Delfina Soto-Soto v. Merrick Garland

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DELFINA SOTO-SOTO, No. 20-70587

Petitioner,

Agency No.

v. A209-406-355

MERRICK B. GARLAND, Attorney

General, OPINION

Respondent.

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted January 11, 2021

San Francisco, California

Filed June 11, 2021

Before: J. CLIFFORD WALLACE and MILAN D.

SMITH, JR., Circuit Judges, and JANE A. RESTANI, *

Judge.

Opinion by Judge Milan D. Smith, Jr.;

Partial Concurrence and Partial Dissent by Judge Wallace

*

The Honorable Jane A. Restani, Judge for the United States Court

of International Trade, sitting by designation.

2 SOTO-SOTO V. GARLAND

SUMMARY **

Immigration

Granting Delfina Soto-Soto’s petition for review of a

decision of the Board of Immigration Appeals’ reversing an

immigration judge’s grant of deferral of removal under the

Convention Against Torture, and remanding for the Board to

grant CAT relief, the panel held that the Board erred by

reviewing the IJ’s decision de novo, rather than for clear

error, and concluded that the record compelled the

conclusion that Soto-Soto met her burden of proof to

establish that it is more likely than not that she will suffer

future torture if removed to Mexico.

Michoacán state police arrested and brutally tortured

Soto-Soto until she confessed to the kidnapping and murder

of a five-year old boy. After the Mexican trial court

dismissed the charges against her as a result of due process

errors during the investigation, she fled to the United States.

Mexican prosecutors subsequently conducted a new

investigation and filed new charges against Soto-Soto,

INTERPOL put out a Red Notice for her extradition to

Uruapan in Michoacán, Mexico, which is 67 miles from

where Soto-Soto was tortured in Morelia, Michoacán.

Relying on Soto-Soto’s past torture, her reporting of the

torture to the Michoacán State Commission of Human

Rights despite warnings not to do so, the reissued arrest

warrant, and country condition evidence showing that

indigenous women like Soto-Soto are particularly

**

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

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

SOTO-SOTO V. GARLAND 3

vulnerable to torture, the IJ held that Soto-Soto was more

likely than not to be tortured again if removed to Mexico.

The Board reversed and held that the IJ’s determination was

clearly erroneous because he did not acknowledge the

Mexican judicial system’s appropriate steps to correct past

due process errors, that Soto-Soto was not harmed while in

custody for eight months after reporting the torture, and that

members of Soto-Soto’s family remain in Mexico

unharmed.

The panel concluded that the Board’s decision reflected

that it engaged in a de novo weighing of the evidence, rather

than clear error review. The panel explained that the Board

may find an IJ’s factual finding to be clearly erroneous if it

is illogical or implausible, or without support in inferences

that may be drawn from the facts in the record, but in this

case, the Board failed to explain how the IJ’s decision was

illogical, implausible, or without support.

The panel’s majority also concluded that the Board’s

view of the evidence was not supported by the record. First,

the majority wrote that the record emphatically did not show

that the Mexican court took steps to cure the due process

errors caused by the state police officers torturing a

confession out of Soto-Soto. Further, the majority wrote that

even if the record supported the Board’s factual findings,

that would not be enough to overturn the IJ’s decision under

clear error review, because the IJ’s predictive finding as to

the likelihood of torture is entitled to broad deference, which

the Board failed to provide. Second, the majority wrote that

because Soto-Soto’s human rights commission complaint

was not filed until after she was released from custody, and

nothing in the record suggested that the state police officers

were aware of her report, Soto-Soto’s physical safety while

in custody was not probative of the state police officers’

4 SOTO-SOTO V. GARLAND

intent to carry out their threat of future torture. Finally, the

majority wrote that the lack of harm to Soto-Soto’s family

was irrelevant because threats of such harm hinged on Soto-

Soto’s return to Mexico, which had not yet occurred. The

panel also observed that the Board failed to discuss the IJ’s

other key factual findings, including country condition

reports establishing that indigenous women are more likely

to be tortured in Mexico than other groups.

Reviewed under the proper standard of review, the

majority concluded that the IJ’s decision was not clearly

erroneous, and that the record compelled the conclusion that

Soto-Soto met her burden of proof to establish that it is more

likely than not that she will suffer future torture if removed

to Mexico. The majority remanded the petition to the Board

with the direction to grant deferral of removal.

Concurring in part and dissenting in part, Judge Wallace

agreed that the Board impermissibly applied de novo review

in reversing the IJ’s grant of relief. However, Judge Wallace

wrote that he believes that the IJ erred in the likelihood of

future torture analysis, and he relatedly disagreed with the

majority’s and IJ’s conflation of the various Mexican law

enforcement actors in the state of Michoacán into a unitary

actor—i.e., the Michoacán state police—in assessing the

likelihood of torture. Judge Wallace also highlighted that

the IJ found Soto-Soto was ineligible for asylum and

withholding of removal because there are serious reasons to

believe that she did, in fact, kidnap and murder the child

when his family refused to pay the demanded ransom. Judge

Wallace believed that her likely guilt should have been

considered as well because her original criminal case was

not dismissed due to factual innocence but due process errors

that have been corrected. Judge Wallace concluded that the

majority’s direction to the Board to grant CAT relief rather

SOTO-SOTO V. GARLAND 5

than reversing and remanding the petition to the Board for

further consideration goes against the court’s ordinary

practice, especially because the record did not compel the

conclusion that Soto-Soto satisfied her burden of proof.

COUNSEL

Hector A. Vega-Reyes (argued), Public Defender’s Office,

San Francisco, California, for Petitioner.

Jeff Beelaert (argued) and Virginia Lum, Trial Attorneys;

Justin Markel, Senior Litigation Counsel; Ethan P. Davis,

Acting Assistant Attorney General; Office of Immigration

Litigation, Civil Division, United States Department of

Justice, Washington, D.C.; for Respondent.

OPINION

M. SMITH, Circuit Judge:

Petitioner Delfina Soto-Soto was brutally tortured by

Mexican state police until she confessed to the kidnap and

murder of five-year-old Bernardino Bravo Gomez. After the

Mexican trial court dismissed the charges against her due to

lack of evidence of the crimes charged, she fled to the United

States. Mexican prosecutors subsequently refiled the

charges against Soto-Soto, INTERPOL put out a Red Notice

for her extradition to Mexico, and the Department of

Homeland Security (DHS) placed her in removal

proceedings. The Immigration Judge (IJ) granted deferral of

removal under the Convention Against Torture (CAT) based

on a factual finding that Soto-Soto was more likely than not

to be tortured again if removed to Mexico. The Board of

6 SOTO-SOTO V. GARLAND

Immigration Appeals (BIA) reversed the grant of CAT relief

and ordered Soto-Soto removed. Soto-Soto appealed. We

vacate the BIA’s order and remand with instructions to grant

relief.

FACTUAL AND PROCEDURAL BACKGROUND

Delfina Soto-Soto is a 42-year-old indigenous woman

from Uruapan, a city in the Mexican state of Michoacán. On

April 20, 2012, Michoacán state police—in plainclothes and

driving unmarked vehicles—arrested Soto-Soto at her home

in Uruapan for allegedly kidnapping and murdering

Bernardino. The police drove her to Morelia, a town

approximately two hours away from Uruapan. She initially

denied any involvement in the kidnapping.

Michoacán state police brutalized her for hours.

According to Soto-Soto’s testimony, the police first grabbed

her by her hair and threw her to the ground. While she was

on the ground, they tied her hands behind her back, placed

her face-up, and kicked her repeatedly. One officer held her

head between his knees while the others poured water into

her nose and punched her stomach. The officers then put a

plastic bag over her head and sat on her stomach so that she

was unable to breathe, all the while calling her a “fucking

bitch.”

The torture continued to escalate as Soto-Soto refused to

admit involvement in the kidnapping. The police officers

slapped her face, threw her to the ground, tied the plastic bag

over her head until she was at the point of suffocation, and

then repeated the sequence for hours. Next, the officers sat

her in a chair and hit her head against the wall. One officer

pointed a gun at her head several times, telling her that if she

did not sign a confession, they would “keep [her] right there

like a bitch.” Still, with the gun pressed against her forehead,

SOTO-SOTO V. GARLAND 7

Soto-Soto did not relent. Finally, as relayed in Soto-Soto’s

testimony, one of the officers told Soto-Soto, “[I]f you don’t

sign this [confession] in the next 15 minutes, I will give the

order for them to go get your daughters and bring them here,

first they will rape them and then they will kill them in front

of you.” At that point, Soto-Soto signed the confession. The

officers also told her that she would be tortured again if she

reported their acts to anyone.

Soto-Soto was held in custody in Uruapan for the next

eight months and was not tortured again. On December 10,

2012, the Mexican court dismissed the charges for lack of

evidence and released Soto-Soto from custody. Upon her

release, Soto-Soto immediately fled to the United States. On

December 19, 2012, the Michoacán State Human Rights

Commission filed a complaint about the torture on Soto-

Soto’s behalf, but it was dismissed two days later because

Soto-Soto did not provide an address where she could be

contacted.

In 2013, the Government renewed its investigation of

Soto-Soto and secured an arrest warrant after presenting

testimony of sixteen witnesses to the Mexican trial court.

Soto-Soto contends that these witnesses’ testimony also

underlay the first prosecution, and that the witnesses are

individuals from her village who believe that she is a witch.

On November 12, 2015, INTERPOL issued a Red Notice for

Soto-Soto, which called for her return to the state of

Michoacán. She was taken into custody from her workplace

in Madera, CA on November 28, 2017.

After a multi-day hearing, the IJ found that Soto-Soto

was credible and accorded her testimony full evidentiary

weight. The IJ further held that Soto-Soto was statutorily

ineligible for asylum, withholding of removal under the

INA, and withholding of removal under the CAT because

8 SOTO-SOTO V. GARLAND

the warrant for her arrest in the second investigation

provided “serious reasons to believe” that she committed a

“serious nonpolitical crime” before arriving in the United

States.

The IJ also considered whether Soto-Soto was eligible

for deferral of removal under CAT, concluding that the

alleged serious nonpolitical crime did not bar her from this

remedy. In order to obtain deferral of removal, Soto-Soto

had the burden to show that it was more likely than not that

she would be tortured with government involvement or

acquiescence if removed to Mexico. 8 C.F.R.

§§ 1208.16(c)(2), 1208.17(a).

In the IJ’s evaluation of the likelihood of future torture,

the IJ first found that Soto-Soto had suffered torture at the

hands of Michoacán state police from the Office of Anti-

Kidnapping and Extortions. Based on the reissued arrest

warrant in the second prosecution, the IJ further found that

it was more likely than not that Soto-Soto would be stopped

by authorities upon her return and taken back into custody.

The IJ noted that country condition evidence for Mexico

documents that indigenous women like Soto-Soto are

particularly vulnerable to torture. Finally, the IJ determined

that the fact that Soto-Soto reported the previous torture to

the Michoacán State Commission of Human Rights also

makes it more likely that she will be tortured—the state

police officers specifically threatened her with this. Based

on these facts, the IJ found that Soto-Soto had satisfied her

burden to show that she would likely suffer torture with

government involvement or acquiescence if removed to

Mexico. The Government appealed.

The BIA reversed the IJ’s grant of deferral of removal

under CAT. The BIA held that the IJ’s findings were clearly

erroneous because he did not acknowledge the Mexican

SOTO-SOTO V. GARLAND 9

judicial system’s appropriate steps to correct past due

process errors, that Soto-Soto was not harmed while in

custody for 8 months after reporting the torture, and that

members of Soto-Soto’s family remain in Mexico

unharmed.

With respect to the first alleged error, the BIA further

wrote, “[T]he Immigration Judge clearly erred in finding that

the Mexican authorities ‘reinitiated the prosecution against

the Respondent,’ without acknowledging that the Mexican

judicial system excluded the evidence obtained through

torture and conducted a new investigation that independently

resulted in the current charges against the respondent.”

Furthermore, the BIA stated, “The Immigration Judge

clearly erred in finding that the respondent’s HRC complaint

was dismissed on a technicality (IJ at 9); the respondent

testified that she did not attempt to pursue the claim or

contact the HRC after she was released and departed the

country.” 1 For these reasons, the BIA held that the IJ

committed clear error and reversed the IJ’s grant of CAT

deferral of removal. Soto-Soto appealed.

On appeal, Soto-Soto contends that—though the BIA’s

opinion says it reviews the IJ’s finding under the clear error

standard—the substance of the BIA opinion improperly

engages in de novo review. We agree.

1

It is undisputed that HRC did not file Soto-Soto’s complaint of

torture until after she was released from custody, meaning that while

Soto-Soto was in custody, the state police were not aware that she had

disclosed the torture.

10 SOTO-SOTO V. GARLAND

STANDARD OF REVIEW

“Whether the BIA has applied the correct standard of

review is a question of law” that we review de novo.

Rodriguez v. Holder, 683 F.3d 1164, 1169 (9th Cir. 2012).

ANALYSIS

A.

The parties agree that the BIA ought to have reviewed

the IJ’s factual findings for clear error. As this court has

stated:

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, as our sister circuits have

recognized, and we have no difficulty in

agreeing with that conclusion. We do not rely

on the Board’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.

Rodriguez v. Holder, 683 F.3d 1164, 1170 (9th Cir. 2012)

(citations and footnote omitted).

To determine whether “the BIA faithfully employed the

clear error standard,” courts look at the BIA’s reasoning for

reversing the IJ’s decision. Id. “The BIA may find an IJ’s

factual finding to be clearly erroneous if it is illogical or

implausible, or without support in inferences that may be

drawn from the facts in the record.” Id. at 1170 (internal

SOTO-SOTO V. GARLAND 11

quotation marks omitted). Where the BIA does not address

the “key factual findings” on which the IJ based its

conclusion, that strongly suggests that the BIA did not

faithfully engage in clear error review. Zumel v. Lynch,

803 F.3d 463, 475, 476 (9th Cir. 2015).

Furthermore, if it appears that the BIA gave more weight

to certain facts in the record than to others, leading to a

different conclusion from the IJ, our court may justifiably

infer that the BIA applied the wrong standard of review. See

Guerra v. Barr, 974 F.3d 909, 914 (9th Cir. 2020). In

Guerra, we reversed the BIA for reviewing the IJ’s decision

de novo, rather than for clear error, reasoning that “the clear

error standard does not allow the BIA to reweigh the

evidence when the IJ’s account of the evidence is plausible.”

Id. (citing Rodriguez, 683 F.3d at 1171). In explaining our

reasoning, we wrote:

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 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.

Id. at 913–14 (alterations in original). In other words, “[a]n

appellate court cannot substitute its interpretation of the

12 SOTO-SOTO V. GARLAND

evidence for that of the trial court simply because the

reviewing court might give the facts another construction

[or] resolve the ambiguities differently[.]” Inwood Labs.,

Inc. v. Ives Labs., Inc., 456 U.S. 844, 857–58 (1982)

(internal quotation marks omitted).

In Soto-Soto’s case, the IJ found: (1) Soto-Soto had

suffered torture in the past; (2) she would likely be arrested

if returned to Mexico, putting her back within reach of her

torturers; (3) her status as an indigenous woman made her

more likely to be tortured according to the country reports;

and (4) her report of the torture to the human rights

commission increased her likelihood of torture.

The BIA disagreed with the IJ’s view of the evidence.

But its only explanation of why the IJ’s decision was

illogical, implausible, or without support was that “[the IJ]

did not acknowledge that ‘the Mexican judicial system took

appropriate steps to correct any past due process errors

committed by the officers of the Office of Anti-kidnapping

and Extortions,’ that the respondent reported the torture and

was not subsequently harmed or threatened while in custody

for nearly 8 months, and that other members of her family

have remained unharmed in Mexico.” The BIA did not

explain how these alleged errors showed lack of logic,

plausibility, or support in the record on the part of the IJ. The

BIA’s reasoning is therefore insufficient to demonstrate that

the BIA engaged in clear error review. Instead, the BIA’s

reasoning reflects a de novo weighing of the evidence.

Moreover, the BIA’s view of the evidence lacks support

in the record. First, the record emphatically does not show

that the Mexican court took steps to cure the “due process

SOTO-SOTO V. GARLAND 13

errors” 2 caused by the state police officers torturing a

confession out of Soto-Soto. Instead, the record shows that

the Mexican court issued “a court order dismissing charges

. . . for lack of evidence in accordance with the law.” As part

of its conclusion that the evidence against Soto-Soto was

insufficient, the Mexican court held that Soto-Soto’s

confession lacked probative value because “police carried

out questionings at various domiciles without judicial

authorization, nor permission from the owners,” and because

there were “several contradictions regarding . . . the

confession of the accused[.]” Additionally, the court

determined that Soto-Soto’s confession lacked probative

value because she did not have a Purepecha interpreter

during the questioning. Notably absent from this order is

any acknowledgment that state police had tortured Soto-Soto

to obtain her confession, a bar upon her re-prosecution, or

punishment for the officers who tortured her. The court also

did not impose safeguards to ensure that the reopened

investigation would not result in further torture or another

improper confession. The record therefore contains no facts

to support the BIA’s finding that the due process errors in

Soto-Soto’s case were remedied.

Furthermore, even if the record supported the BIA’s

factual findings, that would not be enough for the BIA to

overturn the IJ under the clear error standard of review.

Inwood Labs., Inc., 456 U.S. at 857–58. The IJ’s predictive

fact finding leading to the holding that Soto-Soto was likely

to be tortured again upon return to Mexico recognized that

the second investigation resulted in the issuance of a warrant

for her arrest. But in its discretion as factfinder, the IJ

reasoned that this increased her likelihood of torture—rather

2

Though it strains credulity to call the brutal torture Soto-Soto

endured a “due process error,” we use the BIA’s terms for consistency.

14 SOTO-SOTO V. GARLAND

than decreasing it—because it meant that Soto-Soto would

almost certainly end up in the hands of the state police who

had previously tortured her and had threatened to do so

again. This type of fact finding—how the facts in the record

affect the likelihood of future torture—is entitled to broad

deference from the BIA. See Vitug v. Holder, 723 F.3d 1056,

1063 (9th Cir. 2013). The BIA’s review of that predictive

fact finding, however, exhibits no deference to the IJ’s

decision.

The second reason the BIA gave for reversing the IJ—

that Soto-Soto was unharmed for eight months after

disclosing the prior torture—is also unmoored from the

record. The human rights commission complaint was not

filed until after Soto-Soto was released from custody.

Nothing in the record suggests that the state police officers,

who threatened to torture her if she reported the abuse, were

aware that she had done so. Soto-Soto’s physical safety

while in custody is therefore not probative of the state police

officers’ intent to carry out their threat of future torture if

Soto-Soto reported their past torture.

The BIA’s final point, that Soto-Soto’s family members

remain unharmed in Mexico, is irrelevant. The current

threats to Soto-Soto’s family members hinge on whether

Soto-Soto returns to Mexico. For example, Soto-Soto’s

daughter, Leonarda Bravo Soto, wrote, “I still receive threats

that if my mother returns[,] . . . they will take my daughter

away. . . . [We], her children, do not want her to return to

the town. . . . We love our mother so much and want her

alive for many years more.” Because Soto-Soto has not

returned to Mexico, the current physical safety of her family

members does not indicate that the threats against them are

baseless.

SOTO-SOTO V. GARLAND 15

Moreover, the BIA failed to discuss the IJ’s other “key

factual findings,” specifically that country condition reports

established that indigenous women are more likely to be

tortured in Mexico than other groups. See Zumel, 803 F.3d

at 475, 476. The BIA stated only that “the Mexican

government has made strident efforts to combat the use of

torture[.]” In concluding that the government’s “strident

efforts” to eliminate torture outweighed the country

conditions report showing that indigenous women are at an

increased risk of torture, the BIA re-weighed evidence and

failed to engage in clear error review. Similarly, in

countering the IJ’s finding that community members had

credibly threatened Soto-Soto, the BIA wrote that when

these individuals were actively beating Soto-Soto’s co-

defendant, “the local police did arrive and intervene to some

degree[.]” But the local police who arrived testified that they

did not stop the crowd from beating the co-defendant. The

BIA’s assertion is, again, both unfounded and reflective of

an independent weighing of the evidence rather than clear

error review.

Based on this analysis, the BIA’s decision reflects de

novo, rather than clear error, review. The BIA therefore

applied the wrong standard of review, substituting its own

view of the evidence for the IJ’s.

B.

Reviewed under the proper standard of review, the IJ’s

factual findings were not clearly erroneous. A court

“assessing whether it is more likely than not that an applicant

would be tortured in the proposed country of removal” must

consider:

(i) Evidence of past torture inflicted

upon the applicant;

16 SOTO-SOTO V. GARLAND

(ii) Evidence that the applicant could

relocate to a part of the country of

removal where he or she is not likely

to be tortured;

(iii) Evidence of gross, flagrant or mass

violations of human rights within the

country of removal, where applicable;

and

(iv) Other relevant information regarding

conditions in the country of removal.

8 C.F.R. § 1208.16(c)(3). Of these,

[p]ast torture is ordinarily the principal factor

on which we rely when an applicant who has

been previously tortured seeks relief under

[CAT] because, absent changed

circumstances, if an individual has been

tortured and has escaped to another country,

it is likely that she will be tortured again if

returned to the site of her prior suffering.

Xochihua-Jaimes v. Barr, 962 F.3d 1175, 1188 (9th Cir.

2020) (cleaned up).

In accordance with the items listed in 8 C.F.R.

§ 1208.16(c)(3), the IJ found that the Michoacán state police

tortured Soto-Soto, and the revived arrest warrant

guaranteed she would be placed back in custody of the

Michoacán state police, who previously tortured her,

SOTO-SOTO V. GARLAND 17

precluding relocation. 3 Moreover, the state police officers

specifically threatened to torture Soto-Soto again if she

reported their misconduct—which she did. 4 Finally, the IJ

3

Our dissenting colleague believes that we improperly conflate “the

various Mexican law enforcement actors in the state of Michoacán into

a unitary actor,” because there is no evidence that the Michoacán Office

of Anti-Kidnapping and Extortions in the city of Morelia is a

“component” of the Michoacán police force in the city of Uruapan,

where Soto-Soto would have been held for trial. We disagree that the

record lacks such evidence. For instance, the Human Rights

Commission Complaint filed on Soto-Soto’s behalf states that she was

tortured by “members of the State Ministry Police of the Office of Anti-

kidnapping and Extortions of the State Attorney General.”

Furthermore, the Anti-Kidnapping Office found Soto-Soto at her

home in Uruapan and took her to Morelia to brutalize her before she was

transferred back to Uruapan to be held in prison pending trial. Uruapan

and Morelia are both in the state of Michoacán. It would be illogical to

conclude that, although Soto-Soto was not safe from the “State Ministry

Police of the Office of Anti-kidnapping and Extortions” in her home in

Uruapan, she would be safe from them in a jail cell there, watched over

by other state police. Moreover, the BIA never concluded—and the

Government never argued—that Soto-Soto was ineligible for CAT relief

because the Michoacán Anti-Kidnapping Office was separate from the

Michoacán state police. We therefore respectfully disagree with Judge

Wallace that it would be appropriate for us to base our decision on this

waived factual issue. See Clem v. Lomeli, 566 F.3d 1177, 1182 (9th Cir.

2009) (stating that, in general, appellees waive issues that they fail to

raise in their answering brief); United States v. Dreyer, 804 F.3d 1266,

1277–78 (9th Cir. 2015) (en banc) (same); Moran v. Screening Pros,

LLC, 943 F.3d 1175, 1180 (9th Cir. 2019) (same).

4

Our dissenting colleague need not be concerned that our

disposition of Soto-Soto’s case improperly relies on the dissent in

Dawson v. Garland, Case No. 19-73142, 2021 WL 2125800 (9th Cir.

May 26, 2021). Dissent at 23. In Dawson, the majority affirmed the

denial of CAT relief where the petitioner suffered past torture at the

hands of her intimate partner before obtaining a protective order that

stopped the torture because “[t]he inference that future torture is likely

18 SOTO-SOTO V. GARLAND

considered the country condition reports showing an

increased threat of torture for indigenous women. The IJ did

not err, and a proper application of the clear error standard

of review would have resulted in the BIA affirming the IJ’s

grant of relief. Indeed, the record compels the conclusion

that Soto-Soto “met her burden of proof to establish that it is

more likely than not that she will suffer future torture if

removed to her native country.” Id. at 1188.

CONCLUSION

Because the record compels the conclusion that Soto-

Soto carried her evidentiary burden, we GRANT the petition

and REMAND for the BIA to grant deferral of removal

pursuant to CAT. Id. (citing Haile v. Holder, 658 F.3d 1122,

1133 (9th Cir. 2011)).

to recur breaks down where ‘circumstances or conditions have changed

significantly, not just in general, but with respect to the particular

individual.’” 2021 WL 2125800, at *6 (quoting Nuru v. Gonzales,

404 F.3d 1207, 1218 (9th Cir. 2005)). Dawson does not apply to this

case because—as set forth above—Soto-Soto’s circumstances have not

significantly changed.

Moreover, the rule that past torture is the principal factor for

evaluating the likelihood of future torture was established long before

Dawson. See Xochihua-Jaimes, 962 F.3d at 1188; Avendano-Hernandez

v. Lynch, 800 F.3d 1072, 1080 (9th Cir. 2015); Nuru, 404 F.3d at 1217–

18. By relying on that rule here, we tread no new or uncertain ground.

SOTO-SOTO V. GARLAND 19

WALLACE, Senior Circuit Judge, concurring in part and

dissenting in part:

I concur with the majority’s holding limited to the issue

that the Board of Immigration Appeals (Board)

impermissibly applied de novo review when it reversed the

Immigration Judge’s (IJ) grant of relief pursuant to the

Convention Against Torture (CAT) to Soto-Soto. The

Board’s use of “clear error” before each respective

conclusion does not automatically mean it conducted clear

error review. See Vitug v. Holder, 723 F.3d 1056, 1063 (9th

Cir. 2013). The Board, instead, reweighed the evidence here

when it emphasized factors ignored by the IJ rather than

rejecting reasons relied upon by the IJ as illogical or

impermissible inferences. See Rodriguez v. Holder,

683 F.3d 1164, 1170–71 (9th Cir. 2012) (acknowledging the

Department of Justice’s position that “[a] factfinding may

not be overturned simply because the Board would have

weighed the evidence differently or decided the facts

differently had it been the factfinder”) (alteration in original)

(citations omitted). This is further evinced by the fact that

the Board did not discuss the role of Soto-Soto’s status as an

indigenous woman in its analysis. See Vitug, 723 F.3d at

1064 (holding that the Board “abuses its discretion where it

ignores arguments or evidence”). At the most basic level,

the Board should have conducted a more thorough analysis

to explain how the IJ’s decision was illogical or not based

upon permissible inferences from the record to comply with

the clear error review standard. See Anderson v. Bessemer

City, 470 U.S. 564, 577 (1985).

Had we gone no further and remanded to the Board for

reconsideration, I could have joined in the opinion.

However, the majority decided to add more, resulting in my

dissent on two grounds. First, while I agree that the Board

20 SOTO-SOTO V. GARLAND

conducted impermissible de novo review, I nonetheless

believe the IJ erred in his likelihood of future torture analysis

when he granted CAT relief. Relatedly, I disagree with the

majority’s conflation of the various Mexican law

enforcement actors in the state of Michoacán into a unitary

actor—i.e., the “Michoacán state police.” See, e.g., Maj. Op.

at 6. In my opinion, the majority never refers to Soto-Soto’s

torturers properly because it refers to them as the

“Michoacán state police,” even though the more accurate

description, which is used by the Board, is that they were

members of the Office of Anti-Kidnapping and Extortions in

Morelia, Michoacán. There is no evidence in the record to

support the conclusion that the officers from the Office of

Anti-Kidnapping and Extortions in Morelia are a component

of the same Michoacán state police force that is in the city of

Uruapan, where Soto-Soto would have been held for her

trial. The two cities are 67 miles apart and there is no

evidence of connection, legal or otherwise, of the police

units of the two cities.

In my view, the IJ committed the same error during his

likelihood of future torture analysis when he assumed that

Soto-Soto would be returned to her torturers stationed at the

Office of Anti-Kidnapping and Extortions in Morelia,

Michoacán, despite INTERPOL’s specific direction in the

Red Notice to return Soto-Soto to the court in Uruapan,

Michoacán, where she, in fact, safely remained in custody

for eight months waiting to be tried for the kidnaping and

murder of a child from her neighborhood when the child’s

family did not pay the demanded ransom.

Second, I dissent from the majority’s direction to the

Board to grant CAT relief rather than reversing and

remanding the petition to the Board for further consideration

as is our ordinary practice. See Guerra v. Barr, 974 F.3d

SOTO-SOTO V. GARLAND 21

909, 917 (9th Cir. 2020) (observing that, where the Board

“failed to apply the proper standard of review, we have

generally vacated the agency’s decision and remanded for

the [Board] to apply the appropriate standard of review”);

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

2006) (reversing and remanding because the Board applied

the incorrect legal standard).

I.

Even if the issue were properly before us, I would

disagree with the majority’s decision to grant Soto-Soto’s

request for CAT relief because I do not believe the evidence

compels such a conclusion. From my reading of the record,

the IJ erred in granting CAT relief due to two assumptions

he made during the likelihood of future torture analysis that

are neither supported by the record nor qualify as

permissible inferences. First, the IJ assumed that Soto-Soto

would be returned to the custody of the officers who tortured

her in Morelia, Michoacán, despite explicit instructions in

the Red Notice that Soto-Soto be transferred to authorities in

Uruapan, Michoacán. As stated earlier, the two cities are

approximately 67 miles apart. The IJ’s assumption was

implausible because he ignored that Soto-Soto would have

been prosecuted in Uruapan, Michoacán, for the new

criminal charges against her so that she would have been in

the custody of a separate law enforcement group and under

the authority of a separate court. Uruapan is a separate

jurisdiction within the state of Michoacán where, in fact, she

remained unharmed for eight months awaiting trial, thereby

proving the implausibility of the IJ’s assumption.

Second, the IJ merged the various law enforcement

actors involved into the unitary concept of “Mexican

authorities” rather than the various discrete law enforcement

authorities throughout the state of Michoacán, i.e., the Office

22 SOTO-SOTO V. GARLAND

of Anti-Kidnapping and Extortions from Morelia, the

Michoacán state police in Uruapan, and the judiciary in

Uruapan. This non-record based unitary law enforcement

theory muddies the actual factual situation. The IJ made no

findings that would support such generalizations. We do not

have the authority to find facts on appeal, and the factual

issue should be resolved on remand. Cf. Ornelas-Chavez,

458 F.3d at 1060 (acknowledging that we cannot make

factual findings and remanding the petition because we

should not conduct an “independent review of the evidence”

to determine whether a petitioner is eligible for CAT relief

when applying the correct legal standard in the first

instance). The majority repeats this error with its inclusive

use of “Michoacán state police.”

The majority asserts that this factual issue has been

waived because it was not raised by the parties; nonetheless,

an impermissible inference was made by the IJ. Although

the government did not make this explicit argument, it was

careful to distinguish between the different law enforcement

actors throughout the proceedings before the Agency and in

its answering brief. The Board also acknowledged the

factual distinction in its decision when it observed that Soto-

Soto’s torturers were from the Office of Anti-Kidnapping

and Extortions, as well as highlighted the torture in Morelia

as opposed to Uruapan.

In addition, the majority’s citation to our decision in

Clem v. Lomeli, 566 F.3d 1177 (9th Cir. 2009), to support its

point that this factual distinction issue was waived is

unavailing because Clem is readily distinguishable from this

appeal. Clem was a Section 1983 prisoner case, in which

Clem appealed from an adverse jury verdict and argued that

the district court gave erroneous jury instructions and that

the error was not harmless. Clem, 566 F.3d at 1179. We

SOTO-SOTO V. GARLAND 23

held in Clem that the jury instructions were erroneous. Id.

at 1181–82. We next reasoned that the defendant could not

overcome the presumption of prejudice because he failed to

address prejudice in his answering brief. Id. at 1182. The

majority relies on this point to argue that I should not

consider the law enforcement distinction point when

determining that the IJ made an impermissible inference.

However, the majority forgets that the standard of review is

different here, and we must consider whether substantial

evidence supports the IJ’s determination that Soto-Soto is

entitled to CAT relief in determining whether to remand her

petition for reconsideration or to grant her request for CAT

relief. Ultimately, I cannot ignore the IJ’s impermissible

inference nor the majority’s own factual assumptions to

reach its conclusion.

Finally, I observe that many of the arguments and

assumptions the majority makes to support its conclusion

that Soto-Soto is entitled to CAT relief were rejected by our

court in a separate, unrelated opinion. See Dawson v.

Garland, Case No. 19-73124, 2021 WL 2125800 (9th Cir.

May 26, 2021) (Circuit Judges M. Smith and Ikuta, and

District Judge Vratil). As I observe in my partial dissent, the

majority in Dawson reasoned that the petitioner’s individual

circumstances had changed and the lack of general changes

in the country should not detract from her personally

changed circumstances. Id. at *8. The Dawson dissent

contended that petitioner’s past torture was the “principal

factor” for evaluating the likelihood of future torture. Id.

The majority makes a substantially similar argument here,

with which I disagree.

As to the first point, Soto-Soto carries the burden to

establish that it is more likely than not that she would be

tortured if returned to Mexico to be granted CAT relief, in

24 SOTO-SOTO V. GARLAND

this case deferral of removal. 8 C.F.R. §§ 1208.16(c),

1208.17(a). Her application should have been reviewed

under the standards for eligibility set out in section

1208.16(c)(3). See § 1208.17(a); see also Hamoui v.

Ashcroft, 389 F.3d 821, 827 (9th Cir. 2004) (holding that

petitioner must prove there is a “chance greater than fifty

percent” that they “will be tortured if removed”). While

“past torture is ordinarily the principal factor on which we

rely when an applicant who has been previously tortured

seeks” CAT relief, Xochihua-Jaimes v. Barr, 962 F.3d 1175,

1188 (9th Cir. 2020) (cleaned up), we must also consider

whether the circumstances have changed.

Soto-Soto has established her past torture at the hands of

the Office of Anti-Kidnapping and Extortions in Morelia,

but there is no evidence in the record that supports imputing

its conduct to the Michoacán state police in Uruapan, or that

the separate courts in Uruapan would tolerate such activity.

Yet the IJ assumed without record citation that the

Michoacán state police in Uruapan are the same as the Office

of Anti-Kidnapping and Extortions in Morelia. This was not

a permissible inference based on the evidence in the record.

Moreover, I cannot agree with the IJ’s and the majority’s

refusal to consider the evidence of changed circumstances

here that mitigate against the likelihood of future torture. I

believe the Red Notice’s instruction to return Soto-Soto to

Uruapan is a changed circumstance that shifts the balance

against Soto-Soto’s claim. She was detained eight months

in Uruapan, and there is no evidence that any member of the

Michoacán state police in Uruapan harmed Soto-Soto or

threatened to harm her. There is also no evidence that the

Michoacán state police in Uruapan, or the Uruapan court,

would permit Soto-Soto’s torturers from the Office of Anti-

Kidnapping and Extortions in Morelia to torture her again

before her trial or that the police in Uruapan would torture

SOTO-SOTO V. GARLAND 25

Soto-Soto as retribution for reporting her torture by the

Office of Anti-Kidnapping and Extortions.

Even though Soto-Soto argues that the new criminal

charges against her are based on the same evidence but

without her coerced confession, so that she will likely be

tortured again for a new confession, this argument is pure

speculation and without support in the record. The argument

also obscures the fact that the new investigation into the

child’s kidnapping and murder still found sufficient

evidence to once again charge Soto-Soto for the crimes, even

without her coerced confession. The IJ also held that the

serious, non-political crime bar applied because there are

serious reasons to believe that Soto-Soto kidnapped and

murdered the child. It is, therefore, important to emphasize

that Soto-Soto’s original criminal case was not dismissed

due to her torture or her factual innocence, but other due

process errors that the court in Uruapan has corrected.

As to my second point, the record does not support the

IJ’s assumption that the various police and judiciary actors

in Michoacán, Mexico are a unitary actor of “Mexican

authorities”, nor does it support the majority’s similar

merger of authorities as the “Michoacán state police.” We

have emphasized the importance of distinguishing between

local, state, and federal police or countrywide efforts in

persecution cases. See, e.g., Madrigal v. Holder, 716 F.3d

499, 510 (9th Cir. 2013). While the circumstances presented

here are different, I believe the ultimate point rings true that

we are required to consider which law enforcement group

was responsible for the torture and whether that group would

be able to torture her again if she were returned to Mexico.

Yet the majority fails to do so here. My concern is that

the majority’s holding will lead to the perverse result that

any victim of torture by law enforcement from one city can

26 SOTO-SOTO V. GARLAND

essentially claim an omnipresent threat from law

enforcement throughout that region of the country,

regardless of individual, ameliorative efforts taken by other

law enforcement branches in the region. This is particularly

troubling due to the lack of evidence in this case to support

such a theory of CAT relief. Indeed, Soto-Soto was ordered

to be returned to a separate court, 67 miles away from where

the Office of Anti-Kidnapping and Extortions acted, to be

tried for the kidnaping and murder of a neighbor’s child.

There is no evidence that that court in Uruapan would allow

Soto-Soto’s torture.

II.

Finally, I believe the majority errs by directing the Board

to grant Soto-Soto CAT relief outright rather than remanding

her petition to the Board to consider our opinion. Our

ordinary practice is to remand a petition when the Board

applied the incorrect standard, as it did here, unless there is

a special circumstance that requires us to grant the

underlying relief. See Guerra, 974 F.3d at 916–17. As I do

not agree with the majority’s conclusion that the evidence

compels us to grant Soto-Soto CAT relief, I also do not

believe remanding without requiring further consideration

by the Board is appropriate here. We should not interfere

with our usual role as an appellate court to decide factual

issues. Our usual remand to the Board procedure would

overcome this mistake.

III.

For these reasons, I concur with the majority’s holding

that the Board improperly engaged in de novo review and

dissent from the majority’s failure to remand to the Board

for reconsideration to determine whether Soto-Soto is

entitled to CAT relief.