NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 4 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT CARLOS EDELMIN SAUCEDA- No. 19-70658 HERNANDEZ, Agency No. A043-563-004 Petitioner, v. MEMORANDUM* WILLIAM P. BARR, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted July 14, 2020 San Francisco, California Before: TALLMAN and HUNSAKER, Circuit Judges, and SILVER,** District Judge. Carlos Edelmin Sauceda-Hernandez (“Sauceda”), a native and citizen of Honduras, petitions for review of the Board of Immigration Appeals’ (“BIA”) decision reversing the Immigration Judge’s (“IJ”) granting of deferral of removal * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Roslyn O. Silver, Senior United States District Judge for the District of Arizona, sitting by designation. under the Convention Against Torture (“CAT”). We have jurisdiction pursuant to 8 U.S.C. § 1252(a)(2)(D), and we grant the petition. Sauceda’s sole argument on appeal is that the BIA did not apply the correct standard of review. “Whether the BIA applied the correct standard of review to the IJ’s decision is a question of law, and is thus reviewed de novo.” Vitug v. Holder, 723 F.3d 1056, 1062–63 (9th Cir. 2013) (citation omitted). Pursuant to the applicable regulations, “the BIA shall not ‘engage in de novo review of findings of fact determined by an immigration judge.’” Ridore v. Holder, 696 F.3d 907, 911 (9th Cir. 2012) (quoting 8 C.F.R. § 1003.1(d)(3)(i)). Instead, “the BIA may only review the IJ’s factual findings to determine whether they are clearly erroneous.” Guerra v. Barr, 951 F.3d 1128, 1133 (9th Cir. 2020). An IJ’s factual finding is 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 v. Holder, 683 F.3d 1164, 1170 (9th Cir. 2012) (quoting Anderson v. Bessemer City, 470 U.S. 564, 577 (1985)). The BIA is not entitled to overturn an IJ’s factual findings “simply because the Board would have weighed the evidence differently or decided the facts differently had it been the factfinder.” Id. at 1171 (quoting Board of Immigration Appeals: Procedural Reforms to Improve Case Management, 67 Fed. Reg. 54,878, 54,889 (Aug. 26, 2002)). And an IJ’s factual findings may “include past events, but they are not restricted to historical events.” 2 Vitug, 723 F.3d at 1063 (quoting Kaplun v. Att’y Gen., 602 F.3d 260, 269 (3d Cir. 2010)). Sauceda is a former member of the MS-13 gang and has multiple gang- related tattoos. During his immigration proceedings, the IJ heard from Sauceda, his mother, and an expert witness regarding conditions in Honduras. The IJ credited the testimony of these witnesses and issued a factually detailed written opinion with credibility findings concluding Sauceda “faces a clear probability of torture in Honduras.” Based on that finding, the IJ granted Sauceda’s application for deferral of removal under CAT. In reversing the IJ, ...
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