9TH CIR. FINDS BIA APPLIED WRONG STANDARD TO DENY CAT — Soto-Soto v. Garland

 

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/06/11/20-70587.pdf

SUMMARY BY COURT STAFF:

Before: J. CLIFFORD WALLACE and MILAN D. SMITH, JR., Circuit Judges, and JANE A. RESTANI,* Judge.

Opinion by Judge Milan D. Smith, Jr.;

Partial Concurrence and Partial Dissent by Judge Wallace

* The Honorable Jane A. Restani, Judge for the United States Court of International Trade, sitting by designation.

No. 20-70587

Agency No. A209-406-355

OPINION

2 SOTO-SOTO V. GARLAND

SUMMARY** Immigration

Granting Delfina Soto-Soto’s petition for review of a decision of the Board of Immigration Appeals’ reversing an immigration judge’s grant of deferral of removal under the Convention Against Torture, and remanding for the Board to grant CAT relief, the panel held that the Board erred by reviewing the IJ’s decision de novo, rather than for clear error, and concluded that the record compelled the conclusion that Soto-Soto met her burden of proof to establish that it is more likely than not that she will suffer future torture if removed to Mexico.

Michoacán state police arrested and brutally tortured Soto-Soto until she confessed to the kidnapping and murder of a five-year old boy. After the Mexican trial court dismissed the charges against her as a result of due process errors during the investigation, she fled to the United States. Mexican prosecutors subsequently conducted a new investigation and filed new charges against Soto-Soto, INTERPOL put out a Red Notice for her extradition to Uruapan in Michoacán, Mexico, which is 67 miles from where Soto-Soto was tortured in Morelia, Michoacán. Relying on Soto-Soto’s past torture, her reporting of the torture to the Michoacán State Commission of Human Rights despite warnings not to do so, the reissued arrest warrant, and country condition evidence showing that indigenous women like Soto-Soto are particularly

** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.

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vulnerable to torture, the IJ held that Soto-Soto was more likely than not to be tortured again if removed to Mexico. The Board reversed and held that the IJ’s determination was clearly erroneous because he did not acknowledge the Mexican judicial system’s appropriate steps to correct past due process errors, that Soto-Soto was not harmed while in custody for eight months after reporting the torture, and that members of Soto-Soto’s family remain in Mexico unharmed.

The panel concluded that the Board’s decision reflected that it engaged in a de novo weighing of the evidence, rather than clear error review. The panel explained that the Board may find an IJ’s factual finding to be clearly erroneous if it is illogical or implausible, or without support in inferences that may be drawn from the facts in the record, but in this case, the Board failed to explain how the IJ’s decision was illogical, implausible, or without support.

The panel’s majority also concluded that the Board’s view of the evidence was not supported by the record. First, the majority wrote that the record emphatically did not show that the Mexican court took steps to cure the due process errors caused by the state police officers torturing a confession out of Soto-Soto. Further, the majority wrote that even if the record supported the Board’s factual findings, that would not be enough to overturn the IJ’s decision under clear error review, because the IJ’s predictive finding as to the likelihood of torture is entitled to broad deference, which the Board failed to provide. Second, the majority wrote that because Soto-Soto’s human rights commission complaint was not filed until after she was released from custody, and nothing in the record suggested that the state police officers were aware of her report, Soto-Soto’s physical safety while in custody was not probative of the state police officers’

4 SOTO-SOTO V. GARLAND

intent to carry out their threat of future torture. Finally, the majority wrote that the lack of harm to Soto-Soto’s family was irrelevant because threats of such harm hinged on Soto- Soto’s return to Mexico, which had not yet occurred. The panel also observed that the Board failed to discuss the IJ’s other key factual findings, including country condition reports establishing that indigenous women are more likely to be tortured in Mexico than other groups.

Reviewed under the proper standard of review, the majority concluded that the IJ’s decision was not clearly erroneous, and that the record compelled the conclusion that Soto-Soto met her burden of proof to establish that it is more likely than not that she will suffer future torture if removed to Mexico. The majority remanded the petition to the Board with the direction to grant deferral of removal.

Concurring in part and dissenting in part, Judge Wallace agreed that the Board impermissibly applied de novo review in reversing the IJ’s grant of relief. However, Judge Wallace wrote that he believes that the IJ erred in the likelihood of future torture analysis, and he relatedly disagreed with the majority’s and IJ’s conflation of the various Mexican law enforcement actors in the state of Michoacán into a unitary actor—i.e., the Michoacán state police—in assessing the likelihood of torture. Judge Wallace also highlighted that the IJ found Soto-Soto was ineligible for asylum and withholding of removal because there are serious reasons to believe that she did, in fact, kidnap and murder the child whenhisfamilyrefusedtopaythedemandedransom. Judge Wallace believed that her likely guilt should have been considered as well because her original criminal case was not dismissed due to factual innocence but due process errors that have been corrected. Judge Wallace concluded that the majority’s direction to the Board to grant CAT relief rather

SOTO-SOTO V. GARLAND 5

than reversing and remanding the petition to the Board for further consideration goes against the court’s ordinary practice, especially because the record did not compel the conclusion that Soto-Soto satisfied her burden of proof.

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More result-oriented decision making and basic errors on the EOIR deportation railroad.🚂

Due Process Forever!

PWS

06-12-21