating that the mentally ill or intellectually disabled
are specifically targeted for the infliction of severe pain or
suffering . . . .>.
With these changes, the government’s motion for
clarification (Dkt. 63) is GRANTED. An amended opinion
is attached and filed concurrently.
OPINION
PAEZ, Circuit Judge:
Jose Eduardo Guerra (“Guerra”), a citizen and national
of Mexico, petitions for review of an adverse decision by the
Board of Immigration Appeals (“BIA”). At issue is Guerra’s
application for deferral of removal under the Convention
GUERRA V. BARR 7
Against Torture (“CAT”). An Immigration Judge (“IJ”)
granted Guerra’s application for deferral of removal under
CAT, but the BIA reversed. Because the BIA did not
properly review the IJ’s factual findings for clear error, as
required by 8 C.F.R. § 1003.1(d)(3)(i), we grant the petition
and remand for further proceedings.
I.
Guerra entered the United States without inspection
when he was eleven years old to escape severe child abuse,
neglect, and sexual abuse. After joining his father and
stepfamily in the United States, Guerra was placed in special
education classes, was diagnosed with a seizure disorder,
and started taking anti-seizure medication. Following high
school, and because he could not live on his own, Guerra was
placed in a private, single-family dwelling for mentally
disabled individuals in Bakersfield, California. In late June
2013, he was arrested for engaging in lewd and lascivious
acts with a boy in the home.
Guerra was found incompetent to stand trial and was
referred to a program for evaluation, psychiatric treatment,
and restoration of competence. In August 2014, he was
diagnosed with psychosis and began taking antipsychotic
medication while he underwent treatment to gain trial
competency. He was deemed competent to stand trial in
September 2015, shortly after which he pleaded guilty to one
count of violating California Penal Code § 288(a). The trial
court sentenced him to three years’ imprisonment. While
serving his sentence, Guerra started to exhibit
“bizarre/disruptive behavior” and to experience auditory
hallucinations. He was taken into immigration custody
following his incarceration at Wasco State Prison, where he
was served with an immigration warrant and a notice to
appear.
8 GUERRA V. BARR
The Department of Homeland Security (“DHS”) charged
Guerra with removability under 8 U.S.C. § 1182(a)(6)(A)(i)
(presence in the United States without admission or parole)
and 8 U.S.C. § 1182(a)(2)(A)(i)(I) (conviction of a crime
involving moral turpitude). At his first immigration court
hearing in June 2016, the IJ found, based on a preponderance
of evidence, that Guerra was incompetent to represent
himself and ordered appointment of a representative. 1
Guerra, through appointed counsel, applied for deferral
of removal under CAT. He argued that because he had no
support system in Mexico, he would likely become homeless
and end up in the hands of either Mexican law enforcement,
or a Mexican mental health institution. Under either
scenario, Guerra argued, it was more likely than not that he
would be tortured. In support of his application, Guerra
submitted a psychological evaluation and mental health
records; Mexican court records; letters from his family
describing his past abuse, lack of support in Mexico, and his
inability to work or care for himself; and multiple country
condition reports and news articles about widespread abuse
of individuals with mental illnesses in Mexican jails and
mental health facilities. Because Guerra had competency
issues and was seeking only deferral of removal under CAT,
1
While in immigration custody, Guerra was informed of his
membership in the class certified in Franco-Gonzalez v. Napolitano, No.
10-cv-2211, 2011 WL 11705815 (C.D. Cal. Nov. 21, 2011). Because a
qualified mental health provider determined that Guerra had a serious
mental disorder as defined in Franco-Gonzalez—in his case,
schizophrenia, developmental delay, and intellectual disorder
dementia—Guerra was entitled to a competency hearing and the
possibility of appointed counsel, see Franco-Gonzalez v. Holder, 2014
WL 5475097, at *8 (C.D. Cal. Oct. 29, 2014).
GUERRA V. BARR 9
the IJ granted Guerra’s motion for safeguards and waived his
testimony.
In August 2017, the IJ issued her decision granting
Guerra deferral of removal under CAT. The IJ concluded
that CAT protection was warranted because of Guerra’s
specific circumstances, which made it more likely than not
that he would be harmed by police or government officials
working in psychiatric institutions in Mexico. She also
relied on the documented conditions in Mexico regarding the
discrimination against people with disabilities and treatment
of those in criminal custody and psychiatric institutions that
qualifies as torture. The IJ also concluded that Guerra could
not safely and reasonably relocate to avoid torture by police
or government officials due to the widespread nature of the
violence.
DHS appealed the IJ’s grant of CAT deferral, which the
BIA sustained. The BIA disagreed with the IJ’s
determination that Guerra would be subject to torture in
either criminal detention or mental health institutions in
Mexico. Guerra timely petitioned for review of the BIA’s
vacatur of CAT deferral.
II.
We have jurisdiction to review final orders of removal
under 8 U.S.C. § 1252(a)(1) and to review CAT claims that
were denied on the merits. See Pechenkov v. Holder,
705 F.3d 444, 448 (9th Cir. 2012).
“Where the BIA conducts its own review of the evidence
and law, rather than adopting the IJ’s decision, our review is
limited to the BIA’s decision, except to the extent the IJ’s
opinion is expressly adopted.” Rodriguez v. Holder,
683 F.3d 1164, 1169 (9th Cir. 2012) (quotations omitted).
10 GUERRA V. BARR
We review factual findings for substantial evidence and legal
questions de novo. Ridore v. Holder, 696 F.3d 907, 911 (9th
Cir. 2012). “Whether the BIA has applied the correct
standard of review is a question of law.” Id.III.
Guerra challenges the BIA’s decision on two grounds,
both of which raise essentially the same issue—whether the
BIA applied the correct standard when reviewing the IJ’s
factual findings related to Guerra’s CAT deferral
application. “The governing regulations explicitly state that
the BIA shall not ‘engage in de novo review of findings of
fact determined by an immigration judge.’” Id. (quoting
8 C.F.R. § 1003.1(d)(3)(i)). Instead, “[f]acts determined by
the immigration judge, including findings as to the
credibility of testimony, shall be reviewed only to determine
whether the findings of the immigration judge are clearly
erroneous.” 8 C.F.R. § 1003.1(d)(3)(i). “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.” Ridore, 696 F.3d at 911 (quoting Rodriguez,
683 F.3d at 1170). “Further, the BIA may ‘not engage in
factfinding in the course of deciding appeals.’” Id. (quoting
8 C.F.R. § 1003.1(d)(3)(iv)).
Guerra argues that the BIA failed to apply clear error
review in two ways: when rejecting the IJ’s determination
that Mexican health care workers act with specific intent to
harm mental health patients, and when rejecting the IJ’s
determination that it is more likely than not that Guerra faces
a clear probability of enduring severe pain or suffering in
criminal detention. We agree with him on both grounds.
Moreover, we distinguish Guerra’s situation from that in
Villegas v. Mukasey, 523 F.3d 984 (9th Cir. 2008), for the
reasons discussed below.
GUERRA V. BARR 11
A.
The essence of Guerra’s CAT application is that he faces
a more than fifty percent chance of being tortured if removed
to Mexico because of his particular circumstances and the
treatment of similarly situated individuals in that country.
See 8 C.F.R. § 208.16(c)(2). In considering a CAT
application, the IJ and BIA must consider “all evidence
relevant to the possibility of future torture,” Cole v. Holder,
659 F.3d 762, 770 (9th Cir. 2011) (quoting 8 C.F.R.
§ 1208.16(c)(3)), and must “consider the aggregate risk that
[the applicant] would face,” id. at 775.
The implementing regulations define torture as “any act
by which severe pain or suffering, whether physical or
mental, is intentionally inflicted on a person for such
purposes as . . . punishing him or her . . . or for any reason
based on discrimination of any kind . . . [by] or with the
consent or acquiescence of a public official . . . .” 8 C.F.R.
§ 208.18(a)(1). “Government acquiescence does not require
actual knowledge or willful acceptance of torture; awareness
and willful blindness will suffice.” Aguilar-Ramos v.
Holder, 594 F.3d 701, 705–06 (9th Cir. 2010). A petitioner
must show, however, that “severe pain or suffering was
specifically intended—that is, that the actor intend the actual
consequences of his conduct, as distinguished from the act
that causes these consequences.” Villegas, 523 F.3d at 989.
As we have noted, the regulations “preclude [the BIA]
from reviewing an IJ’s factual findings de novo.” Zumel v.
Lynch, 803 F.3d 463, 475 (9th Cir. 2015). Under this
scheme, the BIA may only review the IJ’s factual findings to
determine whether they are clearly erroneous. Id. Clear
error review means that “the BIA may not make its own
findings or rely ‘on its own interpretation of the facts.’” Id.(citation omitted). Instead, the BIA may find an IJ’s factual
12 GUERRA V. BARR
finding to be clearly erroneous only “if it is ‘illogical or
implausible,’ or without ‘support in inferences that may be
drawn from the facts in the record.’” Rodriguez, 683 F.3d
at 1170 (quoting Anderson v. Bessemer City, 470 U.S. 564,
577 (1985)). 2 Importantly, the BIA may not reverse an IJ’s
finding “simply because it is convinced that it would have
decided the case differently.” Id. at 1171 (quoting Anderson,
470 U.S. at 573). “Where there are two permissible views
of the evidence, the [IJ]’s choice between them cannot be
clearly erroneous.” Anderson, 470 U.S. at 574.
The government defends the BIA’s decision in this case,
pointing out how the BIA stated it found clear error no fewer
than four times in the course of reviewing the IJ’s factual
findings. We reemphasize that “[w]e do not rely on the
[BIA]’s invocation of the clear error standard; rather, when
the issue is raised, our task is to determine whether the BIA
faithfully employed the clear error standard or engaged in
improper de novo review of the IJ’s factual findings.” Vitug
v. Holder, 723 F.3d 1056, 1063 (9th Cir. 2013) (quoting
Rodriguez, 683 F.3d at 1170) (alteration in Vitug).
B.
First, we consider the BIA’s rejection of the IJ’s finding
of specific intent to torture by Mexican officials in mental
health institutions. Whether government officials act with
specific intent to inflict severe pain or suffering is a question
of fact that is subject to clear error review. See Ridore,
696 F.3d at 916–17.
2
The Supreme Court’s decision in Anderson has guided our
understanding of the clear error standard. See Rodriguez, 683 F.3d
at 1171; see also United States v. Hinkson, 585 F.3d 1247, 1262 (9th Cir.
2009) (en banc).
GUERRA V. BARR 13
The IJ found that government officials would
intentionally inflict harm on Guerra for a proscribed
purpose. In reaching that conclusion, the IJ made predicate
factual findings, based on extensive record evidence
documenting that: (1) individuals like Guerra face
widespread systemic discrimination on the basis of their
disabilities; (2) the Mexican government does not enforce
laws that prohibit discrimination against those with
disabilities in employment, education, and in the provision
of services; (3) the Mexican criminal justice system
frequently denies persons with mental disabilities the right
to make their own legal decisions and frequently subjects
them to arbitrary detention during legal proceedings;
(4) individuals with disabilities are provided health care
services only within institutions, where they are segregated
from the rest of the community and have no right to make
basic daily decisions; and (5) employees of mental health
institutions carry out actions—including the use of
permanent physical restraints, physical and sexual abuse,
and heavy sedation to control the patients’ behavior—that
qualify as torture under CAT and sometimes cause death. 3
The BIA assumed without deciding that Guerra faces a
likelihood of being institutionalized in a Mexican mental
health institution. But it rejected the IJ’s finding of specific
3
As the IJ noted, Guerra submitted extensive documentation of
country conditions in Mexico. The IJ relied particularly on: the State
Department’s Mexico 2016 Human Rights Report; a 2013 report from
the United Nations Special Rapporteur on Torture that focused on
practices in health care settings; reports from an advocacy group,
Disability Rights International (“DRI”), documenting their findings in
Mexico; a New York Times article about DRI’s 2010 report; news articles
about difficulties faced by deportees, homeless individuals, and those
with mental illness in Mexico; and reports from Amnesty International,
Human Rights Watch, and other sources regarding torture in Mexico.
14 GUERRA V. BARR
intent, noting “there is insufficient record evidence from
which it is reasonable to conclude that health care workers
implement such [primitive and abusive] practices for the
specific purpose of inflicting harm on the patients.” Instead,
the BIA accorded more weight to country reports in the
record that the extreme measures were taken as a misguided
effort to prevent patients from harming themselves or others.
Citing Villegas, 523 F.3d at 989, and Chavarin v. Sessions,
690 F. App’x 924, 926 (9th Cir. 2017), the BIA also rejected
Guerra’s argument that specific intent could be inferred from
the fact that these practices continue to persist despite years
of condemnation from the international community,
attributing the persistence of these problems to “the
difficulties inherent in addressing a complex public policy
issue with insufficient material resources.” This was not
clear error review for multiple reasons.
First, “a ‘conclusory pronouncement’ that the IJ has
erred is insufficient[] . . . .” Zumel, 803 F.3d at 475 (quoting
Vitug, 723 F.3d at 1063). The BIA failed to “address
whether the IJ clearly erred in making the key factual
findings on which she based her conclusion regarding
[Mexican government officials’] intent,” id. at 476, such as
the continued patterns of discrimination against individuals
with disabilities, or the segregation of those individuals from
the general community. In fact, the BIA did not even
acknowledge these findings. “The BIA’s failure to evaluate
the ‘factual findings of the IJ that were key to the IJ’s
holding,’ indicates the BIA was not reviewing the IJ’s
determination for clear error.” Id. (quoting Vitug, 723 F.3d
at 1064).
The government defends the BIA’s rejection of the
finding of specific intent by Mexican officials to punish
patients by arguing that it lacked adequate record support.
GUERRA V. BARR 15
This is plainly belied by the IJ’s decision and the record. The
IJ cited various reports from the international advocacy
group, DRI, which describe the practices in the mental health
facilities as punishment and torture, and incorporate findings
by the United Nations Special Rapporteur on Torture that
treatment such as the use of prolonged restraints and forced
medication may constitute torture. 4
Second, the clear error standard does not allow the BIA
to reweigh the evidence when the IJ’s account of the
evidence is plausible. See Rodriguez, 683 F.3d at 1171
(discussing Anderson, 470 U.S. at 573–74). The IJ
acknowledged and rejected the alternative explanation that
mental health officials’ actions can be explained by gross
negligence and a misunderstanding of the nature of
psychiatric illness. On appeal, the BIA stated that it
“accord[ed] more weight to country reports in the record that
[the IJ] did not find persuasive.” But the BIA cannot reverse
the IJ’s factual finding “even though [it is] convinced that
had it been sitting as the trier of fact, it would have weighed
the evidence differently.” Anderson, 470 U.S. at 574.
The government appears to argue that evidence of
primitive and abusive practices on mental health patients
categorically is insufficient to support an inference of
specific intent to inflict harm, relying heavily on our decision
in Villegas. This overstates our prior holding. In Villegas,
the IJ denied CAT relief because he found that the petitioner
showed no evidence of specific intent to torture, and the BIA
affirmed that denial. 523 F.3d at 986–87. We agreed with
4
As an example, one DRI report found that “beatings were a
common form of punishment used by administrators” at a facility, and
“individuals who managed to escape were tracked down and forcibly
returned to the institution where they suffered further punishment.”
16 GUERRA V. BARR
the IJ that a petitioner must show specific intent for purposes
of CAT relief. Id. at 989. We were not compelled to reverse
the underlying factual findings because we found nothing in
the record that indicated specific intent where there was also
evidence of the Mexican government’s desire to improve
conditions. Id. at 987–89. In Guerra’s case, the IJ made a
factual finding on the basis of record evidence that there is
specific intent to inflict severe pain or suffering, so Villegas
has limited application. 5 Critically, the IJ found that Guerra
submitted sufficient evidence to show that he would be
harmed for a proscribed purpose and explicitly distinguished
this case from Villegas.
Third, in providing an alternative reason why these
practices persist in Mexico despite international
condemnation, the BIA appears to engage in impermissible
factfinding. See Brezilien v. Holder, 569 F.3d 403, 413 (9th
Cir. 2009) (“[T]he BIA may not engage in factfinding to
resolve an appeal . . . .”). While lack of material resources
and other bureaucratic concerns provide plausible
explanations for the persistence of problems in Mexican
mental health institutions, the IJ did not make such a finding.
Critically, the BIA did not explain why the IJ’s findings were
illogical, implausible, or not supported by permissible
inferences from the record. See Rodriguez, 683 F.3d at 1170.
Thus, we have no trouble concluding that the BIA failed to
apply clear error review to the IJ’s finding of specific intent.
5
For similar reasons, the government’s reliance on Chavarin, a non-
precedential memorandum, is also unpersuasive because the IJ in that
case denied CAT deferral and our holding was simply that substantial
evidence supported the IJ’s finding of no specific intent. See 690 F.
App’x at 926. Villegas and Chavarin do not support the BIA’s decision
in this case, where the IJ made different findings on the unique record
before her.
GUERRA V. BARR 17
C.
We next turn to the IJ’s finding that Guerra is likely to
endure severe pain or suffering in Mexico. What is likely to
happen to a petitioner if deported to a certain country is also
a question of fact that the BIA may reject only for clear error.
See Ridore, 696 F.3d at 915, 918–19.
In reaching her conclusion, the IJ made predicate factual
findings including: (1) Guerra’s “abnormal behavior” will
attract the attention of Mexican police; (2) Guerra will be
homeless because his family cannot support him from the
United States; (3) police target for arrest those who are
homeless and have mental health conditions; and
(4) Mexican police nationwide torture those whom they
arrest and detain. In addition to citing the country conditions
described above, see supra at 13 n.3, the IJ also relied on
family letters and the psychological evaluation in the record.
The BIA assumed without deciding that Guerra will face
criminal detention but disagreed with the IJ’s finding that he
will face a clear probability of being tortured as a result. It
acknowledged record evidence of harsh conditions in
Mexican prisons but stated that it “d[id] not find that a
dysfunctional prison system in itself equates to or requires a
grant of protection under [CAT] to detainees generally who
are in the system.” In other words, although the BIA
acknowledged there was a possibility that Guerra would be
subjected to harm amounting to torture as a detainee, it
concluded that the general possibility of enduring such harm
does not meet the burden of establishing that Guerra
individually will be targeted for such harm. Again, we hold
this does not satisfy clear error review.
First, the BIA’s reasoning “misapprehends and thus
misstates the totality of the IJ’s findings and conclusions.”
18 GUERRA V. BARR
Ridore, 696 F.3d at 918. Just as in Ridore, “[t]he IJ did not
find that [Guerra] was likely to be tortured just because there
were ‘acts of torture in [Mexico]’s prisons.’” Id. In other
words, the IJ did not simply infer from a finding that torture
occurs generally in Mexico to a finding that Guerra will
likely be tortured. Rather, the IJ inferred that Guerra’s
specific circumstances—namely, his diagnoses for
schizophrenia and seizure disorder—make him likely to
attract attention of the police. The IJ also relied on extensive
letters from Guerra’s family and a psychological evaluation
to find that he would become homeless because he cannot
care for himself. Against the backdrop of country condition
evidence about Mexican police targeting those who are
homeless and have mental health conditions, the IJ inferred
that Guerra would come into their custody and endure severe
pain or suffering as others have in criminal detention. While
the BIA may disagree with the inferences that the IJ drew, it
failed to address the IJ’s predicate factual findings and
simply asserted that Guerra did not meet his burden. See
Ridore, 696 F.3d at 919. “[T]he BIA cannot disregard the
IJ’s findings and substitute its own view of the facts. Either
it must find clear error, explaining why; or, if critical facts
are missing, it may remand to the IJ.” Id.
Additionally, it is evident that “the BIA failed to grapple
with the evidentiary record,” id., which includes various
articles about the vulnerability of certain populations to
which Guerra belongs, such as three reports discussing how
people with mental illnesses are discriminated against and
are at greater risk of abuse in the criminal justice system.
While the government correctly points out that the IJ did not
cite any individualized country conditions evidence
demonstrating that the mentally ill or intellectually disabled
are specifically targeted for the infliction of severe pain or
suffering in detention, this was a permissible inference from
GUERRA V. BARR 19
the record evidence about the discrimination that these
individuals face in the criminal justice system. It is
incumbent on the BIA to explain how the IJ’s finding is
illogical, implausible, or not supported by permissible
inferences from the record. See Rodriguez, 683 F.3d at
1170.
Lastly, we note that the BIA’s analysis of the likelihood
of harm was also flawed because it analyzed the likelihood
of harm by Mexican police and officials in mental health
institutions separately. The BIA errs when it does not
consider “the aggregate risk” that a petitioner faces if
removed. Cole, 659 F.3d at 775. Guerra “need not prove
that each group, treated individually, would more likely than
not torture him.” Id. “Rather, he must establish that, taking
into account all possible sources of torture, he is more likely
than not to be tortured, by or with the consent or
acquiescence of the government, if returned to [Mexico].”
Id. Thus, “[t]he BIA erred by treating each potential source
of torture individually, never assessing [Guerra]’s overall
risk of being tortured.” Id.D.
Because the BIA applied the wrong legal standard to
Guerra’s claim, “the appropriate relief from this court is
remand for reconsideration under the correct standard. . . .”
Ornelas-Chavez v. Gonzales, 458 F.3d 1052, 1058 (9th Cir.
2006). Guerra argues that despite this ordinary remand rule,
we should direct the BIA to grant CAT relief on remand
because the agency has already fully considered the CAT
claim and erroneously denied relief based on a misreading
of the record. The cases Guerra cites, however, are not
analogous to his situation. See Avendano-Hernandez v.
Lynch, 800 F.3d 1072, 1075, 1082 (9th Cir. 2015)
(remanding for grant of relief because BIA’s error
20 GUERRA V. BARR
constituted a factual confusion over the definition of
transgender identity, not a legal error involving the standard
of review); Edu v. Holder, 624 F.3d 1137, 1147 (9th Cir.
2010) (same where it was uncontested that petitioner was
tortured in Nigeria for her participation in political activities,
and the BIA erroneously concluded that she could avoid
torture by refraining from exercising her political rights).
Unlike in Avendano-Hernandez and Edu, the BIA’s legal
error here is not isolated to an aspect of Guerra’s CAT claim
that would lead us to grant relief outright. Where the BIA
failed to apply the proper standard of review, we have
generally vacated the agency’s decision and remanded for
the BIA to apply the appropriate standard of review. See
Reyes v. Lynch, 842 F.3d 1125, 1142–43 (9th Cir. 2016);
Zumel, 803 F.3d at 476–77; Ridore, 696 F.3d at 919, 922;
Rodriguez, 683 F.3d at 1177; Brezilien, 569 F.3d at 414; but
see Vitug, 723 F.3d at 1064. 6
Although we do not remand to grant relief, we do note
that many facts in Guerra’s case are not in dispute. Cf.
Estrada-Martinez v. Lynch, 809 F.3d 886, 897–98 (7th Cir.
2015) (noting undisputed facts). For instance, the BIA did
6
Guerra’s situation is also distinguishable from Vitug, where we
decided that remand for reconsideration was unnecessary because there
was no dispute that petitioner belonged to a protected particular social
group of gay men from the Philippines, and he was presumed eligible for
withholding of removal on the basis of a showing of past persecution.
723 F.3d at 1060, 1064–65. The government failed to rebut that
presumption, leading us to conclude that “no reasonable factfinder”
could come to a different conclusion regarding the grant of withholding.
Id. at 1065–66. Conversely, Guerra has not testified to past instances of
harm or torture, at least as it relates to his CAT application. See Singh v.
Whitaker, 914 F.3d 654, 663 (9th Cir. 2019) (“Relevant considerations
for a CAT claim include evidence of past torture inflicted upon the
applicant[] . . . .”).
GUERRA V. BARR 21
not question the veracity of evidence about Guerra’s mental
health conditions and incapacity to take care of himself. The
IJ found, and the BIA did not challenge, that Guerra will
likely become homeless in Mexico and attract the attention
of police or be institutionalized, or both, due to his
“abnormal behavior,” and that Guerra cannot safely and
reasonably relocate within Mexico. The IJ found, and the
BIA agreed, that there is evidence of regressive, primitive,
and extremely harmful practices in Mexican mental health
institutions, as well as evidence of harsh conditions and harm
amounting to torture against detainees in Mexican prisons.
All these findings appear cogent and well supported by
evidence in the record. We nonetheless remand this case to
the BIA to apply clear error review.
IV.
For the reasons set forth above, we grant the petition for
review, vacate the BIA’s decision, and remand for further
proceedings consistent with this opinion.
PETITION GRANTED AND REMANDED.