Jose Guerra v. William Barr

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 finding that

petitioner established a clear probability that he would be

subjected to torture in criminal detention. The panel

concluded that the Board erred by failing to address the IJ’s

predicate factual findings, based on petitioner’s specific

circumstances, that led to the conclusion that petitioner

would more likely than not be tortured. The panel explained

that while the Board may disagree with the inferences that

the IJ drew, it cannot disregard the IJ’s findings and

substitute its own view of the facts. Rather, it must either

find clear error, explaining why; or, if critical facts are

missing, remand to the IJ.

Lastly, the panel held that the Board’s analysis of the

likelihood of harm was also flawed because it analyzed the

likelihood of harm by Mexican police and officials in mental

4 GUERRA V. BARR

health institutions separately, rather than considering “the

aggregate risk” that petitioner faces if removed.

The panel rejected petitioner’s request for a remand with

instructions to grant CAT relief, and instead remanded for

the Board to reconsider its decision applying the correct

standards.

COUNSEL

Teresa A. Reed Dippo (argued), Munger Tolles & Olson

LLP, San Francisco, California; Keren Zwick, National

Immigrant Justice Center, Chicago, Illinois; Elaine J.

Goldenberg, Munger Tolles & Olson LLP, Washington,

D.C.; Alison Pennington, Centro Legal de la Raza, Oakland,

California; for Petitioner.

Linda Y. Cheng (argued) and Madeline Henley, Trial

Attorneys; Greg D. Mack, Senior Litigation Counsel; Joseph

H. Hunt, Assistant Attorney General; Office of Immigration

Litigation, United States Department of Justice,

Washington, D.C.; for Respondent.

OPINION

PAEZ, Circuit Judge:

Jose Eduardo Guerra (“Guerra”), a citizen and national

of Mexico, petitions for review of an adverse decision by the

Board of Immigration Appeals (“BIA”). At issue is Guerra’s

application for deferral of removal under the Convention

Against Torture (“CAT”). An Immigration Judge (“IJ”)

granted Guerra’s application for deferral of removal under

GUERRA V. BARR 5

CAT, but the BIA reversed. Because the BIA did not

properly review the IJ’s factual findings for clear error, as

required by 8 C.F.R. § 1003.1(d)(3)(i), we grant the petition

and remand for further proceedings.

I.

Guerra entered the United States without inspection

when he was eleven years old to escape severe child abuse,

neglect, and sexual abuse. After joining his father and

stepfamily in the United States, Guerra was placed in special

education classes, was diagnosed with a seizure disorder,

and started taking anti-seizure medication. Following high

school, and because he could not live on his own, Guerra was

placed in a private, single-family dwelling for mentally

disabled individuals in Bakersfield, California. In late June

2013, he was arrested for engaging in lewd and lascivious

acts with a boy in the home.

Guerra was found incompetent to stand trial and was

referred to a program for evaluation, psychiatric treatment,

and restoration of competence. In August 2014, he was

diagnosed with psychosis and began taking antipsychotic

medication while he underwent treatment to gain trial

competency. He was deemed competent to stand trial in

September 2015, shortly after which he pleaded guilty to one

count of violating California Penal Code § 288(a). The trial

court sentenced him to three years’ imprisonment. While

serving his sentence, Guerra started to exhibit

“bizarre/disruptive behavior” and to experience auditory

hallucinations. He was taken into immigration custody

following his incarceration at Wasco State Prison, where he

was served with an immigration warrant and a notice to

appear.

6 GUERRA V. BARR

The Department of Homeland Security (“DHS”) charged

Guerra with removability under 8 U.S.C. § 1182(a)(6)(A)(i)

(presence in the United States without admission or parole)

and 8 U.S.C. § 1182(a)(2)(A)(i)(I) (conviction of a crime

involving moral turpitude). At his first immigration court

hearing in June 2016, the IJ found, based on a preponderance

of evidence, that Guerra was incompetent to represent

himself and ordered appointment of a representative. 1

Guerra, through appointed counsel, applied for deferral

of removal under CAT. He 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. Under either

scenario, Guerra argued, it was more likely than not that he

would be tortured. In support of his application, Guerra

submitted a psychological evaluation and mental health

records; Mexican court records; letters from his family

describing his past abuse, lack of support in Mexico, and his

inability to work or care for himself; and multiple country

condition reports and news articles about widespread abuse

of individuals with mental illnesses in Mexican jails and

mental health facilities. Because Guerra had competency

issues and was seeking only deferral of removal under CAT,

1

While in immigration custody, Guerra was informed of his

membership in the class certified in Franco-Gonzalez v. Napolitano, No.

10-cv-2211, 2011 WL 11705815 (C.D. Cal. Nov. 21, 2011). Because a

qualified mental health provider determined that Guerra had a serious

mental disorder as defined in Franco-Gonzalez—in his case,

schizophrenia, developmental delay, and intellectual disorder

dementia—Guerra was entitled to a competency hearing and the

possibility of appointed counsel, see Franco-Gonzalez v. Holder, 2014

WL 5475097, at *8 (C.D. Cal. Oct. 29, 2014).

GUERRA V. BARR 7

the IJ granted Guerra’s motion for safeguards and waived his

testimony.

In August 2017, the IJ issued her decision granting

Guerra deferral of removal under CAT. The IJ concluded

that CAT protection was warranted because of Guerra’s

specific circumstances, which made it more likely than not

that he would be harmed by police or government officials

working in psychiatric institutions in Mexico. She also

relied on the documented conditions in Mexico regarding the

discrimination against people with disabilities and treatment

of those in criminal custody and psychiatric institutions that

qualifies as torture. The IJ also concluded that Guerra could

not safely and reasonably relocate to avoid torture by police

or government officials due to the widespread nature of the

violence.

DHS appealed the IJ’s grant of CAT deferral, which the

BIA sustained. The BIA disagreed with the IJ’s

determination that Guerra would be subject to torture in

either criminal detention or mental health institutions in

Mexico. Guerra timely petitioned for review of the BIA’s

vacatur of CAT deferral.

II.

We have jurisdiction to review final orders of removal

under 8 U.S.C. § 1252(a)(1) and to review CAT claims that

were denied on the merits. See Pechenkov v. Holder,

705 F.3d 444, 448 (9th Cir. 2012).

“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 the IJ’s

opinion is expressly adopted.” Rodriguez v. Holder,

683 F.3d 1164, 1169 (9th Cir. 2012) (quotations omitted).

8 GUERRA V. BARR

We review factual findings for substantial evidence and legal

questions de novo. Ridore v. Holder, 696 F.3d 907, 911 (9th

Cir. 2012). “Whether the BIA has applied the correct

standard of review is a question of law.” Id.

III.

Guerra challenges the BIA’s decision on two grounds,

both of which raise essentially the same issue—whether the

BIA applied the correct standard when reviewing the IJ’s

factual findings related to Guerra’s CAT deferral

application. “The governing regulations explicitly state that

the BIA shall not ‘engage in de novo review of findings of

fact determined by an immigration judge.’” Id. (quoting

8 C.F.R. § 1003.1(d)(3)(i)). Instead, “[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.” 8 C.F.R. § 1003.1(d)(3)(i). “Where the BIA

engages in de novo review of an IJ’s factual findings instead

of limiting its review to clear error, it has committed an error

of law.” Ridore, 696 F.3d at 911 (quoting Rodriguez,

683 F.3d at 1170). “Further, the BIA may ‘not engage in

factfinding in the course of deciding appeals.’” Id. (quoting

8 C.F.R. § 1003.1(d)(3)(iv)).

Guerra argues that the BIA failed to apply clear error

review in two ways: when rejecting the IJ’s determination

that Mexican health care workers act with specific intent to

harm mental health patients, and when rejecting the IJ’s

determination that it is more likely than not that Guerra faces

a clear probability of being tortured in criminal detention.

We agree with him on both grounds. Moreover, we

distinguish Guerra’s situation from that in Villegas v.

Mukasey, 523 F.3d 984 (9th Cir. 2008), for the reasons

discussed below.

GUERRA V. BARR 9

A.

The essence of Guerra’s CAT application is that he faces

a more than fifty percent chance of being tortured if removed

to Mexico because of his particular circumstances and the

treatment of similarly situated individuals in that country.

See 8 C.F.R. § 208.16(c)(2). In considering a CAT

application, the IJ and BIA must consider “all evidence

relevant to the possibility of future torture,” Cole v. Holder,

659 F.3d 762, 770 (9th Cir. 2011) (quoting 8 C.F.R.

§ 1208.16(c)(3)), and must “consider the aggregate risk that

[the applicant] would face,” id. at 775.

The implementing regulations define torture as “any act

by which severe pain or suffering, whether physical or

mental, is intentionally inflicted on a person for such

purposes as . . . punishing him or her . . . or for any reason

based on discrimination of any kind . . . [by] or with the

consent or acquiescence of a public official . . . .” 8 C.F.R.

§ 208.18(a)(1). “Government acquiescence does not require

actual knowledge or willful acceptance of torture; awareness

and willful blindness will suffice.” Aguilar-Ramos v.

Holder, 594 F.3d 701, 705–06 (9th Cir. 2010). A petitioner

must show, however, that “severe pain or suffering was

specifically intended—that is, that the actor intend the actual

consequences of his conduct, as distinguished from the act

that causes these consequences.” Villegas, 523 F.3d at 989.

As we have noted, the regulations “preclude [the BIA]

from reviewing an IJ’s factual findings de novo.” Zumel v.

Lynch, 803 F.3d 463, 475 (9th Cir. 2015). Under this

scheme, the BIA may only review the IJ’s factual findings to

determine whether they are clearly erroneous. Id. Clear

error review means that “the BIA may not make its own

findings or rely ‘on its own interpretation of the facts.’” Id.

(citation omitted). Instead, the BIA may find an IJ’s factual

10 GUERRA V. BARR

finding to be 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, 683 F.3d

at 1170 (quoting Anderson v. Bessemer City, 470 U.S. 564,

577 (1985)). 2 Importantly, the BIA may not reverse an IJ’s

finding “simply because it is convinced that it would have

decided the case differently.” Id. at 1171 (quoting Anderson,

470 U.S. at 573). “Where there are two permissible views

of the evidence, the [IJ]’s choice between them cannot be

clearly erroneous.” Anderson, 470 U.S. at 574.

The government defends the BIA’s decision in this case,

pointing out how the BIA stated it found clear error no fewer

than four times in the course of reviewing the IJ’s factual

findings. We reemphasize that “[w]e do not rely on the

[BIA]’s invocation of the clear error standard; rather, when

the issue is raised, our task is to determine whether the BIA

faithfully employed the clear error standard or engaged in

improper de novo review of the IJ’s factual findings.” Vitug

v. Holder, 723 F.3d 1056, 1063 (9th Cir. 2013) (quoting

Rodriguez, 683 F.3d at 1170) (alteration in Vitug).

B.

First, we consider the BIA’s rejection of the IJ’s finding

of specific intent to torture by Mexican officials in mental

health institutions. Whether government officials act with

specific intent to torture is a question of fact that is subject

to clear error review. See Ridore, 696 F.3d at 916–17.

2

The Supreme Court’s decision in Anderson has guided our

understanding of the clear error standard. See Rodriguez, 683 F.3d

at 1171; see also United States v. Hinkson, 585 F.3d 1247, 1262 (9th Cir.

2009) (en banc).

GUERRA V. BARR 11

The IJ found that government officials would

intentionally inflict harm on Guerra for a proscribed

purpose. In reaching that conclusion, the IJ made predicate

factual findings, based on extensive record evidence

documenting that: (1) individuals like Guerra face

widespread systemic discrimination on the basis of their

disabilities; (2) the Mexican government does not enforce

laws that prohibit discrimination against those with

disabilities in employment, education, and in the provision

of services; (3) the Mexican criminal justice system

frequently denies persons with mental disabilities the right

to make their own legal decisions and frequently subjects

them to arbitrary detention during legal proceedings;

(4) individuals with disabilities are provided health care

services only within institutions, where they are segregated

from the rest of the community and have no right to make

basic daily decisions; and (5) employees of mental health

institutions carry out actions—including the use of

permanent physical restraints, physical and sexual abuse,

and heavy sedation to control the patients’ behavior—that

qualify as torture under CAT and sometimes cause death. 3

The BIA assumed without deciding that Guerra faces a

likelihood of being institutionalized in a Mexican mental

health institution. But it rejected the IJ’s finding of specific

3

As the IJ noted, Guerra submitted extensive documentation of

country conditions in Mexico. The IJ relied particularly on: the State

Department’s Mexico 2016 Human Rights Report; a 2013 report from

the United Nations Special Rapporteur on Torture that focused on

practices in health care settings; reports from an advocacy group,

Disability Rights International (“DRI”), documenting their findings in

Mexico; a New York Times article about DRI’s 2010 report; news articles

about difficulties faced by deportees, homeless individuals, and those

with mental illness in Mexico; and reports from Amnesty International,

Human Rights Watch, and other sources regarding torture in Mexico.

12 GUERRA V. BARR

intent, noting “there is insufficient record evidence from

which it is reasonable to conclude that health care workers

implement such [primitive and abusive] practices for the

specific purpose of inflicting harm on the patients.” Instead,

the BIA accorded more weight to country reports in the

record that the extreme measures were taken as a misguided

effort to prevent patients from harming themselves or others.

Citing Villegas, 523 F.3d at 989, and Chavarin v. Sessions,

690 F. App’x 924, 926 (9th Cir. 2017), the BIA also rejected

Guerra’s argument that specific intent could be inferred from

the fact that these practices continue to persist despite years

of condemnation from the international community,

attributing the persistence of these problems to “the

difficulties inherent in addressing a complex public policy

issue with insufficient material resources.” This was not

clear error review for multiple reasons.

First, “a ‘conclusory pronouncement’ that the IJ has

erred is insufficient[] . . . .” Zumel, 803 F.3d at 475 (quoting

Vitug, 723 F.3d at 1063). The BIA failed to “address

whether the IJ clearly erred in making the key factual

findings on which she based her conclusion regarding

[Mexican government officials’] intent,” id. at 476, such as

the continued patterns of discrimination against individuals

with disabilities, or the segregation of those individuals from

the general community. In fact, the BIA did not even

acknowledge these findings. “The BIA’s failure to evaluate

the ‘factual findings of the IJ that were key to the IJ’s

holding,’ indicates the BIA was not reviewing the IJ’s

determination for clear error.” Id. (quoting Vitug, 723 F.3d

at 1064).

The government defends the BIA’s rejection of the

finding of specific intent by Mexican officials to punish

patients by arguing that it lacked adequate record support.

GUERRA V. BARR 13

This is plainly belied by the IJ’s decision and the record. The

IJ cited various reports from the international advocacy

group, DRI, which describe the practices in the mental health

facilities as punishment and torture, and incorporate findings

by the United Nations Special Rapporteur on Torture that

treatment such as the use of prolonged restraints and forced

medication may constitute torture. 4

Second, the clear error standard does not allow the BIA

to reweigh the evidence when the IJ’s account of the

evidence is plausible. See Rodriguez, 683 F.3d at 1171

(discussing Anderson, 470 U.S. at 573–74). The IJ

acknowledged and rejected the alternative explanation that

mental health officials’ actions can be explained by gross

negligence and a misunderstanding of the nature of

psychiatric illness. On appeal, the BIA stated that it

“accord[ed] more weight to country reports in the record that

[the IJ] did not find persuasive.” But the BIA cannot reverse

the IJ’s factual finding “even though [it is] convinced that

had it been sitting as the trier of fact, it would have weighed

the evidence differently.” Anderson, 470 U.S. at 574.

The government appears to argue that evidence of

primitive and abusive practices on mental health patients

categorically is insufficient to support an inference of

specific intent to inflict harm, relying heavily on our decision

in Villegas. This overstates our prior holding. In Villegas,

the IJ denied CAT relief because he found that the petitioner

showed no evidence of specific intent to torture, and the BIA

affirmed that denial. 523 F.3d at 986–87. We agreed with

4

As an example, one DRI report found that “beatings were a

common form of punishment used by administrators” at a facility, and

“individuals who managed to escape were tracked down and forcibly

returned to the institution where they suffered further punishment.”

14 GUERRA V. BARR

the IJ that a petitioner must show specific intent for purposes

of CAT relief. Id. at 989. We were not compelled to reverse

the underlying factual findings because we found nothing in

the record that indicated specific intent where there was also

evidence of the Mexican government’s desire to improve

conditions. Id. at 987–89. In Guerra’s case, the IJ made a

factual finding on the basis of record evidence that there is

specific intent to torture, so Villegas has limited application. 5

Critically, the IJ found that Guerra submitted sufficient

evidence to show that he would be harmed for a proscribed

purpose and explicitly distinguished this case from Villegas.

Third, in providing an alternative reason why these

practices persist in Mexico despite international

condemnation, the BIA appears to engage in impermissible

factfinding. See Brezilien v. Holder, 569 F.3d 403, 413 (9th

Cir. 2009) (“[T]he BIA may not engage in factfinding to

resolve an appeal . . . .”). While lack of material resources

and other bureaucratic concerns provide plausible

explanations for the persistence of problems in Mexican

mental health institutions, the IJ did not make such a finding.

Critically, the BIA did not explain why the IJ’s findings were

illogical, implausible, or not supported by permissible

inferences from the record. See Rodriguez, 683 F.3d at 1170.

Thus, we have no trouble concluding that the BIA failed to

apply clear error review to the IJ’s finding of specific intent.

5

For similar reasons, the government’s reliance on Chavarin, a non-

precedential memorandum, is also unpersuasive because the IJ in that

case denied CAT deferral and our holding was simply that substantial

evidence supported the IJ’s finding of no specific intent. See 690 F.

App’x at 926. Villegas and Chavarin do not support the BIA’s decision

in this case, where the IJ made different findings on the unique record

before her.

GUERRA V. BARR 15

C.

We next turn to the IJ’s finding that Guerra is likely to

be tortured in criminal detention in Mexico. 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. See Ridore, 696 F.3d at 915, 918–19.

In reaching her conclusion, the IJ made predicate factual

findings including: (1) Guerra’s “abnormal behavior” will

attract the attention of Mexican police; (2) Guerra will be

homeless because his family cannot support him from the

United States; (3) police target for arrest those who are

homeless and have mental health conditions; and

(4) Mexican police nationwide torture those whom they

arrest and detain. In addition to citing the country conditions

described above, see supra at 2 n.3, the IJ also relied on

family letters and the psychological evaluation in the record.

The BIA assumed without deciding that Guerra will face

criminal detention but disagreed with the IJ’s finding that he

will face a clear probability of being tortured as a result. It

acknowledged record evidence of harsh conditions in

Mexican prisons but stated that it “d[id] not find that a

dysfunctional prison system in itself equates to or requires a

grant of protection under [CAT] to detainees generally who

are in the system.” In other words, although the BIA

acknowledged there was a possibility that Guerra would be

subjected to harm amounting to torture as a detainee, it

concluded that the general possibility of torture does not

meet the burden of establishing that Guerra individually will

be targeted for torture. Again, we hold this does not satisfy

clear error review.

First, the BIA’s reasoning “misapprehends and thus

misstates the totality of the IJ’s findings and conclusions.”

16 GUERRA V. BARR

Ridore, 696 F.3d at 918. Just as in Ridore, “[t]he IJ did not

find that [Guerra] was likely to be tortured just because there

were ‘acts of torture in [Mexico]’s prisons.’” Id. In other

words, the IJ did not simply infer from a finding that torture

occurs generally in Mexico to a finding that Guerra will

likely be tortured. Rather, the IJ inferred that Guerra’s

specific circumstances—namely, his diagnoses for

schizophrenia and seizure disorder—make him likely to

attract attention of the police. The IJ also relied on extensive

letters from Guerra’s family and a psychological evaluation

to find that he would become homeless because he cannot

care for himself. Against the backdrop of country condition

evidence about Mexican police targeting those who are

homeless and have mental health conditions, the IJ inferred

that Guerra would come into their custody and be tortured as

others have been in criminal detention. While the BIA may

disagree with the inferences that the IJ drew, it failed to

address the IJ’s predicate factual findings and simply

asserted that Guerra did not meet his burden. See Ridore,

696 F.3d at 919. “[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.

Additionally, it is evident that “the BIA failed to grapple

with the evidentiary record,” id., which includes various

articles about the vulnerability of certain populations to

which Guerra belongs, such as three reports discussing how

people with mental illnesses are discriminated against and

are at greater risk of abuse in the criminal justice system.

While the government correctly points out that the IJ did not

cite any individualized country conditions evidence

demonstrating that the mentally ill or intellectually disabled

are specifically targeted for torture in detention, this was a

permissible inference from the record evidence about the

GUERRA V. BARR 17

discrimination that these individuals face in the criminal

justice system. It is incumbent on the BIA to explain how

the IJ’s finding is illogical, implausible, or not supported by

permissible inferences from the record. See Rodriguez,

683 F.3d at 1170.

Lastly, we note that the BIA’s analysis of the likelihood

of harm was also flawed because it analyzed the likelihood

of harm by Mexican police and officials in mental health

institutions separately. The BIA errs when it does not

consider “the aggregate risk” that a petitioner faces if

removed. Cole, 659 F.3d at 775. Guerra “need not prove

that each group, treated individually, would more likely than

not torture him.” Id. “Rather, he must establish that, taking

into account all possible sources of torture, he is more likely

than not to be tortured, by or with the consent or

acquiescence of the government, if returned to [Mexico].”

Id. Thus, “[t]he BIA erred by treating each potential source

of torture individually, never assessing [Guerra]’s overall

risk of being tortured.” Id.

D.

Because the BIA applied the wrong legal standard to

Guerra’s claim, “the appropriate relief from this court is

remand for reconsideration under the correct standard. . . .”

Ornelas-Chavez v. Gonzales, 458 F.3d 1052, 1058 (9th Cir.

2006). Guerra argues that despite this ordinary remand rule,

we should direct the BIA to grant CAT relief on remand

because the agency has already fully considered the CAT

claim and erroneously denied relief based on a misreading

of the record. The cases Guerra cites, however, are not

analogous to his situation. See Avendano-Hernandez v.

Lynch, 800 F.3d 1072, 1075, 1082 (9th Cir. 2015)

(remanding for grant of relief because BIA’s error

constituted a factual confusion over the definition of

18 GUERRA V. BARR

transgender identity, not a legal error involving the standard

of review); Edu v. Holder, 624 F.3d 1137, 1147 (9th Cir.

2010) (same where it was uncontested that petitioner was

tortured in Nigeria for her participation in political activities,

and the BIA erroneously concluded that she could avoid

torture by refraining from exercising her political rights).

Unlike in Avendano-Hernandez and Edu, the BIA’s legal

error here is not isolated to an aspect of Guerra’s CAT claim

that would lead us to grant relief outright. Where the BIA

failed to apply the proper standard of review, we have

generally vacated the agency’s decision and remanded for

the BIA to apply the appropriate standard of review. See

Reyes v. Lynch, 842 F.3d 1125, 1142–43 (9th Cir. 2016);

Zumel, 803 F.3d at 476–77; Ridore, 696 F.3d at 919, 922;

Rodriguez, 683 F.3d at 1177; Brezilien, 569 F.3d at 414; but

see Vitug, 723 F.3d at 1064. 6

Although we do not remand to grant relief, we do note

that many facts in Guerra’s case are not in dispute. Cf.

Estrada-Martinez v. Lynch, 809 F.3d 886, 897–98 (7th Cir.

2015) (noting undisputed facts). For instance, the BIA did

not question the veracity of evidence about Guerra’s mental

6

Guerra’s situation is also distinguishable from Vitug, where we

decided that remand for reconsideration was unnecessary because there

was no dispute that petitioner belonged to a protected particular social

group of gay men from the Philippines, and he was presumed eligible for

withholding of removal on the basis of a showing of past persecution.

723 F.3d at 1060, 1064–65. The government failed to rebut that

presumption, leading us to conclude that “no reasonable factfinder”

could come to a different conclusion regarding the grant of withholding.

Id. at 1065–66. Conversely, Guerra has not testified to past instances of

harm or torture, at least as it relates to his CAT application. See Singh v.

Whitaker, 914 F.3d 654, 663 (9th Cir. 2019) (“Relevant considerations

for a CAT claim include evidence of past torture inflicted upon the

applicant[] . . . .”).

GUERRA V. BARR 19

health conditions and incapacity to take care of himself. The

IJ found, and the BIA did not challenge, that Guerra will

likely become homeless in Mexico and attract the attention

of police or be institutionalized, or both, due to his

“abnormal behavior,” and that Guerra cannot safely and

reasonably relocate within Mexico. The IJ found, and the

BIA agreed, that there is evidence of regressive, primitive,

and extremely harmful practices in Mexican mental health

institutions, as well as evidence of harsh conditions and harm

amounting to torture against detainees in Mexican prisons.

All these findings appear cogent and well supported by

evidence in the record. We nonetheless remand this case to

the BIA to apply clear error review.

IV.

For the reasons set forth above, we grant the petition for

review, vacate the BIA’s decision, and remand for further

proceedings consistent with this opinion.

PETITION GRANTED AND REMANDED.