NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 15 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT GRACIELA IRENE ARELLANO No. 19-72750 HERRERA, Agency No. A091-656-542 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 September 1, 2020 Seattle, Washington Before: McKEOWN and VANDYKE, Circuit Judges, and KENDALL,** District Judge. Memorandum joined by Judge McKEOWN and Judge KENDALL; Dissent by Judge VANDYKE Petitioner Graciela Irene Arellano Herrera (“Arellano”) seeks review of a * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Virginia M. Kendall, United States District Judge for the Northern District of Illinois, sitting by designation. decision of the Board of Immigration Appeals reversing the Immigration Judge’s (“IJ”) deferral of removal pursuant to the Convention Against Torture (“CAT”). This court has jurisdiction to review the BIA’s decision under 8 U.S.C. § 1252. We grant the Petition and remand to the BIA for it to apply the appropriate legal standard. An IJ’s finding with respect to the likelihood of future torture is a factual finding that the BIA can only reverse if the finding was clearly erroneous. See Guerra v. Barr, 974 F.3d 909, 915 (9th Cir. 2020) (“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.”). Whether the BIA applied the correct standard of review is a question of law that this court reviews de novo. Perez-Palafox v. Holder, 744 F.3d 1138, 1143 (9th Cir. 2014) (citing Ridore v. Holder, 696 F.3d 907, 911 (9th Cir. 2012)). The court does not rely on the BIA’s invocation of the clear error standard; rather, the court must review the BIA’s decision “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). The BIA engages in improper fact-finding when it “override[s] or disregard[s] evidence in the record and substitute[s] its own version of reality.” Ridore, 696 F.3d at 917. In assessing the likelihood of future torture, courts must consider “all evidence 2 relevant to the possibility of future torture,” including, but not limited to: evidence of past torture inflicted on the applicant, evidence that the applicant could relocate to a part of the country of removal where she is not likely to be tortured, and evidence of gross, flagrant, or mass human rights violations within the country of removal. 8 C.F.R. § 1208.16(c)(3). The burden does not lie with the applicant to demonstrate that relocation within the proposed country of removal is impossible. Xochihua- Jaimes v. Barr, 962 F.3d 1175, 1186–87 (9th Cir. 2020) (finding that the relocation analysis weighed in the applicant’s favor where there was a “lack of affirmative evidence ...
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