Guerra v. Barr

• Decision Date: 03 March 2020
• Docket Number: No. 18-71070,18-71070
• Parties: Jose Eduardo GUERRA, Petitioner, v. William P. BARR, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

951 F.3d 1128

Jose Eduardo GUERRA, Petitioner,

v.William P. BARR, Attorney General, Respondent.

No. 18-71070

United States Court of Appeals, Ninth Circuit.

Argued and Submitted July 17, 2019 San Francisco, California

Filed March 3, 2020

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.

On Petition for Review of an Order of the Board of Immigration Appeals, Agency No. AXXX-XX1-878

Before: Michael R. Murphy,^* Richard A. Paez, and Johnnie B. Rawlinson, Circuit Judges.

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 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.

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, 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). 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 being tortured 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.

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 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, 105 S.Ct. 1504, 84 L.Ed.2d 518 (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, 105 S.Ct. 1504 ). "Where there are two permissible views...