Delfina Soto-Soto v. Merrick Garland ( 2021 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DELFINA SOTO-SOTO, No. 20-70587
Petitioner,
Agency No.
v. A209-406-355
MERRICK B. GARLAND, Attorney
General, OPINION
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted January 11, 2021
San Francisco, California
Filed June 11, 2021
Before: J. CLIFFORD WALLACE and MILAN D.
SMITH, JR., Circuit Judges, and JANE A. RESTANI, *
Judge.
Opinion by Judge Milan D. Smith, Jr.;
Partial Concurrence and Partial Dissent by Judge Wallace
*
The Honorable Jane A. Restani, Judge for the United States Court
of International Trade, sitting by designation.
2 SOTO-SOTO V. GARLAND
SUMMARY **
Immigration
Granting Delfina Soto-Soto’s petition for review of a
decision of the Board of Immigration Appeals’ reversing an
immigration judge’s grant of deferral of removal under the
Convention Against Torture, and remanding for the Board to
grant CAT relief, the panel held that the Board erred by
reviewing the IJ’s decision de novo, rather than for clear
error, and concluded that the record compelled the
conclusion that Soto-Soto met her burden of proof to
establish that it is more likely than not that she will suffer
future torture if removed to Mexico.
Michoacán state police arrested and brutally tortured
Soto-Soto until she confessed to the kidnapping and murder
of a five-year old boy. After the Mexican trial court
dismissed the charges against her as a result of due process
errors during the investigation, she fled to the United States.
Mexican prosecutors subsequently conducted a new
investigation and filed new charges against Soto-Soto,
INTERPOL put out a Red Notice for her extradition to
Uruapan in Michoacán, Mexico, which is 67 miles from
where Soto-Soto was tortured in Morelia, Michoacán.
Relying on Soto-Soto’s past torture, her reporting of the
torture to the Michoacán State Commission of Human
Rights despite warnings not to do so, the reissued arrest
warrant, and country condition evidence showing that
indigenous women like Soto-Soto are particularly
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
SOTO-SOTO V. GARLAND 3
vulnerable to torture, the IJ held that Soto-Soto was more
likely than not to be tortured again if removed to Mexico.
The Board reversed and held that the IJ’s determination was
clearly erroneous because he did not acknowledge the
Mexican judicial system’s appropriate steps to correct past
due process errors, that Soto-Soto was not harmed while in
custody for eight months after reporting the torture, and that
members of Soto-Soto’s family remain in Mexico
unharmed.
The panel concluded that the Board’s decision reflected
that it engaged in a de novo weighing of the evidence, rather
than clear error review. The panel explained that the Board
may find an IJ’s factual finding to be clearly erroneous if it
is illogical or implausible, or without support in inferences
that may be drawn from the facts in the record, but in this
case, the Board failed to explain how the IJ’s decision was
illogical, implausible, or without support.
The panel’s majority also concluded that the Board’s
view of the evidence was not supported by the record. First,
the majority wrote that the record emphatically did not show
that the Mexican court took steps to cure the due process
errors caused by the state police officers torturing a
confession out of Soto-Soto. Further, the majority wrote that
even if the record supported the Board’s factual findings,
that would not be enough to overturn the IJ’s decision under
clear error review, because the IJ’s predictive finding as to
the likelihood of torture is entitled to broad deference, which
the Board failed to provide. Second, the majority wrote that
because Soto-Soto’s human rights commission complaint
was not filed until after she was released from custody, and
nothing in the record suggested that the state police officers
were aware of her report, Soto-Soto’s physical safety while
in custody was not probative of the state police officers’
4 SOTO-SOTO V. GARLAND
intent to carry out their threat of future torture. Finally, the
majority wrote that the lack of harm to Soto-Soto’s family
was irrelevant because threats of such harm hinged on Soto-
Soto’s return to Mexico, which had not yet occurred. The
panel also observed that the Board failed to discuss the IJ’s
other key factual findings, including country condition
reports establishing that indigenous women are more likely
to be tortured in Mexico than other groups.
Reviewed under the proper standard of review, the
majority concluded that the IJ’s decision was not clearly
erroneous, and that the record compelled the conclusion that
Soto-Soto met her burden of proof to establish that it is more
likely than not that she will suffer future torture if removed
to Mexico. The majority remanded the petition to the Board
with the direction to grant deferral of removal.
Concurring in part and dissenting in part, Judge Wallace
agreed that the Board impermissibly applied de novo review
in reversing the IJ’s grant of relief. However, Judge Wallace
wrote that he believes that the IJ erred in the likelihood of
future torture analysis, and he relatedly disagreed with the
majority’s and IJ’s conflation of the various Mexican law
enforcement actors in the state of Michoacán into a unitary
actor—i.e., the Michoacán state police—in assessing the
likelihood of torture. Judge Wallace also highlighted that
the IJ found Soto-Soto was ineligible for asylum and
withholding of removal because there are serious reasons to
believe that she did, in fact, kidnap and murder the child
when his family refused to pay the demanded ransom. Judge
Wallace believed that her likely guilt should have been
considered as well because her original criminal case was
not dismissed due to factual innocence but due process errors
that have been corrected. Judge Wallace concluded that the
majority’s direction to the Board to grant CAT relief rather
SOTO-SOTO V. GARLAND 5
than reversing and remanding the petition to the Board for
further consideration goes against the court’s ordinary
practice, especially because the record did not compel the
conclusion that Soto-Soto satisfied her burden of proof.
COUNSEL
Hector A. Vega-Reyes (argued), Public Defender’s Office,
San Francisco, California, for Petitioner.
Jeff Beelaert (argued) and Virginia Lum, Trial Attorneys;
Justin Markel, Senior Litigation Counsel; Ethan P. Davis,
Acting Assistant Attorney General; Office of Immigration
Litigation, Civil Division, United States Department of
Justice, Washington, D.C.; for Respondent.
OPINION
M. SMITH, Circuit Judge:
Petitioner Delfina Soto-Soto was brutally tortured by
Mexican state police until she confessed to the kidnap and
murder of five-year-old Bernardino Bravo Gomez. After the
Mexican trial court dismissed the charges against her due to
lack of evidence of the crimes charged, she fled to the United
States. Mexican prosecutors subsequently refiled the
charges against Soto-Soto, INTERPOL put out a Red Notice
for her extradition to Mexico, and the Department of
Homeland Security (DHS) placed her in removal
proceedings. The Immigration Judge (IJ) granted deferral of
removal under the Convention Against Torture (CAT) based
on a factual finding that Soto-Soto was more likely than not
to be tortured again if removed to Mexico. The Board of
6 SOTO-SOTO V. GARLAND
Immigration Appeals (BIA) reversed the grant of CAT relief
and ordered Soto-Soto removed. Soto-Soto appealed. We
vacate the BIA’s order and remand with instructions to grant
relief.
FACTUAL AND PROCEDURAL BACKGROUND
Delfina Soto-Soto is a 42-year-old indigenous woman
from Uruapan, a city in the Mexican state of Michoacán. On
April 20, 2012, Michoacán state police—in plainclothes and
driving unmarked vehicles—arrested Soto-Soto at her home
in Uruapan for allegedly kidnapping and murdering
Bernardino. The police drove her to Morelia, a town
approximately two hours away from Uruapan. She initially
denied any involvement in the kidnapping.
Michoacán state police brutalized her for hours.
According to Soto-Soto’s testimony, the police first grabbed
her by her hair and threw her to the ground. While she was
on the ground, they tied her hands behind her back, placed
her face-up, and kicked her repeatedly. One officer held her
head between his knees while the others poured water into
her nose and punched her stomach. The officers then put a
plastic bag over her head and sat on her stomach so that she
was unable to breathe, all the while calling her a “fucking
bitch.”
The torture continued to escalate as Soto-Soto refused to
admit involvement in the kidnapping. The police officers
slapped her face, threw her to the ground, tied the plastic bag
over her head until she was at the point of suffocation, and
then repeated the sequence for hours. Next, the officers sat
her in a chair and hit her head against the wall. One officer
pointed a gun at her head several times, telling her that if she
did not sign a confession, they would “keep [her] right there
like a bitch.” Still, with the gun pressed against her forehead,
SOTO-SOTO V. GARLAND 7
Soto-Soto did not relent. Finally, as relayed in Soto-Soto’s
testimony, one of the officers told Soto-Soto, “[I]f you don’t
sign this [confession] in the next 15 minutes, I will give the
order for them to go get your daughters and bring them here,
first they will rape them and then they will kill them in front
of you.” At that point, Soto-Soto signed the confession. The
officers also told her that she would be tortured again if she
reported their acts to anyone.
Soto-Soto was held in custody in Uruapan for the next
eight months and was not tortured again. On December 10,
2012, the Mexican court dismissed the charges for lack of
evidence and released Soto-Soto from custody. Upon her
release, Soto-Soto immediately fled to the United States. On
December 19, 2012, the Michoacán State Human Rights
Commission filed a complaint about the torture on Soto-
Soto’s behalf, but it was dismissed two days later because
Soto-Soto did not provide an address where she could be
contacted.
In 2013, the Government renewed its investigation of
Soto-Soto and secured an arrest warrant after presenting
testimony of sixteen witnesses to the Mexican trial court.
Soto-Soto contends that these witnesses’ testimony also
underlay the first prosecution, and that the witnesses are
individuals from her village who believe that she is a witch.
On November 12, 2015, INTERPOL issued a Red Notice for
Soto-Soto, which called for her return to the state of
Michoacán. She was taken into custody from her workplace
in Madera, CA on November 28, 2017.
After a multi-day hearing, the IJ found that Soto-Soto
was credible and accorded her testimony full evidentiary
weight. The IJ further held that Soto-Soto was statutorily
ineligible for asylum, withholding of removal under the
INA, and withholding of removal under the CAT because
8 SOTO-SOTO V. GARLAND
the warrant for her arrest in the second investigation
provided “serious reasons to believe” that she committed a
“serious nonpolitical crime” before arriving in the United
States.
The IJ also considered whether Soto-Soto was eligible
for deferral of removal under CAT, concluding that the
alleged serious nonpolitical crime did not bar her from this
remedy. In order to obtain deferral of removal, Soto-Soto
had the burden to show that it was more likely than not that
she would be tortured with government involvement or
acquiescence if removed to Mexico. 8 C.F.R.
§§ 1208.16(c)(2), 1208.17(a).
In the IJ’s evaluation of the likelihood of future torture,
the IJ first found that Soto-Soto had suffered torture at the
hands of Michoacán state police from the Office of Anti-
Kidnapping and Extortions. Based on the reissued arrest
warrant in the second prosecution, the IJ further found that
it was more likely than not that Soto-Soto would be stopped
by authorities upon her return and taken back into custody.
The IJ noted that country condition evidence for Mexico
documents that indigenous women like Soto-Soto are
particularly vulnerable to torture. Finally, the IJ determined
that the fact that Soto-Soto reported the previous torture to
the Michoacán State Commission of Human Rights also
makes it more likely that she will be tortured—the state
police officers specifically threatened her with this. Based
on these facts, the IJ found that Soto-Soto had satisfied her
burden to show that she would likely suffer torture with
government involvement or acquiescence if removed to
Mexico. The Government appealed.
The BIA reversed the IJ’s grant of deferral of removal
under CAT. The BIA held that the IJ’s findings were clearly
erroneous because he did not acknowledge the Mexican
SOTO-SOTO V. GARLAND 9
judicial system’s appropriate steps to correct past due
process errors, that Soto-Soto was not harmed while in
custody for 8 months after reporting the torture, and that
members of Soto-Soto’s family remain in Mexico
unharmed.
With respect to the first alleged error, the BIA further
wrote, “[T]he Immigration Judge clearly erred in finding that
the Mexican authorities ‘reinitiated the prosecution against
the Respondent,’ without acknowledging that the Mexican
judicial system excluded the evidence obtained through
torture and conducted a new investigation that independently
resulted in the current charges against the respondent.”
Furthermore, the BIA stated, “The Immigration Judge
clearly erred in finding that the respondent’s HRC complaint
was dismissed on a technicality (IJ at 9); the respondent
testified that she did not attempt to pursue the claim or
contact the HRC after she was released and departed the
country.” 1 For these reasons, the BIA held that the IJ
committed clear error and reversed the IJ’s grant of CAT
deferral of removal. Soto-Soto appealed.
On appeal, Soto-Soto contends that—though the BIA’s
opinion says it reviews the IJ’s finding under the clear error
standard—the substance of the BIA opinion improperly
engages in de novo review. We agree.
1
It is undisputed that HRC did not file Soto-Soto’s complaint of
torture until after she was released from custody, meaning that while
Soto-Soto was in custody, the state police were not aware that she had
disclosed the torture.
10 SOTO-SOTO V. GARLAND
STANDARD OF REVIEW
“Whether the BIA has applied the correct standard of
review is a question of law” that we review de novo.
Rodriguez v. Holder, 683 F.3d 1164, 1169 (9th Cir. 2012).
ANALYSIS
A.
The parties agree that the BIA ought to have reviewed
the IJ’s factual findings for clear error. As this court has
stated:
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, as our sister circuits have
recognized, and we have no difficulty in
agreeing with that conclusion. We do not rely
on the Board’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.
Rodriguez v. Holder, 683 F.3d 1164, 1170 (9th Cir. 2012)
(citations and footnote omitted).
To determine whether “the BIA faithfully employed the
clear error standard,” courts look at the BIA’s reasoning for
reversing the IJ’s decision. Id. “The BIA may find an IJ’s
factual finding to be clearly erroneous if it is illogical or
implausible, or without support in inferences that may be
drawn from the facts in the record.” Id. at 1170 (internal
SOTO-SOTO V. GARLAND 11
quotation marks omitted). Where the BIA does not address
the “key factual findings” on which the IJ based its
conclusion, that strongly suggests that the BIA did not
faithfully engage in clear error review. Zumel v. Lynch,
803 F.3d 463, 475, 476 (9th Cir. 2015).
Furthermore, if it appears that the BIA gave more weight
to certain facts in the record than to others, leading to a
different conclusion from the IJ, our court may justifiably
infer that the BIA applied the wrong standard of review. See
Guerra v. Barr, 974 F.3d 909, 914 (9th Cir. 2020). In
Guerra, we reversed the BIA for reviewing the IJ’s decision
de novo, rather than for clear error, reasoning that “the clear
error standard does not allow the BIA to reweigh the
evidence when the IJ’s account of the evidence is plausible.”
Id. (citing Rodriguez, 683 F.3d at 1171). In explaining our
reasoning, we wrote:
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 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.
Id. at 913–14 (alterations in original). In other words, “[a]n
appellate court cannot substitute its interpretation of the
12 SOTO-SOTO V. GARLAND
evidence for that of the trial court simply because the
reviewing court might give the facts another construction
[or] resolve the ambiguities differently[.]” Inwood Labs.,
Inc. v. Ives Labs., Inc., 456 U.S. 844, 857–58 (1982)
(internal quotation marks omitted).
In Soto-Soto’s case, the IJ found: (1) Soto-Soto had
suffered torture in the past; (2) she would likely be arrested
if returned to Mexico, putting her back within reach of her
torturers; (3) her status as an indigenous woman made her
more likely to be tortured according to the country reports;
and (4) her report of the torture to the human rights
commission increased her likelihood of torture.
The BIA disagreed with the IJ’s view of the evidence.
But its only explanation of why the IJ’s decision was
illogical, implausible, or without support was that “[the IJ]
did not acknowledge that ‘the Mexican judicial system took
appropriate steps to correct any past due process errors
committed by the officers of the Office of Anti-kidnapping
and Extortions,’ that the respondent reported the torture and
was not subsequently harmed or threatened while in custody
for nearly 8 months, and that other members of her family
have remained unharmed in Mexico.” The BIA did not
explain how these alleged errors showed lack of logic,
plausibility, or support in the record on the part of the IJ. The
BIA’s reasoning is therefore insufficient to demonstrate that
the BIA engaged in clear error review. Instead, the BIA’s
reasoning reflects a de novo weighing of the evidence.
Moreover, the BIA’s view of the evidence lacks support
in the record. First, the record emphatically does not show
that the Mexican court took steps to cure the “due process
SOTO-SOTO V. GARLAND 13
errors” 2 caused by the state police officers torturing a
confession out of Soto-Soto. Instead, the record shows that
the Mexican court issued “a court order dismissing charges
. . . for lack of evidence in accordance with the law.” As part
of its conclusion that the evidence against Soto-Soto was
insufficient, the Mexican court held that Soto-Soto’s
confession lacked probative value because “police carried
out questionings at various domiciles without judicial
authorization, nor permission from the owners,” and because
there were “several contradictions regarding . . . the
confession of the accused[.]” Additionally, the court
determined that Soto-Soto’s confession lacked probative
value because she did not have a Purepecha interpreter
during the questioning. Notably absent from this order is
any acknowledgment that state police had tortured Soto-Soto
to obtain her confession, a bar upon her re-prosecution, or
punishment for the officers who tortured her. The court also
did not impose safeguards to ensure that the reopened
investigation would not result in further torture or another
improper confession. The record therefore contains no facts
to support the BIA’s finding that the due process errors in
Soto-Soto’s case were remedied.
Furthermore, even if the record supported the BIA’s
factual findings, that would not be enough for the BIA to
overturn the IJ under the clear error standard of review.
Inwood Labs., Inc., 456 U.S. at 857–58. The IJ’s predictive
fact finding leading to the holding that Soto-Soto was likely
to be tortured again upon return to Mexico recognized that
the second investigation resulted in the issuance of a warrant
for her arrest. But in its discretion as factfinder, the IJ
reasoned that this increased her likelihood of torture—rather
2
Though it strains credulity to call the brutal torture Soto-Soto
endured a “due process error,” we use the BIA’s terms for consistency.
14 SOTO-SOTO V. GARLAND
than decreasing it—because it meant that Soto-Soto would
almost certainly end up in the hands of the state police who
had previously tortured her and had threatened to do so
again. This type of fact finding—how the facts in the record
affect the likelihood of future torture—is entitled to broad
deference from the BIA. See Vitug v. Holder, 723 F.3d 1056,
1063 (9th Cir. 2013). The BIA’s review of that predictive
fact finding, however, exhibits no deference to the IJ’s
decision.
The second reason the BIA gave for reversing the IJ—
that Soto-Soto was unharmed for eight months after
disclosing the prior torture—is also unmoored from the
record. The human rights commission complaint was not
filed until after Soto-Soto was released from custody.
Nothing in the record suggests that the state police officers,
who threatened to torture her if she reported the abuse, were
aware that she had done so. Soto-Soto’s physical safety
while in custody is therefore not probative of the state police
officers’ intent to carry out their threat of future torture if
Soto-Soto reported their past torture.
The BIA’s final point, that Soto-Soto’s family members
remain unharmed in Mexico, is irrelevant. The current
threats to Soto-Soto’s family members hinge on whether
Soto-Soto returns to Mexico. For example, Soto-Soto’s
daughter, Leonarda Bravo Soto, wrote, “I still receive threats
that if my mother returns[,] . . . they will take my daughter
away. . . . [We], her children, do not want her to return to
the town. . . . We love our mother so much and want her
alive for many years more.” Because Soto-Soto has not
returned to Mexico, the current physical safety of her family
members does not indicate that the threats against them are
baseless.
SOTO-SOTO V. GARLAND 15
Moreover, the BIA failed to discuss the IJ’s other “key
factual findings,” specifically that country condition reports
established that indigenous women are more likely to be
tortured in Mexico than other groups. See Zumel, 803 F.3d
at 475, 476. The BIA stated only that “the Mexican
government has made strident efforts to combat the use of
torture[.]” In concluding that the government’s “strident
efforts” to eliminate torture outweighed the country
conditions report showing that indigenous women are at an
increased risk of torture, the BIA re-weighed evidence and
failed to engage in clear error review. Similarly, in
countering the IJ’s finding that community members had
credibly threatened Soto-Soto, the BIA wrote that when
these individuals were actively beating Soto-Soto’s co-
defendant, “the local police did arrive and intervene to some
degree[.]” But the local police who arrived testified that they
did not stop the crowd from beating the co-defendant. The
BIA’s assertion is, again, both unfounded and reflective of
an independent weighing of the evidence rather than clear
error review.
Based on this analysis, the BIA’s decision reflects de
novo, rather than clear error, review. The BIA therefore
applied the wrong standard of review, substituting its own
view of the evidence for the IJ’s.
B.
Reviewed under the proper standard of review, the IJ’s
factual findings were not clearly erroneous. A court
“assessing whether it is more likely than not that an applicant
would be tortured in the proposed country of removal” must
consider:
(i) Evidence of past torture inflicted
upon the applicant;
16 SOTO-SOTO V. GARLAND
(ii) Evidence that the applicant could
relocate to a part of the country of
removal where he or she is not likely
to be tortured;
(iii) Evidence of gross, flagrant or mass
violations of human rights within the
country of removal, where applicable;
and
(iv) Other relevant information regarding
conditions in the country of removal.
8 C.F.R. § 1208.16(c)(3). Of these,
[p]ast torture is ordinarily the principal factor
on which we rely when an applicant who has
been previously tortured seeks relief under
[CAT] because, absent changed
circumstances, if an individual has been
tortured and has escaped to another country,
it is likely that she will be tortured again if
returned to the site of her prior suffering.
Xochihua-Jaimes v. Barr, 962 F.3d 1175, 1188 (9th Cir.
2020) (cleaned up).
In accordance with the items listed in 8 C.F.R.
§ 1208.16(c)(3), the IJ found that the Michoacán state police
tortured Soto-Soto, and the revived arrest warrant
guaranteed she would be placed back in custody of the
Michoacán state police, who previously tortured her,
SOTO-SOTO V. GARLAND 17
precluding relocation. 3 Moreover, the state police officers
specifically threatened to torture Soto-Soto again if she
reported their misconduct—which she did. 4 Finally, the IJ
3
Our dissenting colleague believes that we improperly conflate “the
various Mexican law enforcement actors in the state of Michoacán into
a unitary actor,” because there is no evidence that the Michoacán Office
of Anti-Kidnapping and Extortions in the city of Morelia is a
“component” of the Michoacán police force in the city of Uruapan,
where Soto-Soto would have been held for trial. We disagree that the
record lacks such evidence. For instance, the Human Rights
Commission Complaint filed on Soto-Soto’s behalf states that she was
tortured by “members of the State Ministry Police of the Office of Anti-
kidnapping and Extortions of the State Attorney General.”
Furthermore, the Anti-Kidnapping Office found Soto-Soto at her
home in Uruapan and took her to Morelia to brutalize her before she was
transferred back to Uruapan to be held in prison pending trial. Uruapan
and Morelia are both in the state of Michoacán. It would be illogical to
conclude that, although Soto-Soto was not safe from the “State Ministry
Police of the Office of Anti-kidnapping and Extortions” in her home in
Uruapan, she would be safe from them in a jail cell there, watched over
by other state police. Moreover, the BIA never concluded—and the
Government never argued—that Soto-Soto was ineligible for CAT relief
because the Michoacán Anti-Kidnapping Office was separate from the
Michoacán state police. We therefore respectfully disagree with Judge
Wallace that it would be appropriate for us to base our decision on this
waived factual issue. See Clem v. Lomeli, 566 F.3d 1177, 1182 (9th Cir.
2009) (stating that, in general, appellees waive issues that they fail to
raise in their answering brief); United States v. Dreyer, 804 F.3d 1266,
1277–78 (9th Cir. 2015) (en banc) (same); Moran v. Screening Pros,
LLC, 943 F.3d 1175, 1180 (9th Cir. 2019) (same).
4
Our dissenting colleague need not be concerned that our
disposition of Soto-Soto’s case improperly relies on the dissent in
Dawson v. Garland, Case No. 19-73142, 2021 WL 2125800 (9th Cir.
May 26, 2021). Dissent at 23. In Dawson, the majority affirmed the
denial of CAT relief where the petitioner suffered past torture at the
hands of her intimate partner before obtaining a protective order that
stopped the torture because “[t]he inference that future torture is likely
18 SOTO-SOTO V. GARLAND
considered the country condition reports showing an
increased threat of torture for indigenous women. The IJ did
not err, and a proper application of the clear error standard
of review would have resulted in the BIA affirming the IJ’s
grant of relief. Indeed, the record compels the conclusion
that Soto-Soto “met her burden of proof to establish that it is
more likely than not that she will suffer future torture if
removed to her native country.” Id. at 1188.
CONCLUSION
Because the record compels the conclusion that Soto-
Soto carried her evidentiary burden, we GRANT the petition
and REMAND for the BIA to grant deferral of removal
pursuant to CAT. Id. (citing Haile v. Holder, 658 F.3d 1122,
1133 (9th Cir. 2011)).
to recur breaks down where ‘circumstances or conditions have changed
significantly, not just in general, but with respect to the particular
individual.’” 2021 WL 2125800, at *6 (quoting Nuru v. Gonzales,
404 F.3d 1207, 1218 (9th Cir. 2005)). Dawson does not apply to this
case because—as set forth above—Soto-Soto’s circumstances have not
significantly changed.
Moreover, the rule that past torture is the principal factor for
evaluating the likelihood of future torture was established long before
Dawson. See Xochihua-Jaimes, 962 F.3d at 1188; Avendano-Hernandez
v. Lynch, 800 F.3d 1072, 1080 (9th Cir. 2015); Nuru, 404 F.3d at 1217–
18. By relying on that rule here, we tread no new or uncertain ground.
SOTO-SOTO V. GARLAND 19
WALLACE, Senior Circuit Judge, concurring in part and
dissenting in part:
I concur with the majority’s holding limited to the issue
that the Board of Immigration Appeals (Board)
impermissibly applied de novo review when it reversed the
Immigration Judge’s (IJ) grant of relief pursuant to the
Convention Against Torture (CAT) to Soto-Soto. The
Board’s use of “clear error” before each respective
conclusion does not automatically mean it conducted clear
error review. See Vitug v. Holder, 723 F.3d 1056, 1063 (9th
Cir. 2013). The Board, instead, reweighed the evidence here
when it emphasized factors ignored by the IJ rather than
rejecting reasons relied upon by the IJ as illogical or
impermissible inferences. See Rodriguez v. Holder,
683 F.3d 1164, 1170–71 (9th Cir. 2012) (acknowledging the
Department of Justice’s position that “[a] factfinding may
not be overturned simply because the Board would have
weighed the evidence differently or decided the facts
differently had it been the factfinder”) (alteration in original)
(citations omitted). This is further evinced by the fact that
the Board did not discuss the role of Soto-Soto’s status as an
indigenous woman in its analysis. See Vitug, 723 F.3d at
1064 (holding that the Board “abuses its discretion where it
ignores arguments or evidence”). At the most basic level,
the Board should have conducted a more thorough analysis
to explain how the IJ’s decision was illogical or not based
upon permissible inferences from the record to comply with
the clear error review standard. See Anderson v. Bessemer
City, 470 U.S. 564, 577 (1985).
Had we gone no further and remanded to the Board for
reconsideration, I could have joined in the opinion.
However, the majority decided to add more, resulting in my
dissent on two grounds. First, while I agree that the Board
20 SOTO-SOTO V. GARLAND
conducted impermissible de novo review, I nonetheless
believe the IJ erred in his likelihood of future torture analysis
when he granted CAT relief. Relatedly, I disagree with the
majority’s conflation of the various Mexican law
enforcement actors in the state of Michoacán into a unitary
actor—i.e., the “Michoacán state police.” See, e.g., Maj. Op.
at 6. In my opinion, the majority never refers to Soto-Soto’s
torturers properly because it refers to them as the
“Michoacán state police,” even though the more accurate
description, which is used by the Board, is that they were
members of the Office of Anti-Kidnapping and Extortions in
Morelia, Michoacán. There is no evidence in the record to
support the conclusion that the officers from the Office of
Anti-Kidnapping and Extortions in Morelia are a component
of the same Michoacán state police force that is in the city of
Uruapan, where Soto-Soto would have been held for her
trial. The two cities are 67 miles apart and there is no
evidence of connection, legal or otherwise, of the police
units of the two cities.
In my view, the IJ committed the same error during his
likelihood of future torture analysis when he assumed that
Soto-Soto would be returned to her torturers stationed at the
Office of Anti-Kidnapping and Extortions in Morelia,
Michoacán, despite INTERPOL’s specific direction in the
Red Notice to return Soto-Soto to the court in Uruapan,
Michoacán, where she, in fact, safely remained in custody
for eight months waiting to be tried for the kidnaping and
murder of a child from her neighborhood when the child’s
family did not pay the demanded ransom.
Second, I dissent from the majority’s direction to the
Board to grant CAT relief rather than reversing and
remanding the petition to the Board for further consideration
as is our ordinary practice. See Guerra v. Barr, 974 F.3d
SOTO-SOTO V. GARLAND 21
909, 917 (9th Cir. 2020) (observing that, where the Board
“failed to apply the proper standard of review, we have
generally vacated the agency’s decision and remanded for
the [Board] to apply the appropriate standard of review”);
Ornelas-Chavez v. Gonzalez, 458 F.3d 1052, 1058 (9th Cir.
2006) (reversing and remanding because the Board applied
the incorrect legal standard).
I.
Even if the issue were properly before us, I would
disagree with the majority’s decision to grant Soto-Soto’s
request for CAT relief because I do not believe the evidence
compels such a conclusion. From my reading of the record,
the IJ erred in granting CAT relief due to two assumptions
he made during the likelihood of future torture analysis that
are neither supported by the record nor qualify as
permissible inferences. First, the IJ assumed that Soto-Soto
would be returned to the custody of the officers who tortured
her in Morelia, Michoacán, despite explicit instructions in
the Red Notice that Soto-Soto be transferred to authorities in
Uruapan, Michoacán. As stated earlier, the two cities are
approximately 67 miles apart. The IJ’s assumption was
implausible because he ignored that Soto-Soto would have
been prosecuted in Uruapan, Michoacán, for the new
criminal charges against her so that she would have been in
the custody of a separate law enforcement group and under
the authority of a separate court. Uruapan is a separate
jurisdiction within the state of Michoacán where, in fact, she
remained unharmed for eight months awaiting trial, thereby
proving the implausibility of the IJ’s assumption.
Second, the IJ merged the various law enforcement
actors involved into the unitary concept of “Mexican
authorities” rather than the various discrete law enforcement
authorities throughout the state of Michoacán, i.e., the Office
22 SOTO-SOTO V. GARLAND
of Anti-Kidnapping and Extortions from Morelia, the
Michoacán state police in Uruapan, and the judiciary in
Uruapan. This non-record based unitary law enforcement
theory muddies the actual factual situation. The IJ made no
findings that would support such generalizations. We do not
have the authority to find facts on appeal, and the factual
issue should be resolved on remand. Cf. Ornelas-Chavez,
458 F.3d at 1060 (acknowledging that we cannot make
factual findings and remanding the petition because we
should not conduct an “independent review of the evidence”
to determine whether a petitioner is eligible for CAT relief
when applying the correct legal standard in the first
instance). The majority repeats this error with its inclusive
use of “Michoacán state police.”
The majority asserts that this factual issue has been
waived because it was not raised by the parties; nonetheless,
an impermissible inference was made by the IJ. Although
the government did not make this explicit argument, it was
careful to distinguish between the different law enforcement
actors throughout the proceedings before the Agency and in
its answering brief. The Board also acknowledged the
factual distinction in its decision when it observed that Soto-
Soto’s torturers were from the Office of Anti-Kidnapping
and Extortions, as well as highlighted the torture in Morelia
as opposed to Uruapan.
In addition, the majority’s citation to our decision in
Clem v. Lomeli, 566 F.3d 1177 (9th Cir. 2009), to support its
point that this factual distinction issue was waived is
unavailing because Clem is readily distinguishable from this
appeal. Clem was a Section 1983 prisoner case, in which
Clem appealed from an adverse jury verdict and argued that
the district court gave erroneous jury instructions and that
the error was not harmless. Clem, 566 F.3d at 1179. We
SOTO-SOTO V. GARLAND 23
held in Clem that the jury instructions were erroneous. Id.at 1181–82. We next reasoned that the defendant could not
overcome the presumption of prejudice because he failed to
address prejudice in his answering brief. Id. at 1182. The
majority relies on this point to argue that I should not
consider the law enforcement distinction point when
determining that the IJ made an impermissible inference.
However, the majority forgets that the standard of review is
different here, and we must consider whether substantial
evidence supports the IJ’s determination that Soto-Soto is
entitled to CAT relief in determining whether to remand her
petition for reconsideration or to grant her request for CAT
relief. Ultimately, I cannot ignore the IJ’s impermissible
inference nor the majority’s own factual assumptions to
reach its conclusion.
Finally, I observe that many of the arguments and
assumptions the majority makes to support its conclusion
that Soto-Soto is entitled to CAT relief were rejected by our
court in a separate, unrelated opinion. See Dawson v.
Garland, Case No. 19-73124, 2021 WL 2125800 (9th Cir.
May 26, 2021) (Circuit Judges M. Smith and Ikuta, and
District Judge Vratil). As I observe in my partial dissent, the
majority in Dawson reasoned that the petitioner’s individual
circumstances had changed and the lack of general changes
in the country should not detract from her personally
changed circumstances. Id. at *8. The Dawson dissent
contended that petitioner’s past torture was the “principal
factor” for evaluating the likelihood of future torture. Id.The majority makes a substantially similar argument here,
with which I disagree.
As to the first point, Soto-Soto carries the burden to
establish that it is more likely than not that she would be
tortured if returned to Mexico to be granted CAT relief, in
24 SOTO-SOTO V. GARLAND
this case deferral of removal. 8 C.F.R. §§ 1208.16(c),
1208.17(a). Her application should have been reviewed
under the standards for eligibility set out in section
1208.16(c)(3). See § 1208.17(a); see also Hamoui v.
Ashcroft, 389 F.3d 821, 827 (9th Cir. 2004) (holding that
petitioner must prove there is a “chance greater than fifty
percent” that they “will be tortured if removed”). While
“past torture is ordinarily the principal factor on which we
rely when an applicant who has been previously tortured
seeks” CAT relief, Xochihua-Jaimes v. Barr, 962 F.3d 1175,
1188 (9th Cir. 2020) (cleaned up), we must also consider
whether the circumstances have changed.
Soto-Soto has established her past torture at the hands of
the Office of Anti-Kidnapping and Extortions in Morelia,
but there is no evidence in the record that supports imputing
its conduct to the Michoacán state police in Uruapan, or that
the separate courts in Uruapan would tolerate such activity.
Yet the IJ assumed without record citation that the
Michoacán state police in Uruapan are the same as the Office
of Anti-Kidnapping and Extortions in Morelia. This was not
a permissible inference based on the evidence in the record.
Moreover, I cannot agree with the IJ’s and the majority’s
refusal to consider the evidence of changed circumstances
here that mitigate against the likelihood of future torture. I
believe the Red Notice’s instruction to return Soto-Soto to
Uruapan is a changed circumstance that shifts the balance
against Soto-Soto’s claim. She was detained eight months
in Uruapan, and there is no evidence that any member of the
Michoacán state police in Uruapan harmed Soto-Soto or
threatened to harm her. There is also no evidence that the
Michoacán state police in Uruapan, or the Uruapan court,
would permit Soto-Soto’s torturers from the Office of Anti-
Kidnapping and Extortions in Morelia to torture her again
before her trial or that the police in Uruapan would torture
SOTO-SOTO V. GARLAND 25
Soto-Soto as retribution for reporting her torture by the
Office of Anti-Kidnapping and Extortions.
Even though Soto-Soto argues that the new criminal
charges against her are based on the same evidence but
without her coerced confession, so that she will likely be
tortured again for a new confession, this argument is pure
speculation and without support in the record. The argument
also obscures the fact that the new investigation into the
child’s kidnapping and murder still found sufficient
evidence to once again charge Soto-Soto for the crimes, even
without her coerced confession. The IJ also held that the
serious, non-political crime bar applied because there are
serious reasons to believe that Soto-Soto kidnapped and
murdered the child. It is, therefore, important to emphasize
that Soto-Soto’s original criminal case was not dismissed
due to her torture or her factual innocence, but other due
process errors that the court in Uruapan has corrected.
As to my second point, the record does not support the
IJ’s assumption that the various police and judiciary actors
in Michoacán, Mexico are a unitary actor of “Mexican
authorities”, nor does it support the majority’s similar
merger of authorities as the “Michoacán state police.” We
have emphasized the importance of distinguishing between
local, state, and federal police or countrywide efforts in
persecution cases. See, e.g., Madrigal v. Holder, 716 F.3d
499, 510 (9th Cir. 2013). While the circumstances presented
here are different, I believe the ultimate point rings true that
we are required to consider which law enforcement group
was responsible for the torture and whether that group would
be able to torture her again if she were returned to Mexico.
Yet the majority fails to do so here. My concern is that
the majority’s holding will lead to the perverse result that
any victim of torture by law enforcement from one city can
26 SOTO-SOTO V. GARLAND
essentially claim an omnipresent threat from law
enforcement throughout that region of the country,
regardless of individual, ameliorative efforts taken by other
law enforcement branches in the region. This is particularly
troubling due to the lack of evidence in this case to support
such a theory of CAT relief. Indeed, Soto-Soto was ordered
to be returned to a separate court, 67 miles away from where
the Office of Anti-Kidnapping and Extortions acted, to be
tried for the kidnaping and murder of a neighbor’s child.
There is no evidence that that court in Uruapan would allow
Soto-Soto’s torture.
II.
Finally, I believe the majority errs by directing the Board
to grant Soto-Soto CAT relief outright rather than remanding
her petition to the Board to consider our opinion. Our
ordinary practice is to remand a petition when the Board
applied the incorrect standard, as it did here, unless there is
a special circumstance that requires us to grant the
underlying relief. See Guerra, 974 F.3d at 916–17. As I do
not agree with the majority’s conclusion that the evidence
compels us to grant Soto-Soto CAT relief, I also do not
believe remanding without requiring further consideration
by the Board is appropriate here. We should not interfere
with our usual role as an appellate court to decide factual
issues. Our usual remand to the Board procedure would
overcome this mistake.
III.
For these reasons, I concur with the majority’s holding
that the Board improperly engaged in de novo review and
dissent from the majority’s failure to remand to the Board
for reconsideration to determine whether Soto-Soto is
entitled to CAT relief.