RISVIN DE LEON LOPEZ V. MERRICK GARLAND

FILED

OCT 21 2022

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

RISVIN VALDEMAR DE LEON No. 20-71529

LOPEZ,

Agency No.

Petitioner, A200-569-789

v.

OPINION

MERRICK B. GARLAND, Attorney

General,

Respondent.

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted September 13, 2021

Pasadena, California

Before: Ronald M. Gould, Marsha S. Berzon,

and Daniel P. Collins, Circuit Judges.

Opinion by Judge Berzon;

Dissent by Judge Collins

SUMMARY *

Immigration

Granting Risvin Valdemar De Leon Lopez’s petition for

review of a decision of the Board of Immigration Appeals

upholding the denial of protection under the Convention

Against Torture, and remanding, the panel concluded that

the record in this case compelled the conclusion that two of

De Leon’s attackers during his first attack were police

officers, that the police officers’ participation in the incident

showed acquiescence on the part of the Guatemalan

government, and that the agency disregarded several

important circumstances in concluding that De Leon would

not likely be subjected to future torture.

The agency found that De Leon’s belief that some of his

attackers during his first incident were police officers was

based on speculation, and that the two individuals wearing

police uniforms did so only to make themselves look like

police officers. The panel concluded that the agency’s

assessment was not based on substantial evidence. The

panel explained that De Leon presented four significant

pieces of evidence showing that the two individuals were

police officers: first, De Leon had known the two men for

about twenty years before the incident, and had been told by

people in his small town that they were in fact police

officers; second, the two individuals were wearing police

uniforms at the time of the attack; third, they were armed

*

This summary constitutes no part of the opinion

of the court. It has been prepared by court staff for

the convenience of the reader.

with visible handguns that De Leon recognized as of the

kind, and in the holstered position, typical of national police

officers; and fourth, the Public Ministry to which De Leon

reported the attack indicated that the two individuals had left

the police force shortly after the attack, thus confirming that

they were members of the police during the incident. The

panel concluded that the agency’s reasons for doubting that

the individuals were police officers was not supported by

substantial evidence.

Because the record compelled the conclusion that the

two individuals involved in De Leon’s attack were police

officers, the panel concluded that the agency’s determination

that De Leon did not establish government acquiescence

could not stand. The panel explained that government

acquiescence is not required when instances of past torture

are directly inflicted by a public official, even if that official

has gone “rogue” by acting outside his or her

authority. Moreover, the panel noted that the two

individuals not only participated in De Leon’s beating, but

also acquiesced during that incident in the actions of the

other assailants by failing to use their official authority to

prevent De Leon from being repeatedly stabbed.

In light of the ambiguity in the BIA’s conclusion with

respect to the question whether De Leon was subjected to

past torture and the absence of any explanation for a

conclusion on that question, if made, the panel remanded

that issue for further consideration. The panel also

concluded that the agency’s analysis of the probability that

De Leon would be subjected to future torture disregarded

several critical factors, including myriad contextual

considerations pertinent to the likelihood of future torture,

and so must be redone.

Dissenting, Judge Collins wrote that the majority’s

decision resurrected many of the same flawed legal

standards that the court previously applied in immigration

cases, and that were expressly rejected by the Supreme Court

in its unanimous decision in Garland v. Ming Dai, 141 S. Ct.

1669 (2021). First, by taking as credible every detail in De

Leon’s testimony, even though the IJ found only that De

Leon testified in a “generally” or “essentially” credible

manner, the majority disregarded the principle that the

agency is free to credit part of a witness’ testimony without

necessarily accepting it all. Second, even if the majority

were right in thinking that every detail of De Leon’s

testimony should be deemed credible, the majority further

erred by effectively reviving the “deemed true” rule. And

third, the majority disregarded the Supreme Court’s clear

instruction that the court may not overturn a factual finding

if the record contains contrary evidence of a kind and quality

that a reasonable factfinder could find sufficient.

COUNSEL

Karla L. Kraus (argued), Kraus Law Corporation, San

Diego, California, for Petitioner.

John B. Holt (argued), Juria J. Jones, and Scott M.

Marconda, Trial Attorneys; Claire L. Workman, Senior

Litigation Counsel; Leslie McKay, Assistant Director;

Jeffrey B. Clark, Acting Attorney General; Civil Division,

Office of Immigration Litigation, Washington, D.C.; for

Respondent.

DE LEON LOPEZ V. GARLAND 1

OPINION

BERZON, Circuit Judge:

Risvin Valdemar De Leon Lopez (“De Leon”), a native

and citizen of Guatemala, petitions for review of a Board of

Immigration Appeals (“BIA”) decision dismissing his

appeal of an Immigration Judge’s (“IJ”) order denying his

application for relief under the Convention Against Torture.

We conclude: (1) the record in this case compels the

conclusion that two of De Leon’s attackers were police

officers during a July 2011 incident; (2) De Leon showed

acquiescence on the part of the Guatemalan government with

respect to that incident because government officials—

namely, the two police officers—directly participated in the

incident; and (3) the record indicates that the IJ and BIA’s

conclusion that De Leon is not likely to be subjected to

torture with government acquiescence if returned to

Guatemala disregards several important circumstances

pertinent to evaluating the likelihood of future torture. In

light of these errors, we grant the petition and remand for the

agency to reconsider De Leon’s application for relief.

I.

De Leon entered the United States without inspection in

2003 and stayed until the middle of 2007. He returned to

Guatemala then because his oldest daughter was sick and

stayed until the end of the year. De Leon next entered the

United States, again without inspection, in 2008. He stayed

until he pleaded guilty to driving under the influence and was

removed, in 2011. De Leon entered the United States

without inspection once more on January 5, 2012. He

testified that on his return to Guatemala in 2011, he

experienced two episodes of violence at the hands of the

Guatemalan police.

2 DE LEON LOPEZ V. GARLAND

A.

De Leon testified as to what happened to him in

Guatemala as follows:

1. De Leon was attacked in July 2011, two days after he

arrived back in Guatemala. Earlier that day, De Leon had

left his home in Aldea Galvez, a small village that is part of

a larger town, Flores Costa Cuca, to visit a park with two

friends. The three of them returned on a bus that afternoon.

As they stepped off the bus, De Leon and his friends were

approached by Melvin Baten and Elder Ramos. Baten and

Ramos knew De Leon had just returned from the United

States and so asked him for money. When De Leon refused,

he was attacked by Baten and Ramos; Israel Augustin

Alvarado, Oljoel Pascual Gomez,1 and Minor Rojas also

participated in the attack. At the time of the attack, Alvarado

and Gomez were dressed in the uniform of the National Civil

Police (“PNC”), carried handguns consistent with those of

PNC officers, and were known by the Aldea Galvez

community to be police officers.

The assailants started by “throwing rocks at [De Leon]

with slingshots.” De Leon was hit in the chest and legs.

When he bent down from pain, the attackers came towards

De Leon and “stepped on [his] right hand.” They beat him

with their fists and kicked him. Baten then “stabbed [De

Leon] with a knife on the hand” and Ramos stabbed De Leon

“with a machete on [his] right arm” and his “left shoulder.”

The assailants took De Leon’s money and told him “we are

going to kill you.” Alvarado and Gomez never tried to stop

the other men from stabbing De Leon and actively

1

At times, the record refers to Gomez as Joel instead of Oljoel, and

as Lopez or Lopez Gomez instead of Gomez. This opinion will refer to

him as Gomez.

DE LEON LOPEZ V. GARLAND 3

participated in the beating. De Leon tried to defend himself,

but Gomez hit him on the head with either a gun or baton,

making De Leon lose consciousness. De Leon was later told

by a relative that he was unconscious for half an hour.

De Leon knew all five men before the incident and,

according to the IJ, “identified [them] in great detail” in his

testimony. The men lived in the same small town as De

Leon; some had gone to school or worked with him. With

respect to Alvarado and Gomez, De Leon had known each

of them for around twenty years before the incident. De

Leon testified that he knew Alvarado and Gomez worked for

the police in the Flores Costa Cuca station because of

“conversations [De Leon] had with people” in his small

town, where “everybody knows what’s going on.”

De Leon’s friends, who had run away, returned to the

scene of the incident along with De Leon’s aunt and uncle;

the relatives thereafter witnessed part of the attack. De

Leon’s aunt called the police. By the time the police arrived,

the five assailants had left. The summoned police officers

spoke with several witnesses at the scene of incident and

later filed a report detailing the location of the incident and

the names of De Leon’s attackers. The names were given to

the police by persons at the scene, who “didn’t give [their

own] names for fear of [retaliation].”

The police report said that the witnesses had identified

“the individuals” who attacked De Leon as members of the

18th Street Gang. De Leon clarified in his testimony that

three of the men (Ramos, Baten, and Rojas) were members

of that gang. He also stated that he heard from the neighbors

in his small town that Alvarado and Gomez were also

“involved together with the gangs” in an extortion ring

targeting local small businesses. De Leon testified that he

4 DE LEON LOPEZ V. GARLAND

never saw the assailants again; he believed they may have

gone to Mexico.

That day, De Leon was taken to a hospital in Coatepeque.

He received stitches on his right bicep, seven stitches on his

left shoulder, eight stitches on his hand, and sixteen stitches

on his head. De Leon also had “two tendons cut from [his]

three fingers” that “were stitched internally,” and cuts on his

neck. The doctors prescribed medication for pain and to

prevent inflammation, infection, and tetanus.

De Leon went to a clinic close by Flores Costa Cuca

three times afterward for wound treatment. He could not

work for the first three months after the attack, and it took

approximately one year for him to recover physically from

his injuries. De Leon also “consulted with a psychologist,”

and “complained of having suffered psychological damage,

such as difficulty sleeping, memory loss, [and] panic

attacks.” His psychological trauma persisted at the time of

the hearing.

After two months passed, De Leon realized that “nothing

was done” about the attack: the police “didn’t go after the

people that had beaten [him]” and his assailants “were never

caught.” Convinced that the police would not follow up on

the report from July without being prompted, De Leon in

September 2011 again reported the attack to the PNC of

Flores Costa Cuca, the same office where Alvarado and

Gomez worked as police officers. After De Leon told an

officer at the Flores Costa Cuca station that two of their own

officers had attacked him, the officer stated “[t]hat they

couldn’t deal with [his] case there,” but told De Leon he had

“a very strong case, that it was attempted murder, [and] that

[he] should go to . . . [the] public ministry.” De Leon

understood the officer’s reference to “very strong case” as

indicating that the Flores Costa Cuca police “would be

DE LEON LOPEZ V. GARLAND 5

incapable of dealing with [his] kind of case[]” as it was “too

difficult” and required “a deeper investigation.” De Leon

emphasized his belief that the police were “corrupt,” that

they “let themselves be bribed very easily,” and that he

doubted the coworkers of Alvarado and Gomez would be

willing to take action against them.

As advised by the local police office, De Leon went to

the Public Ministry of Coatepeque, a prosecutorial and

investigative government agency semi-independent from the

Guatemalan executive branch, to report the incident. His

statement was taken and an investigation opened. The

Public Ministry informed De Leon that Ramos, Baten, and

Rojas were already under investigation because other

complaints had been filed against them. The record also

suggests that the Public Ministry indicated to De Leon that

Alvarado and Gomez left the police force shortly after the

attack. Specifically, the following exchange occurred

between De Leon and the IJ:

IJ to De Leon: So after you were beaten, the two men

involved who wore the police uniforms, stopped

working for the police, as far as you know.

De Leon to IJ: Yes.

IJ to De Leon: And how do you know that? How did

you learn that?

De Leon to IJ: The public ministry tried to investigate

them.

IJ to De Leon: And they had already left their police job.

De Leon to IJ: That’s right.

6 DE LEON LOPEZ V. GARLAND

De Leon interacted with officials from the Public Ministry

about three times.

In addition, De Leon filed a complaint with the Office of

the Attorney General. He believed the Office issued

warrants against the five assailants. De Leon met with

officials from the Attorney General’s Office four times. To

De Leon’s knowledge, as of January 2018, his assailants had

not been tracked down and no one had been taken into

custody for his assault.

2. De Leon had a second incident with Guatemalan

police. In October 2011, De Leon went with his mother to

Mexico, about an hour and a half from his home, to purchase

goods for resale in her small store in Guatemala. Their

return bus was stopped by police officers. The officers told

De Leon and his mother to get out of the bus because “they

wanted some money, [or] if not they were going to take the

merchandise.” When De Leon refused, the officers

handcuffed him and took him to the central police station.

At the station, De Leon was brought to a room where

three officers took turns beating him with their hands and

batons and kicking him with their feet. He was detained for

around two to two and a half hours. Before leaving, De Leon

told the officers “that [he] was going to the human rights

[organization]” to report them. The police officers then told

De Leon that “if [he] went to the human rights organization

that [he] was going to have problems with them.”

De Leon bought acetaminophen and was injected with an

anti-inflammatory medication for his injuries. The next day,

De Leon made a report to a government-affiliated human

rights organization in Coatepeque. The organization took

his statement and said they were going to do an

investigation. But they never followed up with De Leon, and

DE LEON LOPEZ V. GARLAND 7

he never received “any information about them doing any

type of investigation.”

3. Afraid to stay in Aldea Galvez after the police said

“[he] was going to have problems with them” for making the

human rights report, De Leon went to Guatemala City in

December 2011. While he was in Guatemala City, two men

carrying weapons went to his uncle’s house in Aldea Galvez

“and asked [about De Leon’s] whereabouts.” Two armed

men also went to the agricultural field where De Leon had

worked and to the cemetery near his home, asking for him.

De Leon feared that these men were the officers who had

beaten him in October 2011 and that they wanted to carry

out their earlier threats and murder him, as he had made a

human rights report against them. De Leon stayed in

Guatemala City for about one month and did not “have any

problems” there.

De Leon left Guatemala in January 2012 because he was

afraid of being “persecuted . . . or tortured or killed” by

police officers. He testified that as he was on his way to the

United States, his mother called and informed him that three

armed police officers had come to her home “at 1:00 in the

morning” looking for him. The officers told De Leon’s

mother they were searching for De Leon and “they were

going to come back and look for [him] later.”

B.

In June 2015, about three and a half years after De Leon

arrived back in the United States, he was detained by

Immigration and Customs Enforcement (“ICE”) after a

police call concerning an argument with his domestic

partner. ICE arrested De Leon and issued a Notice of

Intent/Decision to Reinstate Prior Order based on his June

2011 removal. De Leon expressed a fear of returning to

8 DE LEON LOPEZ V. GARLAND

Guatemala and was interviewed by an asylum officer. The

asylum officer found that De Leon had “established a

reasonable fear . . . that he could be tortured if he’s returned”

to Guatemala.

De Leon was then referred to an IJ and applied for relief

under the Convention Against Torture. At the June 2018

merits hearing before the IJ, De Leon testified to the facts

recited above about the two 2011 incidents. He averred that,

to his knowledge, the five men from the July 2011 incident

had not returned to Guatemala, but “it would be very easy

for them to find out” if De Leon returned to their small town,

because their family members live there. De Leon also

testified to his fear that the five men would seek to “eliminate

him” upon his return, because “they would believe that [he]

would continue with [his] case” against them. De Leon did

not believe that the police would protect him from any

attacks because, he stated, the police in Guatemala tend to

be corrupt and generally neglect their duties. De Leon also

noted that the police accept bribes, and he felt it would be

“likely” or “probable” that the attackers’ families would

bribe the police to keep them from protecting De Leon.

De Leon also voiced his fear that the police from the

October 2011 incident would seek to “kill him” if he

returned to Guatemala, “because they are aware that he had

reported them to the human rights organization.” He noted

that he would not feel safe even if he moved to another city

in Guatemala such as the capital city, because when corrupt

officers “really want you—when they want to go after

someone they go to Guatemala [City] and they go look for

you.”

During the merits hearing, the IJ initially would not

accept the latest country conditions report for Guatemala on

the ground that De Leon’s counsel should have filed it with

DE LEON LOPEZ V. GARLAND 9

the court earlier. After De Leon’s counsel pointed out that

the “regulations say that the court must refer to” the country

conditions report, the IJ accepted the country conditions

report, moments before rendering her oral decision.

The country conditions report states that one of the

“[p]rincipal human rights abuses” in Guatemala is

“widespread institutional corruption, particularly in the

police” force. It indicates that “abuse and mistreatment” of

civilians at the hands of PNC members is common; that there

are “credible reports of extrajudicial arrests [and] illegal

detentions”; that the Guatemalan police frequently accept

bribes or extort civilians; and that the government lacks

effective mechanisms to investigate and prevent such

wrongdoing. Finally, the report indicates that non-corrupt

police officers commonly neglect to investigate or punish

their corrupt peers beyond merely “transferr[ing]” them to

other offices, which has led to widespread “impunity” for

corrupt officials.

At the conclusion of the merits hearing, the IJ found that

“[e]ssentially [De Leon] testified in a credible manner” but

“ha[d] not established that it is more likely than not that he

will be tortured with the consent or acquiescence of the

authorities in Guatemala” should he be returned there. The

IJ concluded that his “testimony was based in significant part

on his speculation of who harmed him and why they harmed

him and who might harm him in the future.” “Speculation

alone,” the IJ stated, “isn’t sufficient to establish

respondent’s case.”

De Leon appealed to the BIA. The BIA agreed with the

IJ that De Leon’s “assertion that several of the individuals

who harmed him in Guatemala were police officers seems to

be based on his own speculation.” The BIA dismissed De

Leon’s appeal, concluding that: (1) the two attackers who

10 DE LEON LOPEZ V. GARLAND

appeared to be police officers were not actually police

officers; (2) even if the two attackers were police officers,

“the record does not indicate that they tortured [De Leon]

and that the government of Guatemala acquiesced to such

torture”; and (3) “the record indicates that [De Leon] could

. . . live in Guatemala City or another part of Guatemala

without any harm.” The BIA did not mention the country

conditions report. This petition for review followed.

C.

“Where, as here, the BIA agrees with the IJ’s reasoning,

we review both decisions.” Garcia-Martinez v. Sessions,

886 F.3d 1291, 1293 (9th Cir. 2018). The BIA’s

interpretation of legal questions is reviewed de novo. Zheng

v. Ashcroft, 332 F.3d 1186, 1193 (9th Cir. 2003). With

regard to the factual findings underlying an IJ or BIA

determination, the court reviews for substantial evidence,

meaning that the determination must be supported by

“reasonable, substantial, and probative evidence on the

record.” Lopez v. Sessions, 901 F.3d 1071, 1074 (9th Cir.

2018). If any reasonable adjudicator would be compelled to

conclude to the contrary of the IJ or BIA based on the

evidence in the record, then the finding is not supported by

substantial evidence. Garland v. Ming Dai, 141 S. Ct. 1669,

1677 (2021) (citing 8 U.S.C. § 1252(b)(4)(B)). But if the

record contains evidence supporting the IJ or BIA’s

conclusion and a reasonable factfinder could find that

evidence sufficient, a reviewing court cannot overturn the

agency’s factual determination. Id.

Several additional points are worth noting about the

substantial evidence standard. First, although the standard is

“highly deferential,” id., “deference does not mean

blindness,” Garcia v. Wilkinson, 988 F.3d 1136, 1142 (9th

Cir. 2021) (quoting Parada v. Sessions, 902 F.3d 901, 909

DE LEON LOPEZ V. GARLAND 11

(9th Cir. 2018)), and no deference is due to “inference[s]

drawn from facts which are uncertain or speculative and

which raise only a conjecture or a possibility,” Cal. State

Water Res. Control Bd. v. FERC, 43 F.4th 920, 930 (9th Cir.

2022) (quoting Woods v. United States, 724 F.2d 1444, 1451

(9th Cir. 1984)). Second, the substantial evidence standard

requires review of the record “as a whole,” not a “specific

quantum of supporting evidence.” Garrison v. Colvin, 759

F.3d 995, 1009 (9th Cir. 2014) (quoting Lingenfelter v.

Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007)); see also

Bringas-Rodriguez v. Sessions, 850 F.3d 1051, 1059 (9th

Cir. 2017). Third, applying the substantial evidence standard

after the Supreme Court’s decision in Ming Dai, the Ninth

Circuit has set aside the BIA’s factual findings when the

basis for the findings was insufficient or illogical. See, e.g.,

Gonzalez-Castillo v. Garland, 47 F.4th 971, 979–80 (9th

Cir. 2022); Ballinas-Lucero v. Garland, 44 F.4th 1169, 1180

(9th Cir. 2022); Barseghyan v. Garland, 39 F.4th 1138,

1145–46 (9th Cir. 2022); Plancarte Sauceda v. Garland, 23

F.4th 824, 835 (9th Cir. 2022); Munyuh v. Garland, 11 F.4th

750, 764 (9th Cir. 2021); Vasquez-Rodriguez v. Garland, 7

F.4th 888, 898–99 (9th Cir. 2021).

II.

The Convention Against Torture prohibits the United

States from returning anyone to a country where “it is more

likely than not that he or she would be tortured.” 8 C.F.R.

§ 1208.16(c)(2). In evaluating a Torture Convention claim,

“the IJ must consider all relevant evidence; no one factor is

determinative.” Maldonado v. Lynch, 786 F.3d 1155, 1164

(9th Cir. 2015) (en banc). Relevant evidence includes, but

is not limited to: (1) “evidence of past torture inflicted upon

the applicant”; (2) “evidence that the applicant could

relocate to a part of the country of removal where he or she

is not likely to be tortured”; (3) “evidence of gross, flagrant

12 DE LEON LOPEZ V. GARLAND

or mass violations of human rights within the country of

removal, where applicable”; and (4) “other relevant

information regarding conditions in the country of removal.”

8 C.F.R. § 1208.16(c)(3) (capitalization simplified).

Here, several of the IJ and BIA’s key factual findings and

legal conclusions regarding whether De Leon was subject to

past torture are not supported by the record, and the BIA’s

determination regarding the likelihood of future torture

disregards or mis-analyzes several pertinent considerations,

including the Guatemala country conditions report and the

threats of future harm made against De Leon.

A.

1. The IJ and BIA concluded that De Leon had not

established that his attackers during the July 2011 incident

were police officers. Instead, “these individuals wore police

uniforms or uniforms that made them look like police

uniforms but they were not . . . actually police employees”—

i.e., they were imposters. Although the IJ found De Leon

“credible” and did not doubt the sincerity of his belief that

two of his attackers were police officers, the IJ and the BIA

concluded that De Leon’s belief was “based on his own

speculation” and was “not supported” by the police report.

Those assessments are not supported by substantial

evidence.

De Leon presented four significant pieces of evidence

that two of his attackers, Alvarado and Gomez, were police

officers. First, De Leon had known Alvarado and Gomez for

about twenty years at the time of the incident. He had been

told that the two men were police officers by people in his

small town who were likely to know whether they were, in

fact, police officers. Second, Alvarado and Gomez were

wearing police uniforms at the time of the attack. Third,

DE LEON LOPEZ V. GARLAND 13

Alvarado and Gomez were armed with visible handguns that

De Leon recognized as of the kind and in the holstered

position typical of PNC officers. Fourth, the Public Ministry

in Coatepeque indicated to De Leon that Alvarado and

Gomez had left the police force shortly after the attack, thus

confirming that they were members of the PNC during the

July 2011 incident. Nothing in the IJ or BIA opinions

suggests that De Leon was inaccurate or mistaken with

regard to any of these factors.

The IJ and BIA nonetheless concluded that Alvarado and

Gomez were not actually police officers even though when

they attacked De Leon they were dressed and carried guns as

if they were. The record as a whole cannot be reasonably

understood to support this conjecture. See Garrison, 759

F.3d at 1009.

First, the IJ relied upon the police report about the

July 2011 incident, which identified “the individuals” who

attacked De Leon as associated with a street gang, for its

finding. The report does not support the IJ’s speculation.

The police report summarized what witnesses to the incident

said; it did not specifically name Alvarado and Gomez as

gang members; and it did not say that Alvarado and Gomez

were not police officers. It is, of course, possible for law

enforcement officers to be associated with a street gang. De

Leon testified that, according to the neighbors in his small

town, Alvarado and Gomez were “involved together with the

gangs” in an extortion ring targeting small stores. The

country conditions report indicates that such extortion is

widespread in Guatemala. On the record as a whole, the

absence in the police report of a statement that the two

individuals dressed as police officers were police officers is

not substantial evidence for the IJ’s finding.

14 DE LEON LOPEZ V. GARLAND

Second, the IJ characterized De Leon as “chang[ing] . . .

his testimony” with respect to whether Alvarado was a

police officer at the time of the attack. In its briefs to us, the

Government, going one step further, states that De Leon

“repeatedly testified that [Alvarado and Gomez] were

former police officers.”

De Leon never used the phrase “former police officers.”

He consistently explained in his 2018 testimony that both

Alvarado and Gomez were police officers at the time of the

July 2011 incident. For example, when directly asked if

“after you were beaten, the two men involved [in the July

2011 incident] who wore police uniforms, stopped working

for the police,” De Leon responded, “Yes.” And when De

Leon was specifically asked by the IJ when “one of the men,

Israel, used to work for the police,” he said “[i]n 2011 and

before then.”

The IJ focused on De Leon’s occasional use of the past

tense during his testimony, suggesting that De Leon was

inconsistent about whether Alvarado and Gomez were police

officers at the time they attacked him. What De Leon said

at his hearing was that Alvarado “used to work with the

police” and Gomez “also was working in the police.”

De Leon was testifying about an incident that had occurred

about seven years earlier, and Alvarado and Gomez had left

the police force after the incident. So, at the time of De

Leon’s testimony, it was accurate for him to say that the two

men used to work with the police. The IJ’s grammatical

dissection is both flatly incorrect, given the time frames, and

contradicted by De Leon’s specific explanation as to what he

meant by “used to work with the police.” Again, the IJ’s

inference is simply not supported by the factual record.

Finally, the IJ stated that De Leon “offered no cogent

explanation of why the police would take a report, list these

DE LEON LOPEZ V. GARLAND 15

individual’s names and then pretend they weren’t police if in

fact they were police officers.” She further remarked that

“[i]t’s clear if these two men had been police officers who

were actively working for the forces the authorities would

know that and they would be easy to identify and locate.”

Additionally, the IJ pointed out that the attackers from the

July 2011 incident fled the country, “indicating that they

feared the police.” The IJ ultimately concluded that

Alvarado and Gomez must have “wor[n] police uniforms or

uniforms that made them look like police,” but that “they

were not in fact actually police employees.”

Regarding the omission of the attackers’ occupations,

the police report did not mention the occupation of any of

the five attackers. So the omission of Alvarado’s and

Gomez’s occupation does not stand out as notable. Also, De

Leon did offer an explanation as to why the authorities

would decline to identify Alvarado and Gomez as police

officers in the police report—that officers in Guatemala

commonly neglect to investigate or punish their peers for

purported wrongdoing, preferring instead to look the other

way. The country conditions report supports De Leon’s

explanation.

Regarding the IJ’s suggestion that if Alvarado and

Gomez were police officers they would be easy to track

down, the record indicates that Alvarado and Gomez left the

police force and fled the country shortly after the July 2011

altercation. That Alvarado and Gomez left the country after

the attack supports an inference that they feared the police

but does not support the inference that they were not police

officers at the time of the attack. Corrupt police officers can

fear that they will be caught and prosecuted.

In addition, the IJ and BIA cite no evidence that gang

members in Guatemala dress up as police officers when

16 DE LEON LOPEZ V. GARLAND

extorting civilians. The idea that they would have done so

during the July 2011 incident is undermined by a fact that

the IJ and BIA glossed over—De Leon’s attackers from the

second incident in October 2011, who were also wearing

police uniforms, handcuffed him and brought him to the

central police station before they took turns beating him with

their hands, batons, and feet. That De Leon was beaten and

detained in a police station in October 2011 provides strong

evidence that his attackers from that incident were law

enforcement officers, thereby confirming that police officers

in De Leon’s area of Guatemala engage in beatings and

extortion.2 Again, the substantial evidence standard requires

consideration of the record as a whole, see Garrison, 759

F.3d at 1009; here, any inference that a beating by actual

police officers was improbable is belied by the evidence that

such a beating had actually occurred, in a police station.

One final point regarding whether Alvarado and Gomez

were police officers: At oral argument, there was a

suggestion that, even if Alvarado was a police officer,

Gomez may not have been, because De Leon indicated in his

2018 testimony that, at one time, he and Gomez had worked

together “harvesting coffee at a farm.” When De Leon was

asked what Gomez “did for a living at the time [De Leon]

returned to Guatemala in 2011,” De Leon stated that, like

Alvarado, Gomez “also was working in the police.”

De Leon explained he knew this not only because Gomez

was wearing a PNC uniform on the day of the July 2011

incident, but also because Gomez “live[d] in the same small

village,” where “everybody knows what’s going on.” That

De Leon and Gomez worked together at a coffee farm some

2

The IJ found that the October 2011 incident did not rise to the level

of past torture. The police officers’ extortion and beating of De Leon in

October 2011 nevertheless provide support for his statement that other

officers extorted and beat him in July 2011.

DE LEON LOPEZ V. GARLAND 17

time in the past does not supply the missing evidence

sufficient to find that Gomez was not an officer at the time

of the July 2011 attack.3

We conclude that the record compels the conclusion that

two of De Leon’s attackers were police officers during the

July 2011 incident. There is not substantial evidence in the

record—really, no evidence—that Alvarado and Gomez

were faux police officers. Put differently, no reasonable

factfinder could have concluded that Alvarado and Gomez

were imposters, dressed up like police officers but not

actually employed in the PNC police force, when they

attacked De Leon.

2. The dissent, citing to parts of the administrative

record not discussed at all in the IJ or BIA decisions or in the

briefing before this Court, argues that “this is most definitely

not a case in which the record compels acceptance of ” De

Leon’s statement that he had known Gomez and Alvarado

for twenty years and knew that they were police officers at

the time of the attack. Dissent at 37–40. The evidence cited

by the dissent to challenge De Leon’s credibility with respect

to the identity of the police officers cannot be the basis to

sustain the IJ’s decision, for three independent reasons.

First, the IJ’s credibility determination forecloses the

dissent’s own conclusions as to whether De Leon was

testifying to what he believed to be true. As Ming Dai

instructs, the Immigration and Nationality Act distinguishes

between “credibility” and “persuasiveness.” 141 S. Ct. at

1680–81. Although the IJ did not find the entirety of De

3

In any event, it is sufficient for the purpose of determining whether

De Leon suffered past torture at the hands of government officials that

one such official, Alvarado, participated in the attack. See infra pp. 19–

20.

18 DE LEON LOPEZ V. GARLAND

Leon’s testimony persuasive, she repeatedly concluded that

De Leon’s testimony was credible in the sense that De Leon

“believed that two of these men were police officers.” The

IJ noted that De Leon “identified [his attackers] in great

detail,” “stated . . . [that] they were wearing police

uniforms,” and “testified that he has known them for a long

time.” 4

“We may not supply a reasoned basis for the agency’s

action that the agency itself has not given.” Motor Vehicle

Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co.,

463 U.S. 29, 43 (1983). The dissent’s reliance on evidence

in the record that the government or the IJ could have raised

to challenge De Leon’s credibility but did not amounts to an

impermissible judge-made negative credibility finding that

directly conflicts with the agency’s own determination. See

Dissent at 37–40. But “the IJ is in the best position to assess

the trustworthiness of the applicant’s testimony,” Bassene v.

Holder, 737 F.3d 530, 536 (9th Cir. 2013), and its credibility

determinations are accorded “special deference,” Khadka v.

Holder, 618 F.3d 996, 1000 (9th Cir. 2010). The dissent’s

attempt to undermine De Leon’s credibility with portions of

the record never alluded to by or before the agency is

improper.

Second, under well-established Ninth Circuit precedent,

De Leon cannot be denied relief due to any alleged

inconsistencies in his testimony absent an opportunity to

respond to them. “If the IJ relies upon purported

inconsistencies to make an adverse credibility

4

The dissent accuses us of “reviv[ing] the very ‘presumption of

credibility’” rejected by Ming Dai. Dissent at 31. But our analysis rests

on the IJ’s credibility finding regarding De Leon’s belief that two of his

attackers were police officers, not on a presumption of credibility. The

IJ’s conclusion that De Leon’s belief was based on “speculation” speaks

to the persuasiveness of De Leon’s belief, not its credibility.

DE LEON LOPEZ V. GARLAND 19

determination, the IJ must provide the noncitizen with an

opportunity to explain each inconsistency . . . .” Barseghyan

v. Garland, 39 F.4th 1138, 1143 (9th Cir. 2022); see also

Rizk v. Holder, 629 F.3d 1083, 1088 (9th Cir. 2011),

overruled in part on other grounds by Alam v. Garland, 11

F.4th 1133 (9th Cir. 2021) (en banc). De Leon was not

provided with an opportunity to explain the alleged

inconsistencies the dissent raises for the first time in this

case. So, even if otherwise pertinent, the evidence cited by

the dissent could not be used to deny relief to De Leon under

binding precedent.

Third, at no point in the Government’s brief did it

challenge De Leon’s credibility or raise the alleged

inconsistencies offered by the dissent. “Generally, an

appellee waives any argument it fails to raise in its answering

brief.” United States v. Dreyer, 804 F.3d 1266, 1277 (9th

Cir. 2015) (en banc). None of the exceptions to the waiver

rule apply in this case; in fact, accepting the dissent’s sua

sponte credibility attack without offering De Leon an

opportunity to respond would create—not prevent—a

“miscarriage of justice.” Id.

3. The IJ and BIA reasoned that even if the July 2011

beating of De Leon constituted torture, the record does not

indicate that the government acquiesced in such torture.

That determination cannot stand if, as we conclude, the

record compels the conclusion that two of the attackers were

police officers. An applicant for relief under the Convention

Against Torture is “not required to show acquiescence” by

the government when instances of past torture are directly

inflicted by a public official, Avendano-Hernandez v. Lynch,

800 F.3d 1072, 1079–80 (9th Cir. 2015), even if that official

has gone “rogue” by acting outside his or her authority,

Barajas-Romero v. Lynch, 846 F.3d 351, 362 (9th Cir.

2017).

20 DE LEON LOPEZ V. GARLAND

Alvarado and Gomez directly inflicted severe pain and

suffering on De Leon by participating in the July 2011

beating. They also acquiesced during that incident in the

actions of the other assailants by failing to use their official

authority to prevent De Leon from being repeatedly stabbed

with a knife and a machete. See Ornelas-Chavez v.

Gonzales, 458 F.3d 1052, 1059 (9th Cir. 2006) (citing

8 C.F.R. § 208.18(a)(7)). As the record compels the

conclusion that Alvarado and Gomez were police officers at

the time of the incident, De Leon need not show any other

acquiescence on the part of the Guatemalan government. Id.

4. The Torture Convention defines torture as “any act by

which severe pain or suffering, whether physical or mental,

is intentionally inflicted on a person for such purposes as . . .

punishing him . . . for an act he . . . has committed . . . when

such pain or suffering is inflicted by, or at the instigation of,

or with the consent or acquiescence of, a public official

acting in an official capacity or other person acting in an

official capacity.” 8 C.F.R. § 1208.18(a)(1). The regulation

does not require that past torture or “the prospective risk of

torture be on account of certain protected grounds.”

Kamalthas v. INS, 251 F.3d 1279, 1280 (9th Cir. 2001).

“Acts constituting torture are varied, and include beatings

and killings.” Bromfield v. Mukasey, 543 F.3d 1071, 1079

(9th Cir. 2008) (citing Al-Saher v. INS, 268 F.3d 1143, 1147

(9th Cir. 2001)).

Here, Alvarado and Gomez participated in beating De

Leon in a manner that the IJ characterized as “vicious” and

a PNC officer framed as “attempted murder.” During the

beating, the five attackers told De Leon that they were going

to kill him. At no point did Alvarado or Gomez try to stop

the other men from repeatedly stabbing De Leon with a knife

and a machete, and Gomez himself knocked De Leon

unconscious by hitting him in the head with either a gun or

DE LEON LOPEZ V. GARLAND 21

baton. De Leon needed sixteen stitches on his head as a

result of Gomez’s strike; he needed over thirty stitches in

total; he was out of work for three months; and he did not

physically recover from his various injuries for over one

year. De Leon also suffered ongoing psychological damage.

Precedent indicates that such a beating may be sufficiently

severe to qualify as torture. See, e.g., Xochihua-Jaimes v.

Barr, 962 F.3d 1175, 1188 (9th Cir. 2020); Bromfield,

543 F.3d at 1079; Muradin v. Gonzales, 494 F.3d 1208,

1211 (9th Cir. 2007); Al-Saher, 268 F.3d at 1146–48.

Neither the IJ nor the BIA directly addressed whether the

July 2011 incident was severe enough to qualify as torture.

The BIA stated that “even assuming that some of

[De Leon’s] attackers were actual police officers, the record

does not indicate [(a)] that they tortured the applicant and

[(b)] that the government of Guatemala acquiesced to such

torture.” In light of: (1) the absence of an express finding on

severity in the IJ’s opinion; (2) the lack of any explanation

in the BIA’s opinion as to why the July 2011 beating fell

short of the definition of torture in terms of its severity;

(3) the conjunctive structure of the BIA’s sentence; and

(4) the BIA’s legally erroneous view, discussed above, that

there was an inadequate showing of governmental

acquiescence, it is most likely that the BIA’s holding was

that, as the IJ held, the record did not establish acquiescence,

and so did not establish (a) and (b), the conjunction

necessary to demonstrate past torture.

At best, the BIA’s opinion is ambiguous as to whether it

concluded that the July 2011 incident qualified as torture. If

it did so conclude, the opinion contains no explanation for

the holding.

In light of the ambiguity in the BIA’s conclusion with

respect to the question whether De Leon was subjected to

22 DE LEON LOPEZ V. GARLAND

past torture and the absence of any explanation for a

conclusion on that question, if made, we remand that issue

for further consideration. See Tadevosyan v. Holder, 743

F.3d 1250, 1257–58 (9th Cir. 2014); Arredondo v. Holder,

623 F.3d 1317, 1320 (9th Cir. 2010).

5. If, on remand, the agency determines that De Leon

was subjected to past torture in July 2011, that conclusion

would not fully satisfy De Leon’s burden to show that it is

“more likely than not” that he would be tortured should he

return to Guatemala. 8 C.F.R. § 1208.16(c)(2). Although

“past torture is ordinarily the principal factor on which we

rely when an applicant who has previously been tortured

seeks relief under the Convention,” Nuru v. Gonzales,

404 F.3d 1207, 1218 (9th Cir. 2005), “changed

circumstances” can lessen the importance of that factor.

Avendano-Hernandez, 800 F.3d at 1080.

Here, circumstances have somewhat changed. Alvarado

and Gomez are no longer members of the PNC and may no

longer be in Guatemala. De Leon must therefore establish

either that he would more likely than not be tortured in the

future by Guatemalan officials or that the Guatemalan

government would more likely than not acquiesce in future

torture perpetrated against him by individuals who are not

public officials.

The IJ and BIA concluded that De Leon did not make

this showing. But “where there is any indication that [an IJ

or] the BIA did not consider all of the evidence before it . . .

the decision cannot stand.” Cole v. Holder, 659 F.3d 762,

771–72 (9th Cir. 2011). The agency’s analysis of the

probability that De Leon will be subjected to future torture

disregarded several critical factors and so must be redone.

DE LEON LOPEZ V. GARLAND 23

First, the BIA concluded that the second incident in

October 2011 fell short of the definition of past torture

because the beating and De Leon’s injuries were

insufficiently severe. 8 C.F.R. § 1208.18(a)(1). De Leon

does not contest the validity of that determination. But the

October 2011 incident nonetheless qualifies as “relevant

evidence” that the agency must consider in evaluating

De Leon’s Torture Convention claim. Maldonado, 786 F.3d

at 1164.

The record indicates that the police officers who beat De

Leon in October 2011 told him that “if [he] went to the

human rights organization” then he “was going to have

problems with them.” Later, after De Leon made a human

rights report, armed officers went to the homes of his

relatives and to places he frequented looking for him, and the

officers indicated that they would continue to “come back

and look for [him] later.”5 The October incident, threat, and

follow-up make future torture by PNC officers more

probable and should not have been ignored by the agency.

Second, “[t]he failure of the IJ and BIA to consider

evidence of country conditions” in denying relief under the

Torture Convention “constitutes reversible error.” Aguilar-

Ramos v. Holder, 594 F.3d 701, 705 (9th Cir. 2010). The

BIA’s decision in this case does not reference the country

conditions report at all. It does generally adopt the IJ’s

reasoning.

5

The IJ and BIA did not dispute that the assailants from the

October 2011 incident were police officers. The IJ did suggest that the

armed officers who subsequently went to the homes of De Leon’s

relatives and to places he previously frequented may have had a lawful

purpose, such as to discuss the ongoing investigations against his

attackers. That the armed officers approached the home of De Leon’s

mother at 1:00 a.m. could belie that suggestion.

24 DE LEON LOPEZ V. GARLAND

The IJ did not properly take into consideration the

country conditions evidence De Leon proffered. That

evidence demonstrates that many police officers in

Guatemala are corrupt and involved in extortion, and that the

officers who are not corrupt are unlikely to intervene to

protect victims from harm. The IJ referred to the country

conditions report only briefly in her decision. She stated that

although the report “establish[es] there are some problems

in Guatemala,” De Leon had not set forth a claim under the

Convention Against Torture because “the authorities went

out of their way to help him.”

The “problems” superficially referenced by the IJ but

recounted in detail in the country conditions report are

directly relevant here. They include “widespread

institutional corruption, particularly in the police” force; this

corruption was characterized as one of the “[p]rincipal

human rights abuses” in Guatemala by the country

conditions report. The country conditions report

demonstrates that the Guatemalan government lacks

effective mechanisms to investigate and prevent abuse and

corruption within the PNC, and that non-corrupt PNC

officers are reluctant to punish the wrongdoings of their

corrupt peers. The dismissive manner in which the IJ

referred to and treated the country conditions report—

including characterizing it as “29 pages of general

information of which we are all familiar,” and rendering her

oral decision only moments after accepting the report into

the record—suggests that the IJ did not read the report in any

detail or genuinely consider the parts directly pertinent to De

Leon’s likely situation in Guatemala upon removal.

This conclusion is bolstered by Parada v. Sessions, 902

F.3d 901 (9th Cir. 2018). There, the IJ summarized the

relevant country conditions in his decision, but there was a

“significant and material disconnect between the IJ’s quoted

DE LEON LOPEZ V. GARLAND 25

observations and his conclusions regarding [the petitioner’s

Torture Convention] claim.” Id. at 915. That disconnect

“indicate[d] that the IJ did not properly consider all of the

relevant evidence before him.” Id. Here, the IJ did not quote

or summarize the country conditions report in her decision.

The engagement with the country conditions report in this

case—which was virtually non-existent on the part of the IJ,

and completely non-existent on the part of the BIA—is

inadequate.

Third, the BIA suggested that De Leon could “live in

Guatemala City or another part of Guatemala without any

harm.” To find that an applicant can safely relocate to

another part of the country, an IJ or the BIA needs to cite

affirmative evidence supporting that determination.

Xochihua-Jaimes, 962 F.3d at 1186–87 (citations omitted).

The BIA’s finding is not supported by such evidence.

The Government argues that two pieces of evidence

support the BIA’s determination that De Leon could safely

relocate: (1) that De Leon lived in Guatemala City for

approximately one month without being attacked, and

(2) that De Leon’s attackers from the July 2011 incident

have not returned to Guatemala to his knowledge. The

parties do not cite, and we have not found, any cases holding

that a single month’s stay in another region of the proposed

country of removal qualifies, by itself, as sufficient

affirmative evidence that the applicant could safely relocate

to that region. That gap is not surprising. A one-month

sojourn in another area of the proposed country of removal

does not constitute substantial evidence that an applicant will

not be found by his adversaries if he remains there

permanently.

Additionally, both during the month De Leon lived in

Guatemala City and later, armed police officers were

26 DE LEON LOPEZ V. GARLAND

actively searching for him at his relatives’ homes and at

locations he had previously frequented. The officers told De

Leon’s relatives that they would continue to search for him.

De Leon’s family members did not disclose his location in

Guatemala City to the armed officers. But police officers

seeking to harm De Leon could uncover his location through

other means, such as by asking other individuals living in

De Leon’s small town or by contacting officials in other

parts of the country.

Finally, although the five attackers from the July 2011

incident have not to De Leon’s knowledge returned to

Guatemala from Mexico (the border of which is close to De

Leon’s home town), he testified that news of his return

would travel through his small town quickly, and it would be

“very easy” for potential attackers, including the aggrieved

police officers involved in the October 2011 incident, to

learn he had returned and track him down. The BIA’s

assessment of whether De Leon could safely relocate should

have taken into account these factors.

Fourth, Torture Convention “claims must be considered

in terms of the aggregate risk of torture from all sources,”

including from sources that did not have a hand in past

torture inflicted upon the applicant. Xochihua-Jaimes,

962 F.3d at 1187 (quoting Quijada-Aguilar v. Lynch, 799

F.3d 1303, 1308 (9th Cir. 2015)). The BIA must assess

whether, after “aggregating the risks posed” by each

potential source of torture, the applicant has demonstrated “a

probability greater than 50 percent that he will be tortured.”

Velasquez-Samayoa v. Garland, No. 21-70093, 2022 WL

4453004, at *6 (9th Cir. Sept. 23, 2022). Here, the IJ and

BIA exclusively considered the risk of harm to De Leon

stemming from the particular individuals involved in the

July 2011 incident. That approach ignores the risk that

De Leon would be tortured in the future by other police

DE LEON LOPEZ V. GARLAND 27

officers, including those connected to the October 2011

incident or those who have similar motivations to the

officers involved in the July and October incidents. Cf. Kaur

v. Wilkinson, 986 F.3d 1216, 1230–31 (9th Cir. 2021).

The record indicates that a common theme underlies De

Leon’s two violent encounters with the Guatemalan police.

In both instances, De Leon refused to submit to corrupt

police practices involving the theft of his money or goods.

When asked why he did not simply submit to the corrupt

practices to avoid being harmed, De Leon explained “it

didn’t seem fair to [him]” to submit to “the kind of people

that only want to harm others.” He also explained that he

fundamentally “opposed” the corrupt practices “because that

is no way to—they don’t have any right to take the

merchandise from us or even ask for money.” The country

conditions report indicates that Guatemalan police

frequently extort citizens of the country. That evidence is

pertinent to evaluating whether, if De Leon returned to

Guatemala, his defiance against corrupt police practices

could lead him to face new incidents of violence by or with

the acquiescence of police officers unconnected to the

July 2011 incident.

Additionally, the record demonstrates that De Leon was

twice attacked by police officers on his way back to his small

town. Both attacks were premised in part on the assumption

that De Leon would be carrying money or other objects of

wealth upon his return. The possibility that De Leon may be

attacked in a similar fashion in the future if he were again

removed to Guatemala from the United States should have

been considered by the BIA in assessing the probability of

future torture.

In sum, the IJ and BIA disregarded myriad contextual

considerations pertinent to the likelihood of future torture.

28 DE LEON LOPEZ V. GARLAND

To summarize those considerations: De Leon has already

experienced two assaults at the hands of the police, not one;

police officers warned him not to report them to a human

rights organization and, after he made a report, searched for

him at his family members’ homes and at places he

frequented, suggesting that they intended to harm him again;

and, given his principled resistance to police corruption,

De Leon may anger additional corrupt officers in the future.

Combined with the country conditions report’s material

about police corruption, the record indicates that the

violence De Leon experienced may not have been “isolated”

or one-off. The BIA should have taken the broader picture

into consideration but did not.

* * *

When an IJ or BIA decision “cannot be sustained upon

its reasoning,” the proper course of action on review is to

remand for the IJ or BIA to reconsider its decision. Andia v.

Ashcroft, 359 F.3d 1181, 1184 (9th Cir. 2004); see also Cole,

659 F.3d at 774. Here, the record compels the conclusion

that two of De Leon’s attackers from the July 2011 incident

were police officers, so he need not otherwise show

acquiescence on the part of the Guatemalan government with

respect to that incident. The determination whether De Leon

was subjected to past torture therefore must be reconsidered.

Separately, the IJ and BIA did not properly consider

information pertinent to determining the probability of

future torture when denying De Leon’s request for relief

under the Torture Convention. We therefore grant the

petition for review and remand the matter to the BIA for the

agency to reconsider De Leon’s application for relief under

the Torture Convention.

The petition for review is GRANTED. We REMAND

for further proceedings consistent with this opinion.

DE LEON LOPEZ V. GARLAND 29

COLLINS, Circuit Judge, dissenting:

In rejecting Petitioner Risvin Valdemar De Leon

Lopez’s claim for relief under the Convention Against

Torture, the Immigration Judge (“IJ”) relied critically on an

explicit factual finding that none of the five men who robbed

and attacked De Leon in Guatemala in July 2011 were police

officers. The Board of Immigration Appeals (“BIA”) upheld

that finding and the resulting denial of relief, but the majority

nonetheless reverses that factual finding and remands the

case back to the agency. The majority’s opinion is a

textbook example of how judicial review of immigration

decisions ought not to be conducted. Indeed, the majority’s

decision resurrects many of the same flawed legal standards

that we previously applied in immigration cases and that

were expressly rejected by the Supreme Court in its

unanimous decision in Garland v. Ming Dai, 141 S. Ct. 1669

(2021). I respectfully dissent.

I

In addressing De Leon’s claim that, in July 2011, he was

attacked by five men, including two police officers, the IJ

reviewed the conflicting evidence and made an express

factual finding that these two “individuals wore police

uniforms or uniforms that made them look like police

uniforms but they were not in fact actually police employees

or any lawful authority.” Exercising review for clear error,

the BIA expressly upheld this finding that the assailants were

not “actual police officers.” As a result, under the INA, this

finding of fact is “conclusive unless any reasonable

adjudicator would be compelled to conclude to the

contrary.” 8 U.S.C. § 1252(b)(4)(B). The majority

nevertheless reverses this factual finding, holding that “the

30 DE LEON LOPEZ V. GARLAND

record compels the conclusion that two of De Leon’s

attackers from the July 2011 incident were police officers.”

See Opin. at 28. In doing so, the majority seriously errs.

A

Before turning to the specifics of how the majority

improperly reweighs the particular evidence in this case, I

think it is important to note, at the outset, three respects in

which the majority flouts the applicable principles of law

that the Supreme Court set forth when it reversed this court’s

decision in Ming Dai.

First, the Ming Dai Court told us that we were wrong to

treat credibility determinations as an all-or-nothing matter,

because an IJ, “like any reasonable factfinder, is free to

credit part of a witness’ testimony without necessarily

accepting it all.” 141 S. Ct. at 1677 (simplified). The

majority disregards that principle by taking as credible every

detail in De Leon’s testimony, even though the IJ found only

that De Leon “testified in a generally credible manner” and

an “[e]ssentially” credible manner (emphasis added). As the

IJ made clear, she declined to accept all of De Leon’s

testimony, because some portions were based on

“speculation,” and other parts were “contradict[ed]” by his

own documentary evidence and even his earlier testimony.

The majority contends that these comments by the IJ

addressed only the “persuasiveness” of De Leon’s testimony

and not its “credibility,” and on that basis the majority

proceeds to treat De Leon’s testimony as having been found

to be credible in all relevant respects. See Opin. at 17–18.

The majority’s premise is incorrect. In particular, given that

the IJ’s decision relies heavily on contradictions in and

between De Leon’s testimony and past statements, that

decision clearly reflects doubts as to De Leon’s credibility in

DE LEON LOPEZ V. GARLAND 31

claiming that his attackers were police officers. See infra

note 1. By instead deeming all of De Leon’s testimony to be

credible, the majority effectively revives the very

“presumption of credibility” that Ming Dai told us does not

apply on a petition for review in federal court. 141 S. Ct. at

1678. As the Court explained, we may not presume that any

portion of an alien’s testimony that was not specifically

rejected by the IJ was credited. On the contrary, even when

the record is unclear as to whether testimony was explicitly

disbelieved, the “only question for judges reviewing the

BIA’s factual determinations is whether any reasonable

adjudicator could have found as the agency did.” Id. By

crediting De Leon’s testimony wholesale, and then

deploying it to reject the agency’s findings, the majority

“flips” this deferential “standard on its head” and thereby

“gives conclusive weight to any piece of testimony that cuts

against the agency’s finding.” Id.

Second, even if the majority were right in thinking that

every detail of De Leon’s testimony should be deemed

credible, the majority further errs by effectively reviving our

further “deemed true” rule, which Ming Dai also squarely

rejected. See 141 S. Ct. at 1676–77. As I will show in

discussing the majority’s analysis of the specific evidence in

this case, the majority wrongly takes every detail of De

Leon’s hearing testimony as the gospel truth, and it then

aggressively discounts contrary evidence in the record by

drawing debatable inferences in De Leon’s favor and

contrary to the IJ’s factual findings. But as the Supreme

Court admonished us, “even if the BIA [or the IJ] treats an

alien’s evidence as credible, the agency need not find his

evidence persuasive or sufficient to meet the burden of

proof.” Id. at 1680. Here, the IJ clearly found that, even

assuming that De Leon was credible in contending that two

of his attackers wore uniforms, that testimony was not

sufficiently persuasive to establish that they were in fact

32 DE LEON LOPEZ V. GARLAND

police officers. Under Ming Dai, it was entirely proper for

the IJ to conclude that “testimony on [that] key fact was

outweighed by other evidence and thus unpersuasive or

insufficient to prove” the alien’s case. Id. at 1681.

Third, the majority disregards Ming Dai’s clear

instruction that we may not “overturn” a factual finding if

“the record contains contrary evidence of a kind and quality

that a reasonable factfinder could find sufficient.” 141 S. Ct.

at 1677 (simplified). As I will explain, the record clearly

contains such evidence here. But the majority instead

cherry-picks from the record whatever evidence it thinks

supports its favored conclusion, while ignoring the very

substantial evidence in the record that is contrary to that

conclusion.

In defending its disregard of such contrary evidence, the

majority asserts that, in applying the substantial evidence

standard, we may consider additional items of record

evidence that were not specifically mentioned by the IJ or

the BIA only if those items undermine the agency’s

conclusion. Compare Opin. at 13–17 (chastising the agency

on the grounds that it overlooked items of evidence in the

“record as a whole” that the majority thinks support a

contrary view) with Opin. at 17–20 (arguing that we must

close our eyes to record evidence supporting the agency’s

conclusion if that evidence was not specifically cited by the

agency). According to the majority, this one-way ratchet

follows from the principle, derived from SEC v. Chenery

Corp., 332 U.S. 194, 196 (1947), that judicial review of an

agency decision is limited to “only the grounds relied upon

by that agency.” Andia v. Ashcroft, 359 F.3d 1181, 1184

(9th Cir. 2004). The majority’s reasoning is flawed. Here,

the agency’s grounds for decision were clearly identified—

namely, that De Leon was not attacked by police officers and

that his claims to the contrary were based on speculation and

DE LEON LOPEZ V. GARLAND 33

on testimony that was internally inconsistent and

contradicted by other evidence in the record. Under the

express terms of the INA, we may not set aside that finding

and replace it with a contrary factual finding—as the

majority has done here—“unless any reasonable adjudicator

would be compelled to conclude to the contrary,” 8 U.S.C.

§ 1252(b)(4)(B). Ming Dai states that, in applying this

“highly deferential standard” to an agency’s explicit

rejection of an alien’s factual contention, our task is simply

to determine whether “the record contains contrary evidence

of a kind and quality that a reasonable factfinder could find

sufficient,” 141 S. Ct. at 1677 (simplified). Moreover, Ming

Dai specifically rejects any “magic words” approach to

reviewing the sufficiency of the evidence underlying the

agency’s factual determinations. See id. at 1679.

Accordingly, the majority’s insistence that, in applying the

substantial evidence standard to the explicitly stated grounds

of the agency’s decision, we may consider only the particular

snippets of record evidence specifically and expressly cited

by the agency is a distortion of the Chenery rule, contravenes

Ming Dai, and ignores the applicable statutory language.

B

The flaws in the majority’s legal standards are confirmed

by the numerous mistakes the majority makes in assessing

whether substantial evidence in the record supports the

specific factual finding that is at issue in this case—namely,

whether two of De Leon’s attackers in the July 2011 incident

were police officers. Even while crediting De Leon’s

assertion that two of his attackers wore uniforms, the IJ gave

four reasons for nonetheless concluding that the men were

not police officers.1 Collectively, these reasons provide

1

The majority claims that the IJ made a specific finding that De Leon

was credible when De Leon claimed that he “believed that two of these

34 DE LEON LOPEZ V. GARLAND

substantial evidence to support the IJ’s factual finding, and

the majority errs in concluding otherwise.

First, the IJ concluded that, in discussing his knowledge

about the occupations of the two men, De Leon at one point

changed his testimony, first stating that one of his attackers

“used to work for the police” but then claiming that he “was

working for the police at the time” of the attack (emphasis

added). The majority attempts to explain away the

inconsistency, arguing that De Leon’s use of the past tense

in the first phrase was attributable to the fact that he “was

testifying about an incident that had occurred about seven

years earlier.” See Opin. at 14. If I were the trier of fact, I

might agree with the majority’s attempt to reconcile these

seemingly conflicting aspects of De Leon’s testimony. But

the IJ clearly read both statements as referring to the

attackers’ status at the time of the attack and as therefore

internally inconsistent. The majority’s adoption of a

debatable contrary inference is flatly contrary to the “‘highly

men were police officers.” See Opin. at 18 (quoting the IJ’s decision).

This erroneous contention rests on an improperly truncated quotation

from the IJ’s decision. In the cited sentence, the IJ observed that,

“According to his testimony respondent [De Leon] believed that two of

these men were police officers and that the other three men were

neighbors and people that respondent knew” (emphasis added). Far from

endorsing the credibility of De Leon’s belief, the quoted sentence merely

recounts that De Leon claimed such a belief. Moreover, the majority’s

theory that the IJ supposedly found that De Leon actually believed the

men to be officers is difficult to square with the fact that the IJ rejected

De Leon’s testimony that the men were officers as being contrary to his

own additional statements, both in the other portions of his testimony

and in his earlier statement to investigators. A finding that, with respect

to a particular point, a witness has given internally inconsistent testimony

that also contradicts the witness’s prior statements is not reasonably

construed as an endorsement of the credibility of the testimony as to that

particular point.

DE LEON LOPEZ V. GARLAND 35

deferential standard” of review. Ming Dai, 141 S. Ct. at

1677; see also Nasrallah v. Barr, 140 S. Ct. 1683, 1692

(2020). How to weigh potentially conflicting items of

testimony is a discretionary judgment to be made by the IJ,

subject to the BIA’s clear error review. We lack the

authority to reweigh the evidence ourselves and to draw

competing inferences. Indeed, even the BIA—which

operates under a less strict standard of clear-error review—

is forbidden to do what the majority has done here, which is

to “rely on its own interpretation of the facts.” Guerra v.

Barr, 974 F.3d 909, 912 (9th Cir. 2020).

Second, the IJ also reasoned that De Leon’s claim that

the men were police officers was contradicted by the fact

that, as soon as De Leon reported the attack, the men fled the

country, “indicating that they feared the police” (emphasis

added). The majority disputes the IJ’s inference, arguing

that the men’s flight does not necessarily mean that they

were not police officers at the time of the attack. As the

majority contends, “[c]orrupt police officers can fear that

they will be caught and prosecuted.” See Opin. at 15. Once

again, the majority is choosing between debatable

inferences, thereby flagrantly disregarding the standard of

review. See Guerra, 974 F.3d at 913 (noting that, “[w]hen

there are two permissible views of the evidence, the IJ’s

choice between them” cannot be side aside, even by the

BIA).

Third, the IJ noted that the written copy of the police

report concerning the incident did not mention that the men

were police officers; instead they were identified as

members of the 18th street gang. It was entirely reasonable

for the IJ to conclude that this report undermined De Leon’s

contention that two of the men were police officers. Yet

again, the majority improperly substitutes its own

tendentious reweighing of the evidence. According to the

36 DE LEON LOPEZ V. GARLAND

majority, the report was only a summary of statements made

by persons other than De Leon, and therefore no significance

can be attached to its failure to mention that two of the men

were police officers. See Opin. at 13. As an initial matter,

the majority overlooks the fact that the report—which is a

summary of an interview with De Leon—recounts De

Leon’s statement that various persons, who were at the

treatment center he went to after the attack, described the

attackers as members of the “18 gang.” In addition, the

majority overlooks De Leon’s subsequent statement to the

public prosecutor’s office in which he stated that “these

individuals that wounded me are members of the eighteen

gang.” These various statements, whether by De Leon

himself or by De Leon relaying other persons’ claims,

remain competing evidence that the IJ could consider in

reaching a conclusion contrary to the majority’s.

The majority also holds that the agency should not have

given weight to any perceived inconsistency on this score

because, in any event, the men who attacked De Leon could

have been both police officers and gang members. See Opin.

at 13. De Leon made similar attempts to reconcile his

testimony with the police report, but the IJ expressly rejected

them, finding that De Leon “offered no cogent explanation

of why the police would take a report, list these individual’s

names and then pretend they weren’t police if in fact they

were police officers.” In rejecting the IJ’s conclusion, the

majority simply usurps the IJ’s authority, in direct

contravention of the INA’s highly deferential standard of

review.

Fourth, the IJ concluded that, because the authorities

would know more about their own officers, their subsequent

inability to locate the men was inconsistent with the

conclusion that they were police officers. I confess that, if I

were the trier of fact, I would not have drawn this inference,

DE LEON LOPEZ V. GARLAND 37

because it is presumably difficult to locate anyone who has

fled the country, regardless of whether they are officers. But

as I have already repeatedly observed, the decision as to

which inferences to draw from the evidence belongs to the

IJ and not to this court. The majority again disregards these

constraints by instead adopting the competing inference that

the men were not located because “officers in Guatemala

commonly neglect to investigate or punish their peers.” See

Opin. at 15.

C

In addition to improperly reweighing and rejecting each

of the specific inferences drawn by the IJ in support of her

factual finding that the men were not officers, the majority

also selectively rummages through the record in search of

additional evidence to support its preferred conclusion. This

cherry-picking overlooks the significant amount of

additional contradictory evidence that seriously undermines

De Leon’s claims and that show that this is most definitely

not a case in which the record compels acceptance of his

claims that two of the attackers were police officers.2

2

As noted earlier, the majority is wrong in contending that, in assessing

whether the record evidence supports the IJ’s finding, we are limited by

the Chenery rule to considering only those aspects of the record that were

affirmatively cited by the IJ. In explaining how the Chenery rule applies

within the context of the INA’s review provisions, Ming Dai explained

that (1) in assessing whether particular testimony was rejected as not

credible, it suffices “if the agency’s path may reasonably be discerned”;

and (2) such a rejection must be upheld unless, reviewing the record as

a whole, “a reasonable adjudicator would have been compelled to reach

a different conclusion.” 141 S. Ct. at 1679 (citation omitted); cf.

Louisiana-Pac. Corp. v. NLRB, 52 F.3d 255, 258–59 (9th Cir. 1995)

(distinguishing between the “basis” for an agency order, which is limited

by the Chenery rule, and an agency “finding,” which is reviewed for

“substantial evidence”). Here, the agency did not credit De Leon’s

38 DE LEON LOPEZ V. GARLAND

For example, the majority chastises the IJ for

overlooking De Leon’s testimony that he had known the

putative officers “for about twenty years” and that it was

common knowledge in the village that they were police

officers. See Opin. at 12. There is no indication, however,

that the IJ credited this aspect of De Leon’s testimony, which

is not mentioned in the evaluative section of the IJ’s ruling.3

Nor was the IJ compelled to do so, and nor are we. Indeed,

the record contains ample “contrary evidence of a kind and

quality that a reasonable factfinder could find sufficient” to

justify declining to credit or mention this aspect of De

Leon’s testimony. Ming Dai, 141 S. Ct. at 1677 (simplified).

In particular, De Leon’s story about having known these two

men to be police officers is very hard to square with the

earlier contradictory statements he made during his removal

proceedings.4

testimony that the men were police officers, and we may not set that

conclusion aside “so long as the record contains contrary evidence of a

kind and quality that a reasonable factfinder could find sufficient.” Ming

Dai, 141 S. Ct. at 1677 (emphasis added) (citations and internal

quotation marks omitted). Moreover, as noted earlier, the majority’s

distorted view of Chenery leads it to wrongly adopt an asymmetrical rule

that uncited evidence may be used to attack the agency’s factual

findings, but not to support them. See supra at 32–33.

3

The majority’s erroneous contrary contention is once again based on its

patent misreading of the IJ’s decision. As before, see supra note 1, the

majority misreads the IJ’s mere summary of what De Leon claimed in

his testimony as reflecting an endorsement of the credibility of every

claim mentioned. In each of the relevant sentences describing De Leon’s

testimony about how long he knew the alleged officers, the IJ used

phrasing such as “[a]ccording to his testimony”; “[r]espondent testified”;

“[a]s respondent described him”; and “[r]espondent said”.

4

The majority claims it is unfair to consider these additional aspects of

the record because, under our precedent, the agency supposedly could

not have expressly relied on these particular contradictions without first

specifically raising each one of them with De Leon and allowing him to

DE LEON LOPEZ V. GARLAND 39

At the January 29, 2018 hearing before the IJ, De Leon

named two men, Israel Augustin Alvarado and Oljoel

Pascual Gomez, as the uniformed police officers who

participated in the July 2011 attack. The majority simply

assumes this testimony to be true, even though the IJ made

no finding as to the identities of the two men. But in his

declaration in support of his December 2015 application for

relief, De Leon claimed that the two police officers who

attacked him were “Joel Lopez” and “Marcelino, whom I

don’t know his last name.” He further stated that the other

attackers—i.e., the ones who were not police officers—were

“Israel Agustin Alvarado and Melvin Baten.” Similarly, in

his June 24, 2015 reasonable fear interview, De Leon named

the two police officers as “Joel Lopez” and a man named

“Marcelino,” whose last name he did not know. In that

interview, he was also asked “[w]hat were the names of the

individuals who were not police officers,” and he replied,

“Melvin Baten, Israel Augustine [sic] Alvarado.” These

prior statements that Alvarado was not one of the officers

and that De Leon did not know the last name of the other

try to explain them. See Opin. at 18–19. Even assuming arguendo that

our continued adherence to that “judge-made procedural requirement[]”

is consistent with Ming Dai, but see 141 S. Ct. at 1677 (reminding us that

judge-made rules “that Congress has not prescribed and the Constitution

does not compel” have “no proper place in a reviewing court’s

analysis”), it is inapposite here. I have raised these aspects of the record

only in response to the majority’s selective rummaging of the record for

additional evidence, not relied upon by the agency, that undermines the

agency’s decision. The majority cannot have it both ways: we cannot

simultaneously fault an agency for failing to rely on a particular aspect

of the record without acknowledging the additional baggage with which

that aspect is freighted. And even if the majority’s procedural rule were

applicable here, it would at most warrant a reconsideration of the factual

determination by the agency and not, as the majority would have it, a

judge-made factual finding that is directly contrary to the agency’s. See,

e.g., Soto-Olarte v. Holder, 555 F.3d 1089, 1096 (9th Cr. 2009)

(remanding on an open record).

40 DE LEON LOPEZ V. GARLAND

officer thus directly contradict De Leon’s hearing testimony

that Alvarado was one of the officers and that De Leon had

known both men for 20 years.

Moreover, De Leon’s earlier statements are also

inconsistent as to the number and identities of the non-

police-officer attackers. In his July 18, 2011 statement to the

Guatemalan prosecutor’s office, De Leon made no mention

of any of the attackers being police officers, and he identified

his attackers as “Joel Pascual Lopez Gomez,” “Elder Ramos,

Agustin Alvarado, and Melvin Baten.” In his declaration

and credible fear interview, he also named four men, but he

substituted the mysterious “Marcelino” for “Elder Ramos.”

At the hearing, however, he named five men: Alvarado,

Gomez, and Baten remained on the list, but Marcelino was

dropped, Elder Ramos was added back, and a new fifth

person was added—Minor Rojas. As with Alvarado and

Gomez, De Leon told the IJ he had known Rojas and Ramos

for many years. The addition of Minor Rojas as a fifth

attacker was notable, because De Leon’s 2011 statement to

Guatemalan prosecutors insisted that “Mynor Rojas” had

absolutely nothing to do with the attack.5

With this mess of a record, we are certainly not

compelled to accept De Leon’s assertion that he had known

the men for 20 years and therefore knew they were police

officers, and the IJ cannot be faulted for ignoring that claim.

5

De Leon’s statement to prosecutors also stated that his companions,

Noel Mendez and Aroldo Escobar, were attacked, which contradicted his

hearing testimony that “[t]hey weren’t hit” and that “[t]hey just left the

place.”

DE LEON LOPEZ V. GARLAND 41

II

Beyond its unwarranted conclusion that the attackers in

the July 2011 incident included police officers, the majority

does not otherwise identify any basis for setting aside the

agency’s conclusion that the Guatemalan government had

not acquiesced in any past alleged “torture” of De Leon. Nor

does the majority contend that, in the absence of past torture,

De Leon presented sufficient evidence to establish that

future torture was likely if De Leon is removed to

Guatemala.6 Consequently, because the IJ’s factual finding

that no police officers participated in the July 2011 attack

should be upheld, De Leon’s claim for relief under the

Torture Convention necessarily fails, and the petition should

be denied.

* * *

Because the majority revives and applies flawed legal

standards that were unanimously rejected by the Supreme

Court in Ming Dai, I respectfully dissent.

6

The majority instead contends that, if on remand the agency concludes

that De Leon’s past treatment amounted to torture, the agency must then

redo its analysis of the likelihood of future torture. The agency’s prior

discussion of that issue was flawed, according to the majority, because

the agency failed to adequately consider several additional items of

evidence that, together with a showing of past torture, may suffice to

warrant relief here. This discussion also further reflects the majority’s

flawed aggressive approach to reading the record in this case.