FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT JOSE EDUARDO GUERRA, No. 18-71070 Petitioner, Agency No. v. A206-351-878 WILLIAM P. BARR, Attorney General, Respondent. OPINION On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted July 17, 2019 San Francisco, California Filed March 3, 2020 Before: Michael R. Murphy, * Richard A. Paez, and Johnnie B. Rawlinson, Circuit Judges. Opinion by Judge Paez * The Honorable Michael R. Murphy, United States Circuit Judge for the U.S. Court of Appeals for the Tenth Circuit, sitting by designation. 2 GUERRA V. BARR SUMMARY ** Immigration The panel granted a petition for review of the Board of Immigration Appeals’ reversal of an immigration judge’s grant of deferral of removal under the Convention Against Torture, holding that the Board erred by conducting a de novo review of the IJ’s factual findings, rather than reviewing them for clear error, as required by 8 C.F.R. § 1003.1(d)(3)(i). Petitioner, who suffers from a mental health condition, 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, where he would more likely than not be tortured. The IJ concluded that petitioner established a clear probability of torture and granted CAT relief, but the Board reversed. The panel held that the Board erred by reviewing the IJ’s factual findings de novo, rather than for clear error, as required by 8 C.F.R. § 1003.1(d)(3)(i). Specifically, the panel concluded that in reversing the IJ’s conclusion that petitioner had established that Mexican officials would have the specific intent to torture him, the Board erred by failing to address the IJ’s key factual findings on which she based her conclusion, and by according more weight to country conditions evidence which the IJ had considered and found unpersuasive. The panel rejected the government’s apparent ** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. GUERRA V. BARR 3 argument, relying on Villegas v. Mukasey, 523 F.3d 984 (9th Cir. 2008), that evidence of primitive and abusive practices on mental health patients categorically is insufficient to support an inference of specific intent to inflict harm. The panel also held that in providing an alternative reason why harmful practices persist in Mexico mental health institutions despite international condemnation, the Board appeared to engage in impermissible factfinding in concluding that lack of material resources and other bureaucratic concerns provide plausible explanations for the persistence of problems. Because the Board did not explain why the IJ’s findings were illogical, implausible, or not supported by permissible inferences from the record, the panel held that it had no trouble concluding that the Board failed to apply clear error review to the IJ’s finding of specific intent. Similarly, the panel held that the Board failed to engage in clear error review in reversing the IJ’s ...
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