NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 3 2023 MOLLY C. DWYER, CLERK FOR THE NINTH CIRCUIT U.S. COURT OF APPEALS MOHAMED SALADDIN MOUSA, No. 22-541 Petitioner, Agency No. A058-847-100 v. MEMORANDUM* MERRICK B. GARLAND, U.S. Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted February 15, 2023 San Francisco, California Before: S.R. THOMAS, MILLER, and SANCHEZ, Circuit Judges. Mohamed Saladdin Mousa (“Mousa”), a native and citizen of Egypt, petitions for review of the Board of Immigration Appeals’ (“BIA”) decision which vacated the Immigration Judge’s (“IJ”) grant of deferral of removal under the Convention Against Torture (“CAT”) based on a finding that he is likely to be tortured because of his history of violent and criminal behavior and affirmed the IJ’s denial of asylum, withholding of removal, and CAT deferral based on his * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Jewish faith, apostate status, and mental health diagnoses. We have jurisdiction under 8 U.S.C. § 1252. We deny in part and grant in part Mousa’s petition for review and remand to the agency for further proceedings. 1. The BIA did not abuse its discretion in affirming the IJ’s denial of asylum and withholding of removal based on its determination that Mousa’s 2017 assault conviction constituted a particularly serious crime. See Bare v. Barr, 975 F.3d 952, 961 (9th Cir. 2020). The IJ and the BIA properly considered the relevant circumstances of the offense, including Mousa’s self-defense claim and Mousa’s mental health symptoms at the time of the events in question. This Court cannot reweigh the evidence to reach a different conclusion as to the seriousness of the crime. See Avendano-Hernandez v. Lynch, 800 F.3d 1072, 1078 (9th Cir. 2015). 2. We conclude the BIA erred in vacating the IJ’s grant of deferral of removal under CAT. BIA regulations prohibit the Board from “engag[ing] in de novo review of findings of fact determined by an [IJ].” 8 C.F.R. § 1003.1(d)(3)(i). In reviewing an IJ’s factual findings for clear error, “the BIA cannot disregard the IJ’s findings and substitute its own view of the facts. Either it must find clear error, explaining why; or, if critical facts are missing, it may remand to the IJ.” Ridore v. Holder, 696 F.3d 907, 919 (9th Cir. 2012). Whether the BIA has applied the correct standard of review is a question of law. Rodriguez v. Holder, 683 F.3d 1164, 1170 (9th Cir. 2012). “[O]ur task is to determine whether the BIA faithfully 2 employed the clear error standard or engaged in improper de novo review of the IJ’s factual findings.” Id. The IJ made two predictive findings relevant to its grant of CAT deferral. First, the IJ found that given Mousa’s extensive “history of violent and criminal behavior” in the United States spanning more than a decade, it is likely that Mousa “would at some point come to the …
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