Jean Ridore v. Eric H. Holder Jr.

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JEAN BAPTISTE RIDORE, AKA John 

Ridore,

No. 08-71379

Petitioner,

v.  Agency No.

A030-689-693

ERIC H. HOLDER Jr., Attorney

OPINION

General,

Respondent.



On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted

August 31, 2011—San Francisco, California

Filed October 3, 2012

Before: Raymond C. Fisher and Johnnie B. Rawlinson,

Circuit Judges, and George H. Wu, District Judge.*

Opinion by Judge Fisher

*The Honorable George H. Wu, United States District Judge for the

Central District of California, sitting by designation.

11981

11984 RIDORE v. HOLDER

COUNSEL

Kari Elisabeth Hong (argued), Law Office of Kari E. Hong,

Oakland, California, for the petitioner.

Kiley L. Kane (argued), Trial Attorney, United States Depart-

ment of Justice; OIL, United States Department of Justice;

Mary Jane Candaux, Assistant Director, United States Depart-

ment of Justice; John Hogan, Senior Litigation Counsel,

United States Department of Justice, Washington, D.C.; Chief

Counsel ICE, Office of the Chief Counsel, Department of

Homeland Security, San Francisco, California, for the respon-

dent.

OPINION

FISHER, Circuit Judge:

Jean Baptiste Ridore petitions for review of a decision of

the Board of Immigration Appeals (BIA) ordering him

removed to his native Haiti. The BIA vacated the decision of

the immigration judge (IJ) granting Ridore protection under

the Convention Against Torture (CAT) and cancellation of

RIDORE v. HOLDER 11985

removal. Ridore argues that the BIA acted beyond the scope

of its authority under 8 C.F.R. § 1003.1(d)(3) by reviewing

the IJ’s findings under a de novo rather than clear error stan-

dard and improperly engaging in its own factfinding. We

agree that the BIA committed legal error in vacating the IJ’s

decision with respect to the CAT protection claim, and there-

fore grant Ridore’s petition and remand to the BIA to review

the IJ’s CAT findings applying the clear error standard. As to

cancellation of removal, the BIA applied the correct standard

of review, so we deny Ridore’s petition to that extent. We

vacate, however, that part of the BIA’s order and remand to

the BIA for reconsideration in light of our remand on Ridore’s

CAT claim.

BACKGROUND

Ridore, a native and citizen of Haiti, was admitted to the

United States as a lawful permanent resident in 1973, at the

age of 12. His father, sister and brother are United States citi-

zens. Ridore lived with his mother and grandmother. When he

was approximately 21 years old, Ridore’s mother and grand-

mother were killed, and he discovered their murdered bodies

in their home. He subsequently developed a problem with

alcohol, and between 1991 and 2004 he was convicted of a

string of criminal offenses, including petit larceny, theft,

criminal trespass, possession of drug paraphernalia, second

degree commercial burglary, failure to maintain liability

insurance, failure to use a safety restraint, fictitious registra-

tion display, obscene conduct, reckless driving, failure to pro-

vide proof of insurance, speeding, operating without liability

insurance, driving without privileges and, on three occasions,

driving while intoxicated. Ridore came to the attention of the

federal immigration authorities, who initiated the removal

proceedings that are the basis of this appeal.

Initial Proceedings. In 2003, the Department of Homeland

Security (DHS) issued Ridore a Notice to Appear (NTA)

alleging that he was removable under 8 U.S.C.

11986 RIDORE v. HOLDER

§ 1227(a)(2)(A) for having been convicted of a felony relating

to theft or burglary and sentenced to a term of imprisonment

of at least one year, and for having committed two crimes of

moral turpitude.

Ridore applied for cancellation of removal and moved to

terminate removal proceedings, arguing that he had derivative

citizenship through his father. The IJ found Ridore removable

on both grounds alleged in the NTA, denied cancellation of

removal because of Ridore’s aggravated felony conviction

and denied his motion to terminate removal proceedings

because he failed to prove derivative citizenship.

On appeal, the BIA affirmed the finding that there was

insufficient evidence of derivative citizenship, but reversed

the IJ’s finding that Ridore was removable as an aggravated

felon. Because reversal of the aggravated felony charge made

Ridore potentially eligible for relief that was previously

barred, including withholding of removal and cancellation of

removal, the BIA remanded the case to the IJ.

2005 Proceedings Before the IJ on Remand. On remand,

Ridore in 2005 added applications for asylum, withholding of

removal and CAT protection to his pending cancellation of

removal proceeding. The IJ heard testimony from Ridore, his

brother Evald and — most relevant to this appeal — an expert

witness, Michelle Karshan, the founder of Alternative

Chance, an organization that provides aid to criminal depor-

tees in Haiti. The IJ also reviewed an affidavit from Karshan,

the State Department’s 2004 Country Report on Haiti’s

Human Rights Practices and “numerous background materi-

als” Ridore submitted.

The parties were provided an opportunity to submit briefs

on the significance of In re J-E-, 23 I. & N. Dec. 291 (BIA

2002) (en banc), abrogated on other grounds by Azanor v.

Ashcroft, 364 F.3d 1013, 1019-20 (9th Cir. 2004), in which

the BIA rejected a similar claim for CAT protection based on

RIDORE v. HOLDER 11987

the detention and life-threatening conditions criminal depor-

tees allegedly faced in Haitian prisons. In April 2005, the IJ

denied Ridore’s applications for asylum and withholding of

removal but granted CAT protection and cancellation of

removal. The IJ concluded that CAT protection was war-

ranted because Ridore’s specific circumstances and the cur-

rent conditions in Haiti’s prisons were distinguishable from

those existing at the time of In re J-E-, such that cancellation

was warranted as a matter of discretion.

2007 Appeal to the BIA. The DHS appealed the IJ’s deci-

sion to the BIA, which sustained the appeal and vacated the

IJ’s grant of CAT protection and cancellation of removal. The

BIA concluded that Ridore’s case was controlled by In re J-

E- for the purposes of his CAT protection claim, and that a

discretionary grant of cancellation was unwarranted. Ridore

now petitions for review.

JURISDICTION AND STANDARD OF REVIEW

We have exclusive jurisdiction over petitions for review of

final orders of removal. See 8 U.S.C. § 1252. We have juris-

diction to review Ridore’s legal challenges to the BIA’s

denial of his CAT claim pursuant to § 1252(a)(2)(D).

Although we typically may not review the BIA’s finding that

a case does not warrant a discretionary grant of cancellation

of removal, see id. § 1252(a)(2)(B)(i), such jurisdiction strip-

ping provisions do not apply where, as here, the petitioner

raises a question of law — whether the BIA acted within its

regulatory authority. See Afridi v. Gonzales, 442 F.3d 1212,

1218 (9th Cir. 2006), abrogated on other grounds by Estrada-

Espinoza v. Mukasey, 546 F.3d 1147 (9th Cir. 2008).

We review factual findings for substantial evidence, see

Azanor, 364 F.3d at 1018, and legal questions de novo, see De

Martinez v. Ashcroft, 374 F.3d 759, 761 (9th Cir. 2004).

Whether the BIA has applied the correct standard of review

11988 RIDORE v. HOLDER

is a question of law. See Rodriguez v. Holder, 683 F.3d 1164,

1169 (9th Cir. 2012).

DISCUSSION

[1] The central question presented here is whether the BIA,

in overruling the IJ’s grants of CAT protection and discretion-

ary cancellation of removal, failed to apply a clear error stan-

dard of review to the IJ’s factual findings and engaged in

factfinding that it is not authorized to do in its appellate func-

tion. The governing regulations explicitly state that the BIA

shall not “engage in de novo review of findings of fact deter-

mined by an immigration judge.” 8 C.F.R. § 1003.1(d)(3)(i).

Rather, “[f]acts determined by the immigration judge, includ-

ing findings as to the credibility of testimony, shall be

reviewed only to determine whether the findings of the immi-

gration judge are clearly erroneous.” Id. The BIA may, how-

ever, “review questions of law, discretion, and judgment . . .

de novo.” Id. § 1003.1(d)(3)(ii). “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.”

Rodriguez, 683 F.3d at 1170. Further, the BIA may “not

engage in factfinding in the course of deciding appeals.” 8

C.F.R. § 1003.1(d)(3)(iv).

Ridore argues that the BIA violated these regulations,

either by failing to justify its rejection of evidence the IJ

relied upon or by ignoring it entirely — essentially engaging

in de novo review and its own factfinding. We agree with him

as to his CAT claim, but not as to cancellation of removal,

although we conclude that the BIA should reconsider its dis-

cretionary ruling in light of our remand on the CAT claim.

I. CAT Protection

The essence of Ridore’s claim for protection under CAT is

the likelihood that immediately upon his return to Haiti he

will be put into prison for a prolonged time under horrific

RIDORE v. HOLDER 11989

conditions that his expert testified and the IJ found would be

almost “equivalent to a death warrant” and qualify as “tor-

ture” under CAT.

[2] The BIA sitting en banc in 2002 addressed and rejected

a similar claim in In re J-E-, 23 I. & N. Dec. 291. There, a

Haitian criminal deportee sought CAT relief, arguing that if

removed he would be detained indefinitely in prison where

the conditions were inhumane and the guards mistreated pris-

oners, and that such detention constituted torture. An appli-

cant may be eligible for CAT protection when he or she can

show “that it is more likely than not that he or she would be

tortured if removed to the proposed country of removal.” 8

C.F.R. § 1208.16(c)(2); see also Unuakhaulu v. Gonzales, 416

F.3d 931, 939 (9th Cir. 2005). “In assessing whether it is

more likely than not that an applicant would be tortured in the

proposed country of removal, all evidence relevant to the pos-

sibility of future torture shall be considered.” 8 C.F.R.

§ 1208.16(c)(3). This may include “[e]vidence of gross, fla-

grant or mass violations of human rights within the country of

removal.” Id. § 1208.16(c)(3)(iii). “For an act to constitute

torture it must be: (1) an act causing severe physical or mental

pain or suffering; (2) intentionally inflicted; (3) for a pro-

scribed purpose; (4) by or at the instigation of or with the con-

sent or acquiescence of a public official who has custody or

physical control of the victim; and (5) not arising from lawful

sanctions.” In re J-E-, 23 I. & N. Dec. at 297 (citing 8 C.F.R.

§ [1]208.18(a)). In In re J-E-, the BIA concluded that,

although the Haitian prison conditions were deplorable, the

deportee had not carried his burden of showing they met the

definition of torture under CAT. First, the BIA held that

although the imprisonment practices were “unacceptable and

must be discontinued, there is no evidence that Haitian

authorities [we]re detaining criminal deportees with the spe-

cific intent to inflict severe physical or mental pain or suffer-

ing.” Id. at 300. Instead, the BIA concluded that the Haitian

government’s attempts to improve prison conditions, and will-

ingness to allow human rights organizations to monitor prison

11990 RIDORE v. HOLDER

conditions and provide assistance, demonstrated that the poor

conditions were “the result of budgetary and management

problems as well as the country’s severe economic difficul-

ties.” Id. at 301. The BIA also held that because Haiti has a

“legitimate national interest in protecting its citizens from

increased criminal activity,” and because its detention proce-

dures are “designed ‘to prevent the bandits from increasing

the level of insecurity and crime in the country,’ ” Haiti’s

detention “policy is a lawful sanction.” Id. at 300 (quoting

U.S. Dep’t of State, Haiti, Country Reports on Human Rights

Practices — 2000 (Feb. 2001)).

The key questions, therefore, are whether Ridore provided

evidence sufficient to show that the prison conditions in Haiti

have changed for the worse since In re J-E- was decided,

undermining the factual predicates for that decision, and

whether he has shown individual circumstances in his case

that there is a likelihood he will face “torture” qualifying him

for CAT. Cf. Lopez v. Ashcroft, 366 F.3d 799, 805 (9th Cir.

2004) (holding that, in the asylum context, “the BIA must

provide an individualized analysis of how changed conditions

will affect the specific petitioner’s situation” (citation and

internal quotation marks omitted)). The IJ found on the record

before him there was, in fact, such evidence.

A. IJ Decision

The IJ recognized that he was “bound by the . . . decision

in [In re] J-E-.” We have deferred to the BIA’s conclusion in

In re J-E- that detention of criminal deportees alone — when

there is no evidence of specific intent to inflict severe pain or

suffering — is insufficient to constitute torture under CAT.

See Theagene v. Gonzales, 411 F.3d 1107, 1113 (9th Cir.

2005); see also Villegas v. Mukasey, 523 F.3d 984, 989 (9th

Cir. 2008). The IJ here, however, made several factual find-

RIDORE v. HOLDER 11991

ings that led him to conclude that Ridore’s case was distinguish-

able.1 The IJ summarized his findings and conclusions thus:

In this case, [Ridore] . . . only needs to show that

he will be subjected to torture for any reason. . . .

[W]e have the testimony of Ms. Karshan who testi-

fied that clearly this individual upon his return back

to Haiti will be turned over to the Haitian authorities

who will immediately intern him in one of their

prison facilities where he will be held indefinitely

while the authorities determine what should be done

with him. This is based on the policy of the Haitian

authorities who fear that these individuals who have

been convicted of crimes in the United States will

return back to Haiti where they will commit further

crimes.

In this case, the Court is bound by the Board’s

decision in [In re] J-E-, [where the Board found] that

the evidence submitted by the respondent did not

establish that conditions he would face in Haiti met

the definition of torture because the Haitian govern-

ment’s policy of detaining criminal deportees consti-

tutes a lawful sanction, there was not a showing of

specific intent; and the detention was not imposed

for a prescribed purpose, such as coercion or dis-

crimination.

In this case though, the Court feels that this case

can be distinguished from [In re] J-E-. The Haitian

constitution makes it unlawful to detain persons not

1

We do not decide whether the IJ’s assessment of the evidence or his

factual findings and conclusions therefrom were correct. That was and

remains the BIA’s responsibility, at least in the first instance. As we shall

explain, with specific examples, we hold that the BIA did not properly

evaluate the IJ’s findings, in some cases at all, and in any event not under

the proper standard of clear error review. Accordingly, we shall remand

to the BIA to review the IJ’s CAT decision anew.

11992 RIDORE v. HOLDER

involved in criminal activity. Therefore, this Court

will not find that the Haitian government’s policy of

indefinite detention of aliens not being charged with

a crime in Haiti can constitute legal sanctions.

Furthermore, the conditions in Haitian prisons

have continuously declined over the past year. These

conditions have now risen to the point that incarcer-

ation in a Haitian prison is almost the equivalent to

a death warrant. And even [if] not, that the condi-

tions are so deplorable where disease is so rampant

that these individuals detained in these prisons will

have to suffer some long term problems that . . . can

only be described as acts of torture. Not only do the

Haitian authorities have a duty to protect their citi-

zens whether they are criminals or not, but they have

an ethical and moral duty to see that the people

detained in their prisons are not subject to such harsh

conditions that they are life threatening. Clearly, the

fact that they allow beriberi and tuberculosis to run

rampant through the prison population, cannot be

solely attributable to being unable to change those

conditions. Clearly, the fact that they do not main-

tain proper medical facilities in those institutions

can only be attributable to their willingness to use

the jails to harm the inmates so that they will never

be a threat to the population again. That is not the

purpose of a prison institution, to kill off its inmates

so as to reduce the criminal element in the country.

The reports also indicate the government has

placed in authority persons who were previously

accused of committing human rights abuses. There-

fore, one can only assume that these people are

being put in authority with the knowledge of the gov-

ernment that they will continue their old practices of

abusing as well as torturing the inmates under their

custody. Furthermore, one only has to look at the

RIDORE v. HOLDER 11993

prison population which is largely former supporters

of the previous government and criminal detainees

deported from [the] United States. Therefore, again,

one can only assume that these people were put in

charge because the government, as a policy, wishes

to have the prison population subjected to torture and

other acts.

A question [that] arises though is whether or not

the harsh conditions in prison constitutes [sic] tor-

ture. Torture . . . is any act by which “severe pain or

suffering” is intentionally inflicted on persons. In

this case, it cannot be said that the respondents are

subject to severe pain. Although, again, I would

assume that having beriberi or tuberculosis or some

other life threatening disease probably has, as an ele-

ment, severe pain. But, clearly, the fact that Con-

gress stated that it is either severe pain or suffering

also indicates that suffering may also be an element

of torture. And, clearly, suffering from malnutrition

or disease is clearly severe suffering and, therefore,

constitutes an act of torture.

Therefore, in this case clearly [Ridore] is facing a

long time imprisonment. He has no family in Haiti

who can care for him. Furthermore, he has no family

in Haiti who can arrange with the authorities to have

[him] released into their custody. Based on Ms. Kar-

shan’s statements that these individuals, therefore,

face long term imprisonment, . . . the Court must

find that the likelihood that [Ridore] would suffer

torture in that case is very likely.

(Citations omitted and emphases added).

On the government’s appeal, the BIA vacated the IJ’s deci-

sion notwithstanding his fact-based findings. We address first

11994 RIDORE v. HOLDER

the BIA’s standard of review, and then its decision overturn-

ing the IJ.

B. BIA Standard of Review

As Ridore points out, the BIA’s decision nowhere mentions

a standard of review. The government argues that, regardless,

the BIA properly disagreed with the IJ that as a matter of law

Ridore’s circumstances were distinguishable from In re J-E-;

it therefore did not apply de novo review to fact findings or

make any of its own, but simply weighed the evidence differ-

ently.

Such weighing of the evidence, the government contends,

is permitted under the BIA regulations as interpreted in Mat-

ter of V-K-, 24 I. & N. Dec. 500 (BIA 2008). Matter of V-K-

considered the BIA’s authority to reverse an IJ’s determina-

tion that an applicant was entitled to CAT protection and held

that, “while we review[ ] the Immigration Judge’s factual rul-

ings for clear error, we do not consider a prediction of the

probability of future torture to be a ruling of ‘fact.’ ” 24 I. &

N. Dec. at 501. The BIA concluded that § 1003.1(d)(3)’s reg-

ulatory history “indicates that there was no intent to apply the

restrictive ‘clearly erroneous’ test to mixed questions of fact

and law where the so-called ‘fact’ consists of a finding as to

the degree of possibility of a result occurring that is necessary

to sustain a statutory basis for eligibility (e.g., . . . the chance

of . . . torture if the alien is removed).” Id.

The BIA reached this conclusion relying in part on the

comments accompanying the regulations providing that “[t]he

‘clearly erroneous’ standard does not apply to determinations

of matters of law, nor to the application of legal standards, in

the exercise of judgment or discretion. This includes judg-

ments as to whether the facts established by a particular alien

amount to ‘past persecution’ or a ‘well-founded fear of future

persecution.’ ” Id. (quoting Board of Immigration Appeals:

Procedural Reforms To Improve Case Management, 67 Fed.

RIDORE v. HOLDER 11995

Reg. 54,878, 54,890 (Aug. 26, 2002)). In the BIA’s estima-

tion, “an Immigration Judge’s prediction or finding regarding

the likelihood that an alien will be tortured may be reviewed

de novo because, like a conclusion relating to whether a statu-

torily prescribed chance of persecution or level of hardship

exists, it relates to whether the ultimate statutory requirement

for establishing eligibility for relief was met and is therefore

a mixed question of fact and law, or a question of ‘judg-

ment.’ ” Id. at 501-02. Ultimately, the BIA stated that “[i]n

reviewing the record, we disagreed with the Immigration

Judge’s mixed factual and legal determination that a prepon-

derance of the evidence showed that it was more likely than

not that the respondent would be tortured . . . .” Id. at 502.

The BIA noted that in reaching this conclusion, it “only

assessed the facts as found by the Immigration Judge and

established by the evidence entered into the record, determin-

ing that they were insufficient to meet the respondent’s bur-

den of proof for protection.” Id. (emphasis added). The BIA

added, “[w]e believe that we acted in accordance with the rel-

evant regulations and our role as an appellate body. 8 C.F.R.

§ 1003.1(d)(3). Indeed, it would appear essential to the perfor-

mance of our appellate function as contemplated by the Attor-

ney General that we possess the authority to review de novo

findings deemed by an Immigration Judge to satisfy an ulti-

mate statutory standard.” Id. Although we have not ruled on

the correctness of Matter of V-K-, the Third Circuit has in a

thoughtful opinion that adds this important gloss:

In the case of the likelihood of torture, there are

two distinct parts to the mixed question: (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? The two parts should be exam-

ined separately.

The first question is factual. A finding that a peti-

tioner is likely to be imprisoned (based, for instance,

on the evidence of gross violations of human rights

11996 RIDORE v. HOLDER

in the country of removal) is a finding of fact. A

finding that a petitioner is likely to be extorted for

vast sums of money if removed (based, for example,

on the testimony of the petitioner and his expert) is

also a finding of fact. So is a finding that a petitioner

is likely to be beaten by government officials based

on a finding that the petitioner was severely beaten

in the past. This is to be distinguished from the legal

consequence of those underlying facts.

The second question, however, is a legal question.

Torture is a term of art, and whether imprisonment,

beating, and extortion are severe enough to rise to

the level of torture is a legal question. While the

underlying facts vary from petitioner to petitioner,

the legal question remains the same: do the facts

found by the IJ (and that the BIA determines are not

clearly erroneous) meet the legal requirements for

relief under the CAT? This is a question of law

where the IJ has no comparative advantage over the

BIA.

Glueing the two questions together, however, does

not entitle the BIA to review the first question, the

factual one, de novo. It must break down the inquiry

into its parts and apply the correct standard of

review to the respective components.

Kaplun v. Attorney Gen., 602 F.3d 260, 271 (3d Cir. 2010)

(emphases added); see also Rodriguez, 683 F.3d at 1176-77

(in “ma[king] its own findings as to the accuracy of the histor-

ical facts discussed” by a witness and “making its own finding

regarding [the petitioner’s] credibility,” the BIA impermiss-

ibly “substituted its own reading of the evidence for that of

the IJ without applying the deference required by the clear

error standard of review,” thereby violating 8 C.F.R.

§ 1003.1(d)(3)(i)). Here the government argues that the BIA

accepted the IJ’s factual findings, but vacated the decision

RIDORE v. HOLDER 11997

because it was “not persuaded that [Ridore’s] case [was] dis-

tinguishable from [In re] J-E-.” Ridore argues, however, that

the BIA’s decision in fact improperly conflated these “two

distinct parts” by applying a de novo standard of review to the

IJ’s factual findings — to the extent it even considered them

— and improperly engaged in its own factfinding.

C. BIA Decision

The BIA rejected the IJ’s CAT ruling in a single, largely

conclusory paragraph that essentially recited the general con-

clusions the BIA reached in 2002 in In re J-E-. It did not

address most of the IJ’s specific factual findings, nor the evi-

dence underlying his findings — particularly the extensive

evidence provided by Ridore’s expert witness, Michelle Kar-

shan, upon whom the IJ extensively relied. To the extent it

cited any facts, the BIA relied on In re J-E- and DHS’s “as-

sert[ions] on appeal.” The net effect of the BIA’s approach,

therefore, was to apply an overall de novo review, the very

approach the Third Circuit rejected in Kaplun. See 602 F.3d

at 271-72. The BIA’s flawed approach impeaches its conclu-

sions on several key issues.

1. Whether the Haitian government was acting with

specific intent to torture criminal deportees

The IJ concluded that “the [Haitian] government, as a pol-

icy, wishes to have the prison population subjected to tor-

ture.” In reaching this conclusion, he made several findings

about the current (2005) state of prison conditions relating to

lack of food, water and medical treatment, prevalence of dis-

ease and abusive guards — aspects of Haiti’s prisons that the

BIA in In re J-E- had already agreed were deplorable and

intolerable at the level they existed in 2000. In evaluating

CAT claims, “we must assess the conditions as they currently

exist.” Villegas, 523 F.3d at 989. The IJ supported his find-

ings about the decline from 2000 conditions with the most

recent (2004) State Department Country Report, and Kar-

11998 RIDORE v. HOLDER

shan’s expert opinion. For example, he noted that Karshan’s

report found:

[C]onditions in Haitian prisons have declined so

much . . . that prison conditions have now become

death warrants for those interned in them. She

note[d] that potable water is virtually unavailable to

the individuals. Food, unless provided by the fami-

lies, is very meager. Furthermore, the prisoners

themselves have a hierarchy which controls what lit-

tle food is made available. Therefore, without money

as well, these individuals who are interned often

have difficulty securing food for their sustenance.

[Karshan] also noted that . . . medical facilities in

these prisons [are] virtually nonexistent. Considering

the conditions of these prisons, it is not uncommon

for the prisoners to contract various diseases as out-

lined in the Country Reports. She note[d] that tuber-

culosis is on the rise in these facilities.

Based on this and other hearing testimony and documents,

the IJ found that “the conditions are so deplorable where dis-

ease is so rampant that these individuals detained in these

prisons will have to suffer some long term problems that . . .

can only be described as acts of torture.”2 “[T]he fact that they

allow beriberi and tuberculosis to run rampant through the

prison population, cannot be solely attributable to being

unable to change those conditions. Clearly, the fact that they

do not maintain proper medical facilities in those institutions

can only be attributable to their willingness to use the jails to

harm the inmates so that they will never be a threat to the

population again.”

[3] The BIA summarily rejected (or ignored) these find-

ings with the oblique statement that “while we acknowledge

2

The IJ was careful to base his finding of torture on “severe suffering”

rather than “severe pain.”

RIDORE v. HOLDER 11999

that prison conditions in Haiti appear to have deteriorated

since we rendered our decision in [In re] J-E-, supra, that

does not undermine the rationale of our decision.” This short

shrift approach is error. The BIA cannot, under a clear error

standard of review, override or disregard evidence in the

record and substitute its own version of reality. See Kaplun,

602 F.3d at 271-73 & n.9. This is particularly so when the

BIA’s justifications for rejecting a finding of torture in In re

J-E- turned on the respondent’s failure to meet his burden to

produce evidence to support a finding of torture sanctioned by

the Haitian government. See In re J-E-, 23 I. & N. Dec. at

303. The IJ found that the evidence Ridore produced, both as

to worsened prison conditions and the Haitian government’s

complicity in creating those conditions, was sufficient to dis-

tinguish his case from In re J-E-, and the BIA was obligated

to explain why the IJ clearly erred in so finding.

For instance, in addressing the IJ’s findings regarding the

government’s hiring of likely abusive prison officials, the

BIA tersely concluded that “the Immigration Judge’s leap,

from noting that persons accused of committing human rights

abuses have been placed in charge of some of Haiti’s prisons,

to his conclusion that the government, therefore, put those

people in charge because it wishes to have the prison popula-

tion subjected to torture [is] illogical.” Such a conclusory pro-

nouncement does not constitute clear error review. If it is true

that the Haitian government has a policy of placing accused

human rights violators in charge of prisoners, as the IJ found

it does, then there is nothing illogical in inferring the govern-

ment intends to put those prisoners at risk of cruel, abusive

treatment that would qualify as “severe suffering” or “torture”

— as the IJ found.3 If the BIA found clear error in the IJ’s evi-

dentiary basis for his finding, it surely did not reveal what that

3

The BIA did not appear to dispute the IJ’s factual predicate that “per-

sons accused of committing human rights abuses have been placed in

charge of some of Haiti’s prisons.”

12000 RIDORE v. HOLDER

error was. Instead, it appears to have relied simply on its own

interpretation of the facts, which is not clear error review.

2. Whether Haiti’s detention policy is a lawful sanction

[4] “Torture does not include pain or suffering arising only

from, inherent in or incidental to lawful sanctions. Lawful

sanctions include judicially imposed sanctions and other

enforcement actions authorized by law . . . but do not include

sanctions that defeat the object and purpose of the Convention

Against Torture to prohibit torture.” 8 C.F.R. § 1208.18(a)(3).

The IJ decided that, because “[t]he Haitian constitution makes

it unlawful to detain persons not involved in criminal activi-

ty,” “the Haitian government’s policy of indefinite detention

of aliens not being charged with a crime in Haiti can[not] con-

stitute legal sanctions.” Explaining this conclusion, the IJ

cited the declining “deplorable” conditions discussed above

and the minor nature of Ridore’s crimes.4 Specifically, the IJ

found Ridore’s theft convictions to have involved minor

offenses, and explained at some length why they could not

justify “long term incarceration” under such life-threatening

conditions as an appropriate, lawful sanction. Without dis-

cussing these findings and analysis, the BIA simply relied on

its “contrary result” in In re J-E- that held that “Haiti’s deten-

tion policy does appear to be a lawful sanction designed to

protect the populace from criminal acts committed by Hai-

tians who are forced to return to the country after having been

convicted of crimes abroad.” It said nothing about the IJ’s

analysis of Ridore’s minor criminal record and why prolonged

imprisonment of Ridore under conditions amounting to tor-

ture would not be a lawful sanction.

4

It is not clear whether the IJ’s reference to the Haiti constitution, which

existed at the time of the BIA’s decision in In re J-E-, was an independent

ground for his rejection of a legal sanction, or simply part of his reasoning

why Ridore’s indefinite detention for his minor offenses could not, consis-

tent with the constitution, be a legal sanction. Again, we do not know how

the BIA understood the reference.

RIDORE v. HOLDER 12001

Moreover, it is notable that In re J-E- used the term “indefi-

nite detention” in reference to a procedure whereby, pending

determination of a release date by a commission that meets

irregularly, “detainees may be held for weeks in police hold-

ing cells before they are released.” In re J-E-, 23 I. & N. Dec.

at 293, 300-01 (emphasis added). Previously the processing

took no more than a week. Id. at 300. In this case, the IJ found

that Ridore risks detention of a much greater duration, well

beyond some “weeks.” The IJ explained that Ridore “is facing

a long time imprisonment” because of his lack of family sup-

port in Haiti, such that Ridore will “very likely” suffer pro-

longed exposure to the life-threatening prison conditions that

constitute “torture.” Here, too, the BIA ignored this signifi-

cant factual distinction between Ridore’s “indefinite deten-

tion” and that involved in In re J-E-, a distinction that further

undercuts the BIA’s rationale in that case for finding Haiti’s

prison policy to be a lawful sanction.

3. Whether Ridore is likely to be subject to torture

A petitioner is eligible for CAT protection only when he

can establish by a preponderance of the objective evidence

that “it is more likely than not that he or she will be subject

to torture upon removal.” In re J-E-, 23 I. & N. Dec. at 302.

The BIA said, “[W]hile we acknowledge that the record

reflects isolated acts of torture in Haiti’s prisons, as we noted

in [In re] J-E-, supra, such evidence is insufficient to establish

that it is more likely than not that this particular respondent

will be tortured.” Once again, this misapprehends and thus

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

IJ did not find that Ridore was likely to be tortured just

because there were “acts of torture in Haiti’s prisons.”

Rather, as we have explained above, he found based on

Karshan’s report that Ridore was likely to be tortured

because, unlike the respondent in In re J-E-, Ridore did not

have family members in Haiti and would therefore face a very

prolonged period of detention under the life-threatening con-

12002 RIDORE v. HOLDER

ditions that make such imprisonment almost “a death war-

rant.” The IJ based his factual findings on the evidentiary

record, particularly Karshan’s expert report and testimony

regarding “the conditions in Haiti for deported criminal

aliens. She note[d] that upon their arrival in Haiti, criminal

deportees are immediately turned over to the police authori-

ties who intern these individuals in prisons. They are held in

prisons for long periods of time while their cases are

reviewed. She note[d] that these individuals are not released

except to family members who often have to agree that they

will be imprisoned should they not make the deportees avail-

able to the police when requested.”

The IJ credited Karshan’s opinion that “if [Ridore] was

returned back to his country [he] could expect a long deten-

tion in one of the various prisons scattered throughout Haiti.

Because he has no family in that country, the likelihood of

him being released would be virtually nonexistent. Because of

the conditions in these prisons, they would for [Ridore] be life

threatening either from disease or malnutrition, as well as pos-

sibly the routine brutality of those institutions.” Accordingly,

the IJ found that “clearly [Ridore] upon his return back to

Haiti will be turned over to the Haitian authorities who will

immediately intern him in one of their prison facilities where

he will be held indefinitely while the authorities determine

what should be done with him.” The IJ found that, unlike the

respondent in In re J-E-, Ridore “has no family in Haiti who

can arrange with the authorities to have [him] released into

their custody.” The BIA did not address these findings.

[5] To summarize, throughout its CAT ruling the BIA

failed to grapple with the evidentiary record in this case and

to specifically address any clear errors the IJ made in his fac-

tual findings based on that evidence — evidence showing that

both Haiti’s current prison conditions and Ridore’s personal

circumstances are different from the record that prompted the

BIA’s ruling in In re J-E-. The BIA in In re J-E- faulted the

respondent for not carrying his burden of proof. See In re J-

RIDORE v. HOLDER 12003

E-, 23 I. & N. Dec. at 303. Ridore, on the other hand, pro-

duced current documentary and expert evidence to show con-

ditions have worsened and Ridore is at risk of torture. The IJ

credited that evidence and issued a detailed and reasoned

analysis of the facts existing in 2005 — four years later than

In re J-E-. He found, on these facts, Ridore’s case to be mate-

rially distinguishable.

[6] Rather than address the IJ’s fact-based determinations,

the BIA simply invoked statements from In re J-E- as if they

were still factually correct and ignored the IJ’s findings. That

is not clear error review. It is not even apparent it would suf-

fice as adequate de novo review. In any event, the BIA cannot

disregard the IJ’s findings and substitute its own view of the

facts. Either it must find clear error, explaining why; or, if

critical facts are missing, it may remand to the IJ. See Rodri-

guez, 683 F.3d at 1177 (“If the BIA concludes that it cannot

properly review the IJ’s decision without further factual

development of the record, then the Board must remand the

case to the IJ so that he may make the requisite factual find-

ings.”). The BIA did neither here, so we are compelled to

grant Ridore’s petition and remand to the BIA to reconsider

the IJ’s decision granting CAT relief, applying the clear error

standard of review.

II. Cancellation of Removal

The Attorney General may cancel removal in the case of an

alien who is inadmissible or deportable if the alien “(1) has

been an alien lawfully admitted for permanent residence for

not less than 5 years, (2) has resided in the United States con-

tinuously for 7 years after having been admitted in any status,

and (3) has not been convicted of any aggravated felony.” 8

U.S.C. § 1229b(a). Even when an alien meets these eligibility

requirements, however, he or she must establish that relief is

warranted as a matter of discretion. See In re C-V-T-, 22 I. &

N. Dec. 7, 10 (BIA 1998). In exercising discretion, the IJ must

consider “the record as a whole,” and “balance the adverse

12004 RIDORE v. HOLDER

factors evidencing the alien’s undesirability as a permanent

resident with the social and humane considerations presented

[on] his (or her) behalf to determine whether the granting of

. . . relief appears in the best interest of this country.” Id. at

11 (internal quotation marks omitted).5 The IJ found that

Ridore had established the statutory prerequisites and, after

balancing the favorable and negative considerations, con-

cluded that he was entitled to cancellation of removal. On

DHS’s appeal, the BIA also reversed this ruling.

[7] As noted previously, although the BIA must review the

IJ’s factual findings under a clearly erroneous standard, see 8

C.F.R. § 1003.1(d)(3)(i), it “may review questions of law, dis-

cretion, and judgment . . . de novo,” id. § 1003.1(d)(3)(ii)

(emphasis added). Here, the BIA held that “when balancing

the social and humane considerations presented in [Ridore’s]

favor against the adverse factors evidencing his undesirability

as a permanent resident, the Immigration Judge gave dispro-

portionate weight to the evidence of potential hardship to

[Ridore] in Haiti as a criminal deportee.” The BIA reasoned

that “[c]arried to its logical conclusion, the Immigration

Judge’s analysis appears to suggest that any criminal alien

from Haiti who is otherwise eligible to apply for cancellation

of removal . . . would automatically be entitled to such relief.

. . . Such a conclusion cannot stand.” The BIA was “not per-

5

“[F]avorable considerations include such factors as family ties within

the United States, residence of long duration in this country (particularly

when the inception of residence occurred at a young age), evidence of

hardship to the respondent and his family if deportation occurs, service in

this country’s armed forces, a history of employment, the existence of

property or business ties, evidence of value and service to the community,

proof of genuine rehabilitation if a criminal record exists, and other evi-

dence attesting to a respondent’s good character.” Id. Negative consider-

ations include “the nature and underlying circumstances of the grounds of

exclusion or deportation (now removal) that are at issue, the presence of

additional significant violations of this country’s immigration laws, the

existence of a criminal record and, if so, its nature, recency, and serious-

ness, and the presence of other evidence indicative of a respondent’s bad

character or undesirability as a permanent resident of this country.” Id.

RIDORE v. HOLDER 12005

suaded that [Ridore’s] negative equities in this case [we]re

outweighed by the positive equities in his favor,” and vacated

the IJ’s grant of cancellation of removal. Ridore argues that

here, too, the BIA erroneously reviewed the IJ’s factual find-

ings de novo and engaged in its own factfinding. As explained

below, we hold that for the most part, the BIA gave proper

deference to the IJ’s factual findings. However, in light of our

remand of Ridore’s CAT protection claim and the BIA’s con-

clusion that the IJ gave “disproportionate weight” to Ridore’s

“potential hardship” in Haiti, we find it appropriate to vacate

the BIA’s ruling and remand for reconsideration of cancella-

tion of removal as part of its reconsideration of CAT relief.

To limit the scope of this part of our remand, we shall address

Ridore’s challenges to the BIA’s ruling on cancellation of

removal.

Ridore points to the BIA’s articulation of the positive and

negative equities, asserting that the BIA’s list of equities dif-

fered from those set forth by the IJ, and the BIA therefore

“overturn[ed] the IJ’s findings and enter[ed] its own findings

of fact.” We disagree. Starting with the positive equities,

Ridore argues that the BIA erred by failing to explicitly dis-

cuss two positive equities the IJ identified. First is the hard-

ship that Ridore’s removal would cause his father. The IJ,

however, made no such finding, but rather the opposite:

The respondent in this case has had a life of being

transient and having little or no contact with his fam-

ily. Clearly, his father will not suffer any physical

hardships as a result of the respondent’s removal

from the United States. The respondent’s father does

not rely on the respondent for financial help, let

alone any personal assistance that the respondent

gives the respondent’s father. This is based on the

fact that he has been separated from his family since

approximately 1994.

Second, Ridore argues that the BIA did not discuss the trauma

he experienced upon finding the bodies of his brutally mur-

12006 RIDORE v. HOLDER

dered mother and grandmother, an experience the IJ believed

led to “a majority” of Ridore’s problems, particularly his

becoming an alcoholic. The IJ, however, did not find this to

be so much a positive equity but more a mitigating one that

ultimately did not justify Ridore’s criminal behavior. Rather,

he found that Ridore’s criminal history reflected “an individ-

ual who had little or no concern for the laws of this country,”

and whose alcoholism reduced the probability that Ridore

would recover from his addiction and “turn [his] life around”

to become a contributing member of society.

Ridore also contends that the BIA improperly relied on four

negative equities the IJ did not find. These contentions are

plainly contrary to the record. First, the BIA’s statement that

he had a “spotty” employment history echoes the IJ’s descrip-

tion of Ridore’s work history “in the last few years” as at best

“very spotty, going from one job to another.” Second, the

BIA’s statement that Ridore “has no history of service in this

country’s armed forces” repeats the IJ’s finding that “respon-

dent cannot show any military service.” Third, the BIA did

not, as Ridore contends, find “as if it were reviewing the case

for the first time” that he does not “have property or business

ties” in the United States. In fact, the IJ found that Ridore had

“little or no community ties,” and his descriptions of Ridore’s

transient lifestyle and spotty work history directly support the

BIA’s statement. Finally, the BIA’s statement that there was

“no proof of genuine rehabilitation in the record evidence that

the Immigration Judge relied on” is accurate. Ridore himself

testified that he “had never received treatment” for his use of

drugs and alcohol. The IJ also remarked, “One wonders how

often a person needs to be convicted of drunk driving before

one should understand that he has an alcohol problem and do

something about it.”

We therefore reject Ridore’s arguments that the BIA

reviewed the IJ’s findings on positive and negative equities de

novo or engaged in its own factfinding. The BIA properly

deferred to the IJ’s factual findings with respect to the equities

RIDORE v. HOLDER 12007

Ridore challenges, citing such findings and the record as it

recited each of Ridore’s criminal convictions, his immigration

history and his family background. Upon its weighing of these

equities, the BIA made the discretionary judgment that these

facts did not warrant the grant of cancellation of removal,

holding that “the Immigration Judge gave disproportionate

weight to the evidence of potential hardship to [Ridore] in

Haiti as a criminal deportee,” when comparing such evidence

to the strong negative equities.

[8] Such review is largely appropriate. See Matter of A-S-

B-, 24 I. & N. Dec. 493, 498 (BIA 2008) (the BIA did not “vi-

olate[ ] the prohibition against fact-finding on appeal” where

it “relied on the predicate facts found by the Immigration

Judge and did not evaluate any ‘new’ evidence submitted on

appeal”), abrogated on other grounds by Huang v. Attorney

Gen., 620 F.3d 372 (3d Cir. 2010). However, as explained in

our discussion of CAT relief, the BIA failed to give proper

deference to the IJ’s factual findings regarding conditions in

Haiti. Those findings constitute “evidence of potential hard-

ship to [Ridore] in Haiti as a criminal deportee” — the very

evidence the BIA found insufficient to outweigh the negative

equities. Because the BIA failed to credit the IJ’s findings

supporting his conclusion that Ridore has a likely risk of

being tortured in Haitian prisons, and will be revisiting that

issue on remand, the BIA will necessarily have to reconsider

whether the IJ “gave disproportionate weight to the evidence

of potential hardship to [Ridore] in Haiti as a criminal depor-

tee.” Accordingly, we vacate and remand the BIA’s ruling on

cancellation of removal so it may reconsider that ruling in tan-

dem with its clear error review of Ridore’s entitlement to

CAT relief.

CONCLUSION

We grant Ridore’s petition for review. We remand to the

BIA to review the IJ’s CAT protection findings for clear

12008 RIDORE v. HOLDER

error, and to reweigh the cancellation of removal equities

accordingly.

PETITION FOR REVIEW GRANTED AND

REMANDED.