Wilfredo Reyes v. Loretta E. Lynch

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

WILFREDO GARAY REYES, No. 14-70686

Petitioner,

Agency No.

v. A094-330-535

LORETTA E. LYNCH, Attorney

General, OPINION

Respondent.

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted April 6, 2016

Seattle, Washington

Filed November 30, 2016

Before: Michael Daly Hawkins, Johnnie B. Rawlinson,

and Consuelo M. Callahan, Circuit Judges.

Opinion by Judge Callahan

2 REYES V. LYNCH

SUMMARY*

Immigration

Granting in part and denying in part a petition for review

of the Board of Immigration Appeals’ decision affirming the

denial of withholding of removal and protection under the

Convention Against Torture, the panel afforded Chevron

deference to the Board’s articulation in Matter of W–G–R–,

26 I. & N. Dec. 208 (BIA 2014) and Matter of M–E–V–G–,

26 I. & N. Dec. 227 (BIA 2014) of its “particularity” and

“social distinction” requirements for demonstrating

membership in a “particular social group” for purposes of

withholding relief, but held that the Board applied an

impermissible standard of review in assessing the request for

CAT relief.

The panel held that the Board’s construction of the

“particularity” requirement, which focuses on whether the

group is discrete or is, instead, amorphous, is reasonable and

consistent with its own precedent, which has long required

that a particular social group have clear boundaries and that

its characteristics have commonly accepted definitions.

The panel held that the Board’s articulation of its “social

distinction” requirement, which requires evidence showing

that society in general perceives, considers, or recognizes

persons sharing the particular characteristic to be a group, is

also reasonable.

*

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

REYES V. LYNCH 3

Applying that framework, the panel held that the Board

reasonably determined that petitioner’s proposed particular

social group of “former members of Mara 18 gang” lacks

particularity and social distinction, and that his proposed

social group of “deportees from the United States to El

Salvador” lacks particularity.

The panel remanded the CAT claim to allow the agency

to reconsider the application for CAT relief recognizing that

killings can constitute torture, and to undertake the requisite

fact finding in accordance with the agency’s regulations.

COUNSEL

Anne Dutton (argued) and Zachary A. Albun, Student

Attorneys; Benjamin Richard Casper, Supervising Attorney;

University of Minnesota Law School, Center for New

Americans, Federal Immigration Litigation Clinic,

Minneapolis, Minnesota; Alma David, Global Justice Law

Group, PLLC, Seattle, Washington; for Petitioner.

W. Manning Evans (argued) and Susan B. Green, Senior

Litigation Counsel; Benjamin C. Mizer, Principal Deputy

Assistant Attorney General; Office of Immigration Litigation,

Civil Division, United States Department of Justice,

Washington, D.C.; for Respondent.

L. Rachel Lerman, Barnes & Thornburg LLP, Los Angeles,

California; Chris Bayh, Barnes & Thornburg LLP,

Indianapolis, Indiana; for Amicus Curiae Harvard

Immigration and Refugee Clinical Program.

4 REYES V. LYNCH

Fatma E. Marouf, Associate Professor of Law, Las Vegas,

Nevada, as and for Amicus Curiae Immigration Clinic,

University of Nevada, Las Vegas, William S. Boyd School of

Law.

Brook Dooley and Sophie Hood, Keker & Van Nest LLP, San

Francisco, California, for Amici Curiae Lawyers’ Committee

for Civil Rights of the San Francisco Bay Area, Center for

Gender & Refugee Studies, and American Immigration

Lawyers Association.

OPINION

CALLAHAN, Circuit Judge:

Wilfredo Garay Reyes, a native and citizen of El

Salvador, petitions for review of a precedential Board of

Immigration Appeals (“BIA”) opinion in Matter of W–G–R–,

26 I. & N. Dec. 208 (BIA 2014), wherein the BIA dismissed

Garay’s appeal from an Immigration Judge’s (“IJ”) denial of

Garay’s applications for withholding of removal and relief

from removal under Article 3 of the Convention Against

Torture (“CAT relief”).1 Garay claims he is entitled to

withholding of removal because, if removed to El Salvador,

he will more likely than not face persecution on account of

his membership in a particular social group consisting of

“former members of the Mara 18 gang in El Salvador who

have renounced their gang membership” and, alternatively, a

1

Withholding of removal, 8 U.S.C. § 1231(b)(3), and protection

against removal under Article 3 of the Convention Against Torture

(“CAT”), 1465 U.N.T.S. 85, G.A. Res. 39/46, 39th Sess., U.N. GAOR

Supp. No. 51, at 197, U.N. Doc. A/39/51 (1984).

REYES V. LYNCH 5

group consisting of deportees from the United States to El

Salvador. Garay also maintains that he is entitled to CAT

relief because he faces a clear probability of torture from the

Mara 18 gang, Salvadoran death squads, and Salvadoran

government actors.

We have jurisdiction under 8 U.S.C. § 1252. We deny

Garay’s petition in connection with his claims for

withholding of removal. We conclude that the BIA’s

articulation of its “particularity” and “social distinction”

requirements for demonstrating membership in a “particular

social group” are entitled to Chevron deference. See

Chevron, U.S.A., Inc. v. Natural Resources Defense Council,

Inc., 467 U.S. 837, 844 (1984). We also conclude that the

BIA reasonably determined that Garay’s proposed particular

social groups of “former members of Mara 18” and

“deportees from the United States to El Salvador” are not

cognizable. However, because the IJ committed legal error

and the BIA employed an impermissible standard of review

in assessing Garay’s request for CAT relief, we grant Garay’s

petition with respect to the denial of his CAT claim.

I

A

In 2000, at the age of seventeen, Garay joined the Mara

18 gang in El Salvador. Upon joining Mara 18, Garay

participated in three to five robberies of wealthy ranchers.

Four months after Garay joined the gang, a new and more

violent leader, named Francisco, took over, and the gang

committed a string of armed bank robberies under his

leadership. Garay, armed with a gun, served as a driver for

two or three heists.

6 REYES V. LYNCH

Disenchanted with Francisco’s leadership style and not

wishing to be further involved in bank robberies, Garay

decided to leave the gang after being a member for less than

a year. Garay went into hiding, moving to another town.

Garay feared retribution or reprisals from Francisco, who had

previously announced that anyone trying to leave could be

punished with beatings or death.

After Garay fled, Francisco found Garay and shot him in

the leg. Some months later, Garay was confronted in a

billiard hall by machete-wielding assailants. He defended

himself with his own machete and a handgun. In late 2000,

Garay had his gang tattoo removed. Shortly thereafter, Garay

left El Salvador and made his way to the United States.

Garay entered the United States without inspection in

May 2001, at age eighteen. Now thirty-three years old, Garay

has a wife and two daughters. There is no indication that

Garay has been involved with gangs since entering the United

States.

B

On March 25, 2009, Immigration and Customs

Enforcement (“ICE”) issued a Notice to Appear, alleging that

Garay was unlawfully present and should be removed. Garay

conceded removability as charged. Garay, represented by

counsel, testified before the IJ on January 14, 2010.

Following the hearing, the IJ issued an oral decision, in

which he found Garay credible. The IJ pretermitted Garay’s

application for asylum because it had not been filed within a

year of his entry into the United States.

REYES V. LYNCH 7

Addressing Garay’s withholding claim, the IJ concluded

that, although Garay had been subjected to persecution in El

Salvador, he had not established that he was persecuted on

account of his membership in a particular social group

consisting of “former members of Mara 18 in El Salvador

who have renounced their gang membership.” The IJ noted

Garay’s four-to-six month active membership in Mara 18 and

reasoned that “[a]lthough the respondent has clearly indicated

that he wishes to renounce his gang membership, he cannot

disassociate himself from the volitional activities with which

he was involved as a member of the Mara 18 gang.” The IJ

also noted that Garay had submitted background materials

“which indicate that El Salvadoran gangs may have multiple

motivations and modus operandi in their particular groups.”

Denying Garay’s withholding claim, the IJ cited Arteaga

v. Mukasey, 511 F.3d 940 (9th Cir. 2007), and Matter of

E–A–G–, 24 I. & N. Dec. 591 (BIA 2008), as authority for the

proposition that membership in a violent criminal gang

cannot serve as the basis for a particular social group. The IJ

did not address whether Garay had demonstrated a nexus to

his purported membership in a social group. The IJ also did

not address Garay’s alternative proposed social group of

“deportees from the United States to El Salvador.”

Addressing Garay’s claim for CAT relief, the IJ noted that

Garay had testified that he feared arrest by the police and that

he could be subject to reprisals from his former fellow gang

members if removed to El Salvador. The IJ concluded that

Garay had not shown a likelihood that he would be arrested

because Garay had failed to demonstrate that the police have

been searching for him or that he had been charged with any

crimes in El Salvador. Regarding reprisals from the gang, the

IJ stated that Garay had “suggested in his written application

8 REYES V. LYNCH

for relief that if he is located by his former gang that he could

be subject to various brutal forms of treatment, including

having a tire placed on him being filled with gasoline.”

However, the IJ observed that Garay had not mentioned his

fear of that specific threat during his hearing, but had

“indicated that he believes that he would be killed by his

former gang members.” The IJ then stated that the materials

Garay had submitted “contain little if any information

concerning the treatment of former gang members such as

[himself] upon their return to El Salvador beyond being

killed.” The IJ concluded that Garay had “failed to

demonstrate by any standard that he would be subjected to

torture.”

The IJ ordered Garay removed to El Salvador. Garay

timely appealed to the BIA.

C

On February 7, 2014, the BIA panel dismissed Garay’s

appeal in a precedential decision, Matter of W–G–R–, 26 I. &

N. Dec. 208 (BIA 2014). In Matter of W–G–R–, and in a

companion precedential decision issued the same day, Matter

of M–E–V–G–, 26 I. & N. Dec. 227 (BIA 2014), the BIA

clarified the requirements that an applicant for asylum or

withholding of removal must satisfy in order to demonstrate

membership in a particular social group. The applicant must

“establish that the group is (1) composed of members who

share a common immutable characteristic, (2) defined with

particularity, and (3) socially distinct within the society in

question.” M–E–V–G–, 26 I. & N. Dec. at 237; see also

W–G–R–, 26 I. & N. Dec. at 212.

REYES V. LYNCH 9

In Matter of W–G–R–, the BIA reviewed its historical

efforts to construe the statutory term “particular social group”

as it applies in asylum and withholding cases. 26 I. & N.

Dec. at 209–10. The BIA explained that its articulation of the

“particularity” and “social visibility” requirements was not a

departure from or abrogation of its construction of a

“particular social group” in Matter of Acosta, 19 I. & N. Dec.

211 (BIA 1985).2 Id. at 211–12 (citing Henriquez-Rivas v.

Holder, 707 F.3d 1081, 1083 (9th Cir. 2013) (en banc)).

Instead, the BIA explained, the requirements “clarified the

definition of the term [‘particular social group’] to give it

more ‘concrete meaning through a process of case-by-case

adjudication.’” Id. at 212 (quoting INS v. Aguirre-Aguirre,

526 U.S. 415, 425 (1999)). In Matter of W–G–R–, the BIA

adhered to its previous holdings that “both particularity and

social visibility are critical elements in determining” the

cognizability of a particular social group, but re-named the

“social visibility” criterion as “social distinction.” Id.

The BIA observed that the term “particularity” is included

in the plain language of the statute. Id. at 213. The BIA

explained that “[t]he particularity requirement also derives

from the concept of immutability . . . clarifying the point, at

least implicit in earlier case law, that not every immutable

characteristic is sufficiently precise to define a particular

social group.” Id. The BIA explained that “the focus of the

particularity requirement is whether the group is discrete or

is, instead, amorphous.” Id. at 214.

The BIA clarified that the term “social distinction” was

intended to replace the term “social visibility.” “Social

2

The BIA did not discuss any changes to the immutability

requirement.

10 REYES V. LYNCH

distinction” more accurately describes the function of the

requirement and reflects that it is not intended to require

“literal,” “ocular,” or “on-sight” visibility. Id. at 211, 216.

Beyond that, the BIA clarified:

To have the “social distinction” necessary to

establish a particular social group, there must

be evidence showing that society in general

perceives, considers, or recognizes persons

sharing the particular characteristic to be a

group. Although the society in question need

not be able to easily identify who is a member

of the group, it must be commonly recognized

that the shared characteristic is one that

defines the group.

Id. at 217 (emphasis added).

The BIA explained that its decision not to focus the

“social distinction” inquiry solely on the persecutor’s

perspective was based, in part, on the fact that the inquiry into

whether a group is a “particular social group” is distinct from

the inquiry into the “nexus” requirement, which considers

whether a person is persecuted “on account of” membership

in a particular social group.3 Id. at 218.

3

An asylum or withholding applicant’s burden includes

(1) “demonstrating the existence of a cognizable particular social group,”

(2) “his membership in that particular social group,” and (3) “a risk of

persecution on account of his membership in the specified particular social

group.” Matter of W–G–R–, 26 I. & N. Dec. at 223 (citing Ayala v.

Holder, 640 F.3d 1095, 1097–98 (9th Cir. 2011)). The third element is

often referred to as the “nexus” requirement.

REYES V. LYNCH 11

Turning to Garay’s withholding claim, the BIA agreed

with the IJ that Garay’s proposed group of “former members

of the Mara 18 gang in El Salvador who have renounced their

gang membership” was not cognizable. Id. at 221. The BIA

reasoned that “[t]he group as defined lacks particularity

because it is too diffuse, as well as being too broad and

subjective.” Id. The BIA commented that, “[a]s described,

the group could include persons of any age, sex, or

background. It is not limited to those who have had a

meaningful involvement with the gang and would thus

consider themselves—and be considered by others—as

‘former gang members.’” Id.

Addressing the “social distinction” requirement, the BIA

stated that “[t]he record contains scant evidence that

Salvadoran society considers former gang members who have

renounced their gang membership as a distinct social group.”

Id. at 222. The BIA concluded that Garay had not provided

evidence demonstrating that his proposed particular social

group is “perceived, considered, or recognized in Salvadoran

society as a distinct group.” Id.

Having determined that Garay had not demonstrated

membership in a cognizable group, the BIA did not need to

address the “nexus” requirement. However, it held in the

alternative that Garay had “not demonstrated the required

nexus between the harm he fears and his status as a former

gang member.” Id. at 223. The BIA noted that while

persecution can be a factor in determining whether a group is

recognized as a distinct group within the relevant society,

“the persecutor’s views play a greater role in determining

whether persecution is inflicted on account of the victim’s

membership in a particular social group.” Id. The BIA then

determined that Garay had “not shown that any acts of

12 REYES V. LYNCH

retribution or punishment by gang members would be

motivated by his status as a former gang member, rather than

by the gang members’ desire to enforce their code of

conduct.”4 Id. at 224.

The BIA also rejected Garay’s proposed social group of

deportees from the United States to El Salvador. The BIA

found that the proposed group is “too broad and diverse a

group to satisfy the particularity requirement for a particular

social group under the Act.” Id. at 223 (citing Delgado-Ortiz

v. Holder, 600 F.3d 1148, 1151–52 (9th Cir. 2010) (per

curiam)). The BIA explained:

The respondent’s purported social group

could include men, women, and children of all

ages. Their removal from the United States

could be based on numerous different factors.

The length of time they were in the United

States, the recency of their removal, and

4

As we affirm the BIA’s determination that Garay failed to

demonstrate membership in a cognizable group, see infra, we do not reach

the BIA’s treatment of nexus. We note, however, that the BIA’s

differentiation between the status of being a former gang member and the

retributory acts of the gang has been criticized. See Oliva v. Lynch,

807 F.3d 53, 60 (4th Cir. 2015) (“[T]he BIA drew too fine a distinction

between Oliva’s status as a former member of MS-13 and the threats to

kill him for breaking the rules imposed on former members. While it is

true that Oliva’s decision to stop paying rent . . . was the immediate trigger

for the gang’s brutal assault on Oliva, it was Oliva’s status as a former

gang member that led MS-13 to demand rent in the first place and to

assault him for failure to pay it.”).

REYES V. LYNCH 13

societal views on how long a person is

considered a deportee after repatriation could

vary immensely.

Id.

Finally, the BIA reviewed the IJ’s denial of CAT relief

for clear error, and affirmed. Id. at 224–26. It reviewed

evidence in support of Garay’s claims that he feared torture

at the hands of rival gangs, the police, or clandestine death

squads, id. at 224–25, but concluded that “the Immigration

Judge’s predictive findings with respect to the respondent’s

torture claim [we]re not clearly erroneous . . . .” Id. at 225.

In a footnote to its CAT analysis, the BIA addressed

Garay’s challenge to the IJ’s statement that the background

materials Garay had submitted contained little information

about the treatment former gang members face “beyond being

killed.” Id. at 226 n.9. The BIA disagreed with Garay’s

characterization of the IJ’s decision “as holding that [Garay]

faces a danger of being killed but that death is not torture.”

Id. The BIA read the IJ’s statement not as an assertion that

killings are not torture but, rather, as “h[o]ld[ing] that the

evidence was not sufficient to show a clear probability that

the respondent would be tortured.” Id.

Garay timely petitioned for review of the final order of

removal entered by the BIA.

II

The primary issue in this case is whether we should

accord deference to the BIA’s “particularity” and “social

distinction” requirements for establishing the existence of a

14 REYES V. LYNCH

“particular social group,” as articulated in the precedential

opinion in Garay’s case, Matter of W–G–R–, 26 I. & N. Dec.

208.

The BIA’s construction of ambiguous statutory terms in

precedential decisions is entitled to deference under Chevron,

467 U.S. at 844. Henriquez–Rivas, 707 F.3d at 1087. We

must accept the BIA’s construction if it is reasonable, “even

if the agency’s reading differs from what the court believes is

the best statutory interpretation.” Nat’l Cable & Telecomms.

Ass’n v. Brand X Internet Servs., 545 U.S. 967, 980 (2005)

(“Brand X”). Consistency with the agency’s past practice or

precedent is not required for an agency interpretation to be

due Chevron deference; a new or varying agency

interpretation is permitted, if it is adequately explained. Id.

at 981.

Garay contends that the BIA’s “particularity” and “social

distinction” requirements are unreasonable, unreasoned, and

impermissibly prevent individuals from seeking asylum. We

disagree and conclude that BIA’s present articulation of the

“particularity” and “social distinction” requirements is

consistent with the statute, reflects the agency’s ongoing

efforts to construe the ambiguous statutory phrase “particular

social group,” is reasonable, and is entitled to Chevron

deference.

A

The phrase “membership in a particular social group” is

not defined in the statute and has spawned extensive debate

REYES V. LYNCH 15

and litigation.5 Matter of W–G–R– and Matter of M–E–V–G–

are the latest in a long line of BIA decisions refining the

contours of this ambiguous statutory provision.

The BIA first interpreted “persecution on account of

membership in a particular social group” in Matter of Acosta,

applying the doctrine of ejusdem generis to conclude that the

phrase means “persecution that is directed toward an

individual who is a member of a group of persons all of

whom share a common, immutable characteristic.” 19 I. &

N. Dec. at 233, overruled on other grounds in Matter of

Mogharrabi, 19 I. & N. Dec. 439 (BIA 1987).

In the ensuing years, Acosta’s immutable characteristic

test “led to confusion and a lack of consistency as

adjudicators struggled with various possible social groups,

some of which appeared to be created exclusively for asylum

purposes.” Matter of M–E–V–G–, 26 I. & N. Dec. at 231. In

response to calls for greater clarity, and in order to address

the evolving nature of the claims presented by asylum

applicants, “the BIA refined the Acosta standard by stating

that an asylum applicant must also demonstrate that his

proposed particular social group has ‘social visibility’ and

‘particularity.’” Henriquez-Rivas, 707 F.3d at 1084 (quoting

Matter of C–A–, 23 I. & N. Dec. 951, 957, 960 (BIA 2006));

Matter of M–E–V–G–, 26 I. & N. Dec. at 232. The “social

visibility” requirement considered whether the proposed

particular social group was “easily recognizable and

understood by others to constitute [a] social group[].” Matter

of C–A–, 23 I. & N. Dec. at 959–61.

5

See Valdiviezo-Galdamez v. Att’y Gen., 663 F.3d 582, 594 (3d Cir.

2011) (“The concept is even more elusive because there is no clear

evidence of legislative intent.”).

16 REYES V. LYNCH

In subsequent cases, the BIA further elaborated on the

meaning of the “particularity” and “social visibility”

requirements. In Matter of S–E–G–, 24 I. & N. Dec. 579, 584

(BIA 2008), the BIA stated “[t]he essence of the

‘particularity’ requirement, therefore, is whether the proposed

group can accurately be described in a manner sufficiently

distinct that the group would be recognized, in the society in

question, as a discrete class of persons.” In Matter of

E–A–G–, 24 I. & N. Dec. 591, 594 (BIA 2008), the BIA

explained “[t]he purported group’s social visibility—i.e., the

extent to which members of a society perceive those with the

characteristic in question as members of a social group—is of

particular importance in determining whether an alien is a

member of a claimed particular social group.”

The BIA’s attempts to clarify its “social visibility”

requirement received mixed reviews from the circuit courts.

In Henriquez-Rivas, 707 F.3d at 1085, we noted that most

circuits had accepted the BIA’s “social visibility” and

“particularity” criteria, but that the Third and Seventh

Circuits had rejected the criteria as an unreasonable

interpretation of the ambiguous statutory term.

In Henriquez-Rivas, we “clarif[ied] the ‘social visibility’

and ‘particularity’ criteria without reaching the ultimate

question of whether the criteria themselves are valid,” i.e.,

whether they were due Chevron deference. Id. at 1091.6 We

6

Since Henriquez-Rivas, we have issued opinions in two cases

involving the meaning of “membership in a particular social group.”

Flores Rios v. Lynch, 807 F.3d 1123 (9th Cir. 2015); Pirir-Boc v. Holder,

750 F.3d 1077 (9th Cir. 2014). In both cases, we acknowledged that the

BIA had revisited its interpretation of the phrase “particular social group”

in M–E–V–G– and W–G–R–. Flores Rios, 807 F.3d at 1124, 1127; Pirir-

Boc, 750 F.3d at 1079, 1082–84. However, in neither case did we address

REYES V. LYNCH 17

did, however, comment that “[s]o long as the ‘social

visibility’ and ‘particularity’ criteria are applied in a way that

did not directly conflict with prior agency precedent, we

would be hard-pressed to reject the new criteria as

unreasonable under Chevron.” Id. at 1089.

B

We now hold that the BIA’s interpretation in W–G–R–

and M–E–V–G– of the ambiguous phrase “particular social

group,” including the BIA’s articulation of the “particularity”

and “social distinction” requirements is reasonable and

entitled to Chevron deference. We consider the requirements

in turn.

1

We recognized in Henriquez-Rivas that the “particularity”

requirement is distinct from the “social visibility”

requirement. “The ‘particularity’ requirement is separate, and

it is relevant in considering whether a group’s boundaries are

so amorphous that, in practice, the persecutor does not

consider it a group.” 707 F.3d at 1091.

The BIA’s current articulation of its “particularity”

requirement is reasonable and is consistent with its own

precedent, which has long required that a particular social

group have clear boundaries and that its characteristics have

commonly accepted definitions. See, e.g., Matter of S–E–G–,

24 I. & N. Dec. at 585 (rejecting as too amorphous a

proposed group of “male children who lack stable families

what deference was due the BIA’s new articulation of its construction of

“membership in a particular social group.”

18 REYES V. LYNCH

and meaningful adult protection, who are from middle and

low income classes, who live in the territories controlled by

the MS-13 gang, and who refuse recruitment”); Matter of

A–M–E– & J–G–U–, 24 I. & N. Dec. 69, 76 (BIA 2007)

(explaining that “affluent Guatemalans” did not qualify as a

particular social group in part because the “characteristic of

wealth or affluence is simply too subjective, inchoate, and

variable to provide the sole basis for membership”); Matter

of C–A–, 23 I. & N. Dec. at 953, 959, 961 (rejecting a

proposed group of “noncriminal drug informants working

against the Cali drug cartel” due, in part, to the fact that the

distinction between government informants who had been

compensated for their services and those who acted out of

civic motives was not sufficient to carve out a particular

“subgroup” of uncompensated informants); Matter of

V–T–S–, 21 I. & N. Dec. 792, 798 (BIA 1997) (holding

“Filipino[s] of mixed Filipino-Chinese ancestry” cognizable

as a particular social group in part because a country

conditions report stated that 1.5% of the Philippine

population had an “identifiable” Chinese background). The

BIA’s statement of the purpose and function of the

“particularity” requirement does not, on its face, impose a

numerical limit on a proposed social group or disqualify

groups that exceed specific breadth or size limitations. Nor

is it contrary to the principle that diversity within a proposed

particular social group may not serve as the sine qua non of

the particularity analysis. Cordoba v. Holder, 726 F.3d 1106,

1116 (9th Cir. 2013); Henriquez-Rivas, 707 F.3d at 1093–94.

Rather, the BIA imposes the “particularity” requirement in

order to distinguish between social groups that are discrete

and those that are amorphous. Matter of W–G–R–, 26 I. & N.

Dec. at 214. Recognizing that, in order to be “particular,” a

group must have some definable boundary is not

unreasonable.

REYES V. LYNCH 19

We thus find the definition of the “particularity”

requirement articulated in W–G–R– and M–E–V–G– to be

both reasonable and consistent with the BIA’s own precedent.

Brand X, 545 U.S. at 980–81.

2

The BIA’s articulation of its “social distinction”

requirement is also reasonable. The “social distinction”

requirement is not, as Garay contends, a “new” requirement.

Rather, the “social distinction” requirement is reasonably

read to be precisely what the BIA characterizes it to be: a

renaming of the “social visibility” requirement. Matter of

W–G–R–, 26 I. & N. Dec. at 212.

In Henriquez-Rivas, we did not reject the erstwhile

“social visibility” requirement as an “unreasoned concept,” as

alleged by Garay. Rather, we examined the concept and

concluded that the “social visibility” inquiry cannot require

“on-sight” visibility. We held that the proper inquiry is

whether a proposed particular social group’s shared

characteristic or characteristics would “generally be

recognizable by other members of the community,” or

whether there was “evidence that members of the proposed

group would be perceived as a group by society.” 707 F.3d

at 1088–89 (internal quotation marks omitted). The BIA’s

explanation of its “social distinction” requirement is

consistent with our articulation of the appropriate inquiry.

Additionally, although we commented in Henriquez-Rivas

on the potential import of the persecutor’s perspective in

assessing “social visibility,” id. at 1089 (“Looking to the text

of the statute, in the context of persecution, we believe that

the perception of the persecutors may matter the most.”), the

20 REYES V. LYNCH

agency is not bound by our belief, as we did not hold that it

was the only reasonable construction of an unambiguous

statutory term.7 Brand X, 545 U.S. at 981; Pirir-Boc,

750 F.3d at 1083 n.6 (noting that Henriquez-Rivas left the

issue for the BIA to decide). Moreover, the BIA’s

articulation of the “social distinction” requirement does not

preclude consideration of the persecutor’s perspective.

Rather, as we acknowledged in Pirir-Boc, the BIA has noted

at least two ways in which the “perception of the applicant’s

persecutors may be relevant.”8 750 F.3d at 1083 n.6. We

noted that, “while the BIA did not give the persecutor’s

perspective the same role in the analysis as the one [this

Court] had recommended [in Henriquez-Rivas], it did give

that perspective an important place.” Id. Accordingly, the

BIA’s “social distinction” requirement does not unreasonably

discount the perceptions of persecutors.

Finally, the “social distinction” requirement is not

redundant in light of the “nexus” requirement for asylum and

withholding claims. Rather than conflate the “social

distinction” and “nexus” requirements, the BIA’s reasoning

reflects an appreciation of the need to distinguish between the

showing an applicant must make in order to demonstrate

membership in a “particular social group” and the showing

that is necessary to demonstrate that he was persecuted, or

7

Our belief was not unanimous. In a concurring opinion, Judge

McKeown observed that “[d]efining social visibility from the perspective

of society better comports with the case law” and “also makes common

sense.” Henriquez-Rivas, 707 F.3d at 1094 (McKeown, J., concurring).

8

These are (1) when persecution may lead to a group’s initial

recognition, and (2) in cases of persecution on account of imputed

grounds. Pirir-Boc, 750 F.3d at 1083 n.6 (citing M–E–V–G–, 26 I. & N.

Dec. at 242–43).

REYES V. LYNCH 21

fears persecution, “on account of” that membership. This is

consistent with the Supreme Court’s conception of the

“nexus” requirement. See INS v. Elias-Zacarias, 502 U.S.

478, 483 (1992) (explaining that “the statute makes motive

critical” and an asylum applicant must provide direct or

circumstantial evidence of his persecutors’ motives in order

to satisfy the “nexus” requirement).

Accordingly, we reject Garay’s challenges to the BIA’s

construction of the phrase “particular social group” because

we find that the BIA’s articulation of the “particularity” and

“social distinction” requirements in Matter of W–G–R– is

reasonable and entitled to Chevron deference.9 Brand X,

545 U.S. at 981.

III

Having determined that the BIA’s definition of particular

social group is entitled to Chevron deference, we next

consider Garay’s contention that the BIA erred in finding that

his proposed social group of “former members of the Mara 18

gang in El Salvador who have renounced their membership”

did not fit within that definition.

9

Garay also argues that the BIA’s analysis of international law is both

incomplete and flawed, supporting rejection of its “social distinction”

requirement. However, the BIA did consider international refugee

standards and determined that its approach to defining a particular social

group was not “fundamentally different from international standards.”

Matter of W–G–R–, 26 I. & N. Dec. at 221. Regardless, although the

United Nations Protocol Relating to the Status of Refugees and United

Nations High Commissioner for Refugees guidance may be useful in

construing the provisions added to the Immigration and Nationality Act

by the Refugee Act, they do not have the force of law. Aguirre-Aguirre,

526 U.S. at 427; Khan v. Holder, 584 F.3d 773, 783 (9th Cir. 2009).

22 REYES V. LYNCH

“The Attorney General, while retaining ultimate authority,

has vested the BIA with power to exercise the ‘discretion and

authority conferred upon the Attorney General by law’ in the

course of ‘considering and determining cases before it.’”

Aguirre-Aguirre, 526 U.S. at 425 (quoting 8 C. F. R.

§ 3.1(d)(1)). As a general rule, we review the BIA’s denial of

withholding of removal for substantial evidence. Garcia-

Milian v. Holder, 755 F.3d 1026, 1031 (9th Cir. 2014) (citing

Pagayon v. Holder, 675 F.3d 1182, 1190 (9th Cir. 2011)).

Under the substantial evidence standard, we may reverse the

BIA only on a finding “‘that the evidence not only supports

[a contrary] conclusion, but compels it—and also compels the

further conclusion’ that the petitioner meets the requisite

standard for obtaining relief.” Id. (quoting INS v. Elias-

Zacarias, 502 U.S. at 481 n. l.).

In Aguirre-Aguirre, the Supreme Court stated that “the

BIA should be accorded Chevron deference as it gives

ambiguous statutory terms ‘concrete meaning through a

process of case-by-case adjudication.’” 526 U.S. at 425

(quoting INS v. Cardoza-Fonseca, 480 U.S. 421, 448–49

(1987)). In Henriquez-Rivas, we held that we review the

BIA’s findings for substantial evidence, but that “[t]he BIA’s

construction of ambiguous statutory terms . . . is entitled to

deference under Chevron.” 707 F.3d at 1087. In this case,

whether we apply a “Chevron deference” or “substantial

evidence” standard of review—assuming they might in some

instances be different—makes no difference, because the

BIA’s application of the “particularity” and “social

distinction” criteria to Garay’s withholding claims was

reasonable.

The BIA’s application of the “particularity” requirement

to Garay is reasonable in light of the absence of record

REYES V. LYNCH 23

evidence demonstrating that Salvadoran society recognizes

the boundaries of a group comprised of former Mara 18

members who have renounced their membership, regardless

of the length and recency of that membership. Matter of

W–G–R–, 26 I. & N. Dec. at 221 (“The boundaries of a group

are not sufficiently definable unless the members of society

generally agree on who is included in the group, and evidence

that the social group proposed by the respondent is

recognized within the society is lacking in this case.”).

Similarly, we agree that substantial evidence supports the

BIA’s conclusion that Garay’s proposed group lacks social

distinction. Id. at 222–23. The record evidence does, as

Garay points out, include some evidence of rehabilitation

programs run for the benefit of former gang members and of

threats former gang members face from members of their

own and other gangs. The record evidence does not,

however, compel the conclusion that Salvadoran society

considers former gang members as a distinct social group,

e.g., distinct from current gang members who may also avail

themselves of government programs or from suspected gang

members who face discriminatory treatment and other

challenges in Salvadoran society. See Vitug v. Holder,

723 F.3d 1056, 1062 (9th Cir. 2013) (“We review for

substantial evidence the factual findings underlying the BIA’s

determination that a petitioner is not eligible for withholding

of removal. . . .”).

Accordingly, we reject Garay’s challenges to the BIA’s

determination that his proposed social group of “former

24 REYES V. LYNCH

members of the Mara 18 gang in El Salvador who have

renounced their membership” is not cognizable.10

IV

Garay also purports to challenge the BIA’s denial of his

withholding claim based on his membership in a particular

social group consisting of “deportees from the United States

to El Salvador.” This assertion appears to have been an

afterthought as his brief only asserts that the BIA’s decision

turned exclusively on particularity. The BIA’s decision is

entitled to deference, see supra page 21–22, and we conclude

that the BIA’s denial of withholding based on a particular

social group of “deportees from the United States to El

Salvador” is reasonable.

10

Garay made two additional arguments, neither of which are

persuasive. First, he argues that the BIA erred in relying on Arteaga v.

Mukasey, 511 F.3d 940 (9th Cir. 2007), to find Garay’s proposed social

group was not cognizable. Although the IJ relied on Arteaga, the BIA did

not and only mentioned Arteaga in a footnote. Matter of W–G–R–, 26 I.

& N. Dec. at 215 n.5. Since Arteaga was not crucial to the BIA’s

decision, we express no opinion on the correctness of the BIA’s footnote.

Second, Garay argues that the BIA’s articulation of the “particularity”

and “social distinction” requirements imposed a new evidentiary standard

and the BIA’s failure to give him an opportunity to meet that new standard

denied him due process. We note that Garay submitted extensive country

conditions evidence in support of his application and has identified no

additional evidence that he would have submitted that might change the

outcome. Thus, even if the BIA had articulated a new standard, Garay

would still have failed to show prejudice, and thus would not be entitled

to relief. See Padilla-Martinez v. Holder, 770 F.3d 825, 830 (9th Cir.

2014) (“To prevail on a due-process claim, a petitioner must demonstrate

both a violation of rights and prejudice.”).

REYES V. LYNCH 25

As we have explained in Section II B 1, the BIA imposes

the particularity requirement in order to distinguish between

social groups that are discrete and those that are amorphous.

See supra page 17–18. In W–G–R–, the BIA explained that

particularity “chiefly addresses the question of delineation, or

as earlier court decisions described it, the need to put ‘outer

limits’ on the definition of ‘particular social group.’” Matter

of W–G–R–, 26 I. & N. Dec. at 214.11

Although we have recognized that “social visibility” and

“particularity” tend to blend together, we have not merged the

two prongs. Henriquez-Rivas, 707 F.3d at 1090–91. As

noted, we held that “[t]he ‘particularity’ requirement is

separate, and it is relevant in considering whether a group’s

boundaries are so amorphous that, in practice, the persecutor

does not consider it a group.” Id. at 1091. We stated that “the

‘particularity’ consideration is merely one factor as to

11

The BIA referred in its opinion to its decision in Matter of

M–E–V–G, 26 I. & N. Dec. 227, decided the same day. In M–E–V–G, the

BIA explained:

A particular social group must be defined by

characteristics that provide a clear benchmark for

determining who falls within the group. Matter of

A–M–E– & J–G–U–, 24 I. & N. Dec. at 76 (holding

that wealthy Guatemalans lack the requisite

particularity to be a particular social group). It is

critical that the terms used to describe the group have

commonly accepted definitions in the society of which

the group is a part. Id. (observing that the concept of

wealth is too subjective to provide an adequate

benchmark for defining a particular social group).

Id. at 239. The BIA further held that a “group must also be discrete and

have definable boundaries—it must not be amorphous, overbroad, diffuse,

or subjective.” Id.

26 REYES V. LYNCH

whether a collection of individuals is considered to be a

particular social group in practice.” Id.

The BIA’s application of the “particularity” requirement

to Garay’s purported class of “deportees from the United

States to El Salvador” was reasonable. The BIA found that

a proposed class of deportees was too amorphous, overbroad

and diffuse because it included men, women, and children of

all ages, regardless of the length of time they were in the

United States, the reasons for their removal, or the recency of

their removal. Matter of W–G–R–, 26 I. & N. Dec. at 223.

Garay presented scarcely any contrary evidence.12 Viewing

all the evidence, the BIA’s rejection of Garay’s proposed

class was reasonable, if not compelled.

Indeed, the BIA’s determination is supported by case law

declining to recognize much more circumscribed purported

12

Garay’s only testimony in support of his proposed particular social

group of deportees was: “Because almost all the time the people that are

returned from here, or they are deported from here, they stay in detention

for investigation purposes.” However, Garay then qualified his statement

by indicating that the government was most interested in individuals who

have criminal records. In his brief to the BIA, Garay alleged in a footnote

that he “faces a danger of future persecution based on his membership in

a particular social group of deportees from the United States to El

Salvador,” and objects that the IJ “did not address this social group

definition at all.” In the next section of his brief, which addresses his

claim for relief under the CAT, Garay argued that he will be tortured

because he is a former gang member and a deportee. He asserts that

deportees are mistreated upon their return because they are presumed to

be gang members. Taking Garay’s assertions at face value, they do not

support a finding that all deportees from the United States constitute a

“discrete class of persons.” Matter of S–E–G–, 24 I. & N. Dec. at 584.

REYES V. LYNCH 27

groups of deportees.13 Most recently, in Ramirez-Munoz v.

Lynch, 816 F.3d 1226 (9th Cir. 2016), we affirmed the BIA’s

determination that a purported class of “imputed wealthy

Americans” deported to Mexico did not constitute a particular

social group. Citing Henriquez-Rivas, 707 F.3d at 1090, we

held that the proposed group was not “sufficiently particular

that it can be described with passable distinction that the

group would be recognized as a discrete class of persons.”

Ramirez-Munoz, 816 F.3d at 1229.

As in Ramirez-Munoz, the BIA’s rejection of Garay’s

purported class of “deportees from the United States to El

Salvador” is not contrary to our holding in Henriquez-Rivas

that “considerations of diversity of lifestyle and origin” may

not be “the sine qua non of ‘particularity’ analysis.” 707 F.3d

at 1093–94. To go so far would come close to doing away

with the particularity requirement, which was included in the

plain language of the statute enacted by Congress. Aguirre-

Aguirre, 526 U.S. at 419. However, this was not our intent.

Where a petitioner makes a prima facie showing of a

“discrete class of persons,” neither diversity of lifestyle nor

origin will undermine that group. But where, as here, a

petitioner proffers a group that is amorphous rather than

discrete, he can hardly be heard to argue that the BIA may not

consider the proposed group’s lack of cohesion in

determining that it is not particular.

13

See, for example, Delgado-Ortiz v. Holder, 600 F.3d at 1151–52

(holding that “returning Mexicans from the United States” are “too broad”

to qualify as a particular social group); Lizama v. Holder, 629 F.3d 440,

446–48 (4th Cir. 2011) (holding that “deportees with criminal histories”

returning to El Salvador from the United States are “too broad” to

constitute a particular social group).

28 REYES V. LYNCH

Applying the deference due to the BIA’s decision and

reviewing the entire record, we reject Garay’s challenge to

the BIA’s determination that his proposed group of

“deportees from the United States to El Salvador” is not

cognizable.

V

Garay challenges the BIA’s denial of his CAT claim as

based on legal error and on facts not found by the IJ. The

Government responds that substantial evidence supports the

agency’s decision and any error in the BIA’s assessment of

Garay’s CAT claim was invited because he asked the BIA to

undertake plenary review of his CAT claim. We find that the

denial of Garay’s CAT claim was premised on legal error and

vacate the denial of CAT relief.

We review de novo issues of law regarding CAT claims.

Edu v. Holder, 624 F.3d 1137, 1142 (9th Cir. 2010). “The

BIA’s findings underlying its determination that an applicant

is not eligible for relief under the CAT are reviewed for

substantial evidence.” Arteaga, 511 F.3d at 944. Under that

standard, we “uphold[] the BIA’s determination unless the

evidence in the record compels a contrary conclusion.” Id.

Where the BIA conducts its own review of the evidence and

law rather than adopting the IJ’s decision, “our review is

limited to the BIA’s decision, except to the extent that the IJ’s

opinion is expressly adopted.” Hosseini v. Gonzales,

471 F.3d 953, 957 (9th Cir. 2006) (internal quotation marks

omitted).

To qualify for CAT relief, an applicant must show that

“‘it is more likely than not that he . . . would be tortured if

removed . . . .’” Cole v. Holder, 659 F.3d 762, 770 (9th Cir.

REYES V. LYNCH 29

2011) (quoting 8 C. F. R. § 208.16(c)(2)). “Acts constituting

torture are varied, and include beatings and killings.”

Bromfield v. Mukasey, 543 F.3d 1071, 1079 (9th Cir. 2008);

see also Cole, 659 F.3d at 771 (same). An applicant for CAT

relief does not need to show that he would be tortured on

account of a protected ground. Kamalthas v. INS, 251 F.3d

1279, 1283 (9th Cir. 2001); see also Cole, 659 F.3d at 770

(“[T]he provision for deferral of removal under CAT applies

to all applicants, even those who . . . are former gang

members convicted of an aggravated felony.”).

Reviewing Garay’s claim on appeal, the BIA stated that

it reviewed the IJ’s decision for clear error. Matter of

W–G–R–, 26 I. & N. Dec. at 224–26. After reviewing

evidence related to Garay’s claims that he feared torture at

the hands of rival gangs, the police, or clandestine death

squads, id. at 224–25, the BIA concluded that “the

Immigration Judge’s predictive findings with respect to the

respondent’s torture claim are not clearly erroneous.” Id. at

225.

In a footnote, the BIA addressed the IJ’s statement that

the materials “contain little if any information concerning the

treatment of former gang members . . . beyond being killed.”

Id. at 226 n.9. The BIA read the IJ’s statement to reflect not

that the IJ believed killings are not torture, but “[r]ather, the

Immigration Judge held that the evidence was not sufficient

to show a clear probability that the respondent would be

tortured.” Id.

A

We are troubled by the BIA’s conclusion that the IJ’s

“predictive findings with respect to [Garay]’s torture claim

30 REYES V. LYNCH

are not clearly erroneous.” Matter of W–G–R–, 26 I. & N.

Dec. at 225. The BIA did not identify any specific

“predictive findings” in the IJ’s decision. At oral argument,

counsel for the Government was unable to point to any

language in the IJ’s decision that can be read to constitute

“predictive findings.”14

If the BIA was referring to the IJ’s conclusion that Garay

had not established that the El Salvadoran police were

looking for him, the BIA’s conclusion is sound. This,

however, is not enough to support the denial of Garay’s CAT

claim, which also identified gang members and clandestine

death squads as possible sources of feared torture. See Cole,

659 F.3d at 775 (remanding where the BIA failed to

“consider the aggregate risk that Cole would face from police,

death squads, and gangs if returned to Honduras”).

If the “predictive findings” the BIA was referring to

include the IJ’s discounting of Garay’s written description of

the torture he feared at the hands of gang members, this is

problematic for a number of reasons. First, the IJ’s

discounting of Garay’s description of the torture he feared

cannot reasonably be characterized as a “predictive finding.”

Second, the BIA did not acknowledge or correct the IJ’s

apparent disregard of Garay’s written declaration describing

Mara 18’s practice of killing defectors by placing tires around

them and setting them on fire. Garay’s failure to reiterate this

assertion in his testimony does not negate the assertion. See,

e.g., Lai v. Holder, 773 F.3d 966, 971 (9th Cir. 2014) (“It is

14

Before us, the Government does not adopt the BIA’s reading of the

IJ’s statement, but posits that the IJ “apparently meant that the materials

were no more specific than [Garay’s testimony] about how the death of

former gang members might come about.”

REYES V. LYNCH 31

well established that ‘the mere omission of details is

insufficient to uphold an adverse credibility finding.’”

(quoting Singh v. Gonzales, 403 F.3d 1081, 1085 (9th Cir.

2005))); Tekle v. Mukasey, 533 F.3d 1044, 1053 (9th Cir.

2008) (finding legal error where IJ failed to provide the

petitioner with an opportunity to explain a perceived

inconsistency).

Most importantly, however, the BIA’s interpretation of

the IJ’s statement as a “predictive finding” is problematic

because it does not correct the IJ’s inference that killings are

not torture. Whether reviewed for clear error as a factual

finding or reviewed de novo as a question of law or

judgment,15 we cannot read the IJ’s statement as reflecting

anything other than an erroneous view that killings are not

torture.16 Bromfield, 543 F.3d at 1079 (“Acts constituting

torture are varied, and include beatings and killings.”).

The BIA should have acknowledged and corrected the

IJ’s error and remanded the matter to the IJ. See Figueroa v.

15

In Ridore v. Holder, 696 F.3d 907 (9th Cir. 2012), we agreed with

the Third Circuit that the “likelihood of torture” encompasses two

inquiries: “‘(1) what is likely to happen to the petitioner if removed; and

(2) does what is likely to happen amount to the legal definition of torture.”

Id. 915–16 (quoting Kaplun v. Att’y. Gen., 602 F.3d 260, 271 (3d Cir.

2010)). The first is a factual question and subject to clear error review; the

second is a legal question subject to de novo review. Id.

16

Garay alleges in his Reply Brief that the same IJ that heard Garay’s

case concluded in another case that killing is not torture. It appears that

in an unpublished decision, the BIA remanded in light of our opinion in

Bromfield, 543 F.3d 1071, to permit the IJ to conduct further fact-finding

in order to determine “whether the killings at issue in [that] case

constituted torture.” See In re Dionicio Ziranda-Ambriz, File No. A088-

738-879 (BIA Jan. 22, 2013) at 3.

32 REYES V. LYNCH

Mukasey, 543 F.3d 487, 498 (9th Cir. 2008) (reversing and

remanding where the BIA failed to correct an IJ’s legal error).

Further, it appears that the IJ’s error prevented the IJ from

undertaking the necessary review of all the record evidence,

including evidence that former gang members are killed, and

from assessing whether Garay demonstrated a probability that

he would be killed or otherwise tortured.17

B

The Government maintains that, despite the BIA being

generally precluded from undertaking its own fact finding in

the first instance, it could do so on Garay’s appeal because he

requested plenary review of his CAT claim. We reject this

argument.

As the Government concedes, the BIA was not

empowered to undertake the necessary fact finding to decide

17

We also reject the BIA’s alternative basis for denying CAT relief.

The BIA purported to find that there was insufficient evidence of

government acquiescence to any torture by gang members. W–G–R–,

26 I. & N. Dec. at 226; see 8 C. F. R. § 208.18 (defining torture in relevant

part as “pain or suffering . . . inflicted by or at the instigation of or with

the consent or acquiescence of a public official or other person acting in

an official capacity.”). However, the IJ did not make any findings about

acquiescence and the BIA’s own regulations prevent the BIA from making

its own factual findings and require it to remand cases to the IJ if further

fact-finding is needed. 8 C. F. R. § 1003.1(d)(3)(I), (iv). The BIA

followed this principle in the withholding context when it declined to

discuss whether the Salvadoran government was unable or unwilling to

control the Mara 18 gang members because the IJ had not made findings

on it, but oddly, it did not follow the same rule in the CAT context.

Compare W–G–R–, 26 I. & N. Dec. at 224 n.8 with id. at 226.

REYES V. LYNCH 33

Garay’s claim in the first instance.18 Moreover, the invited

error doctrine, which the Government invokes, does not

relieve the agency of its obligation to follow its own

regulations and apply the correct standard of review. Cf.

Amado v. Gonzalez, 758 F.3d 1119, 1133 n.9 (9th Cir. 2014)

(“‘[I]t is one thing to allow parties to forfeit claims, defenses,

or lines of argument; it would be quite another to allow

parties to stipulate or bind us to application of an incorrect

legal standard, contrary to the congressional purpose.’”

(quoting Gardner v. Galetka, 568 F.3d 862, 879 (10th Cir.

2009))); United States v. Lindsey, 634 F.3d 541, 555 (9th Cir.

2011) (“[I]n order for the invited error doctrine to apply, a

defendant must both invite the error and relinquish a known

right.”).

VI

Accordingly, we deny Garay’s petition with respect to his

withholding claims, and grant only with respect to the denial

18

Under 8 C. F. R. § 1003.1(d)(3)(I) and (iv), “(1) the Board will not

engage in de novo review of findings of fact determined by the

immigration judge; and (2) except for the taking of administrative notice

of commonly known facts, the Board will not engage in factfinding in the

course of deciding appeals.” Brezilien v. Holder, 569 F.3d 403, 412 n.3

(9th Cir. 2009); Ridore, 696 F.3d at 911. “Rather, ‘[f]acts determined by

the immigration judge, including findings as to the credibility of

testimony, shall be reviewed only to determine whether the findings of the

immigration judge are clearly erroneous.’” Id. (quoting 8 C. F. R.

§ 1003.1(d)(3)(I)). “[T]he 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.”

Id. at 919. “In contrast to these substantive limitations on factfinding,

‘[t]he Board may review questions of law, discretion, and judgment on all

other issues in appeals from decisions of immigration judges de novo.’”

Brezilien, 569 F.3d at 412 n.3 (quoting 8 C. F. R. § 1003.1(d)(3)(ii)).

34 REYES V. LYNCH

of his application for CAT relief, which we vacate and

remand to allow the agency to reconsider the application for

CAT relief recognizing that killings can constitute torture and

to undertake the requisite fact finding in accordance with the

agency’s regulations.

PETITION FOR REVIEW GRANTED in part and

DENIED in part; denial of CAT relief VACATED and

REMANDED.