                              NOT FOR PUBLICATION                        FILED
                    UNITED STATES COURT OF APPEALS                        AUG 4 2020
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                              FOR THE NINTH CIRCUIT

CARLOS EDELMIN SAUCEDA-                         No.    19-70658
HERNANDEZ,
                                                Agency No. A043-563-004
                Petitioner,

 v.                                             MEMORANDUM*

WILLIAM P. BARR, Attorney General,

                Respondent.

                     On Petition for Review of an Order of the
                         Board of Immigration Appeals

                       Argued and Submitted July 14, 2020
                           San Francisco, California

Before: TALLMAN and HUNSAKER, Circuit Judges, and SILVER,** District
Judge.

      Carlos Edelmin Sauceda-Hernandez (“Sauceda”), a native and citizen of

Honduras, petitions for review of the Board of Immigration Appeals’ (“BIA”)

decision reversing the Immigration Judge’s (“IJ”) granting of deferral of removal



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
              The Honorable Roslyn O. Silver, Senior United States District Judge
for the District of Arizona, sitting by designation.
under the Convention Against Torture (“CAT”). We have jurisdiction pursuant to

8 U.S.C. § 1252(a)(2)(D), and we grant the petition.

      Sauceda’s sole argument on appeal is that the BIA did not apply the correct

standard of review. “Whether the BIA applied the correct standard of review to the

IJ’s decision is a question of law, and is thus reviewed de novo.” Vitug v. Holder,

723 F.3d 1056, 1062–63 (9th Cir. 2013) (citation omitted).

      Pursuant to the applicable regulations, “the BIA shall not ‘engage in de novo

review of findings of fact determined by an immigration judge.’” Ridore v.

Holder, 696 F.3d 907, 911 (9th Cir. 2012) (quoting 8 C.F.R. § 1003.1(d)(3)(i)).

Instead, “the BIA may only review the IJ’s factual findings to determine whether

they are clearly erroneous.” Guerra v. Barr, 951 F.3d 1128, 1133 (9th Cir. 2020).

An IJ’s factual finding is clearly erroneous only “if it is ‘illogical or implausible,’

or without ‘support in inferences that may be drawn from the facts in the record.’”

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

Bessemer City, 470 U.S. 564, 577 (1985)). The BIA is not entitled to overturn an

IJ’s factual findings “simply because the Board would have weighed the evidence

differently or decided the facts differently had it been the factfinder.” Id. at 1171

(quoting Board of Immigration Appeals: Procedural Reforms to Improve Case

Management, 67 Fed. Reg. 54,878, 54,889 (Aug. 26, 2002)). And an IJ’s factual

findings may “include past events, but they are not restricted to historical events.”


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Vitug, 723 F.3d at 1063 (quoting Kaplun v. Att’y Gen., 602 F.3d 260, 269 (3d Cir.

2010)).

      Sauceda is a former member of the MS-13 gang and has multiple gang-

related tattoos. During his immigration proceedings, the IJ heard from Sauceda,

his mother, and an expert witness regarding conditions in Honduras. The IJ

credited the testimony of these witnesses and issued a factually detailed written

opinion with credibility findings concluding Sauceda “faces a clear probability of

torture in Honduras.” Based on that finding, the IJ granted Sauceda’s application

for deferral of removal under CAT.

      In reversing the IJ, the BIA claimed it was applying the “clearly erroneous

standard.” But the BIA’s mere recitation of the appropriate standard does not

prevent us from examining what standard it actually applied. See Rodriguez, 683

F.3d at 1170 (“We do not rely on the Board’s invocation of the clear error

standard.”).

      Without elaboration, the BIA determined the threats received by Sauceda

and his family, which were credited by the IJ, were “too vague and remote in time

to establish that [he] is likely to be tortured upon his return to Honduras.” But the

BIA offered no reasoned explanation as to why the IJ’s conclusion was not

supported by permissible inferences from the record. Likewise, the BIA afforded

no deference to the IJ’s finding that Sauceda’s tattoos would lead him to be


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tortured, or its determination that the Honduran government would acquiesce in

Sauceda’s torture by putting him into a gang-controlled prison: it simply declared

them erroneous.

        While the BIA may disagree with the IJ’s factual findings, it did not

identify facts showing the IJ’s findings were “illogical, implausible, or not

supported by permissible inferences from the record.” Guerra, 951 F.3d at 1136.

      In sum, the BIA did not apply the deferential standard of review it was

required to apply. See Zumel v. Lynch, 803 F.3d 463, 476 (9th Cir. 2015) (“The

BIA’s failure to evaluate the factual findings of the IJ that were key to the IJ’s

holding, indicates the BIA was not reviewing the IJ’s determination for clear

error.” (citation and quotation omitted)). “Because the BIA applied the wrong

legal standard to [Sauceda’s] claim, the appropriate relief from this court is remand

for reconsideration under the correct standard.” Id. at 1137 (internal quotation

marks and citation omitted).

       PETITION GRANTED AND REMANDED.




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