NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 4 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT ARMANDO NUNEZ-SALGADO, AKA No. 19-70568 Spider Nunes, Agency No. A073-886-461 Petitioner, v. MEMORANDUM* WILLIAM P. BARR, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted April 17, 2020** San Francisco, California Before: HAWKINS and PAEZ, Circuit Judges, and RESTANI,*** Judge. Armando Nunez-Salgado petitions for review of the Board of Immigration Appeals’s (BIA) reversal of the Immigration Judge’s (IJ) grant of deferral of * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Jane A. Restani, Judge for the United States Court of International Trade, sitting by designation. removal under the United Nations Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (CAT). We grant the petition for review and remand to the BIA. The BIA erred by reviewing de novo the IJ’s findings of fact. See 8 C.F.R. § 1003.1(d)(3)(i); Matter of S-H-, 23 I & N Dec. 462, 464 (BIA 2002). The IJ first concluded Nunez-Salgado had experienced “numerous incidents of police brutality,” one of which was “severe enough to potentially qualify as torture.” Second, she explained that the country conditions evidence provided by Nunez- Salgado gave important credibility to the police’s threats that they would “get rid of [Nunez-Salgado]” if they saw him again. Third, she noted that Nunez-Salgado’s appearance and personal history—including “[e]vidence [that his] former gang life is tattooed on his face”—“signaled to Mexican police that he was a person to be wary of,” and he was “repeatedly abused” by police “because he appears to be a gang member.” Finally, she stated that Nunez-Salgado “cannot safely relocate in Mexico,” because he had experienced violence at the hands of police in three different cities in Mexico. “After considering all the evidence,” she held it would “only be a matter of time before Mexican police misconduct against him crosses the line demarcating brutality from torture.” The BIA held that the IJ’s conclusion that the violence against Nunez- Salgado will eventually “cross[] the line” into torture was too “speculative” 2 because the violence “did not steadily escalate.” In so holding, the BIA displaced a factual—not legal—finding.1 “The clear error standard does not allow the BIA to reweigh the evidence when the IJ’s account of the evidence is plausible,” Guerra v. Barr, 951 F.3d 1128, 1135 (9th Cir. 2020), and the conclusion that the violence against Nunez-Salgado escalated and will continue to escalate is, at least, plausible. Even though “[t]he only incident the Immigration Judge considered to ‘potentially qualify as torture’ was the third incident of 2014,” that event was the final one to occur in Tijuana, before Nunez-Salgado moved to Rosarito. Once he moved, the violence began again and continued until ...
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