Josue Luis Tse Sio v. LORETTA E. LYNCH, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSUE LUIS TSE SIO,
Petitioner,
v.
LORETTA E. LYNCH, Attorney General,
Respondent.
No. 11-73889
Agency No. A095-724-184
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted May 7, 2015
Pasadena, California
Before: BEA and FRIEDLAND, Circuit Judges and RICE,** District Judge.
Josue Luis Tse Sio, a native and citizen of Honduras, petitions for review of
a final order of removal from the Board of Immigration Appeals (“BIA”), which
sustained the Government’s appeal of the Immigration Judge’s (“IJ”) decision
FILED
MAY 20 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The Honorable Thomas O. Rice, United States District Judge for the
Eastern District of Washington, sitting by designation.
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granting Sio’s application for withholding of removal.1 We have jurisdiction
pursuant to 8 U.S.C. § 1252. We grant Sio’s petition and remand to the BIA.
We review questions of law, including whether the BIA has applied the
correct standard of review, de novo. Rodriguez v. Holder, 683 F.3d 1164, 1169
(9th Cir. 2012). The BIA reviews the IJ’s determinations of law de novo. 8 C.F.R.
§ 1003.1(d)(3)(ii); see Perez-Palafox v. Holder, 744 F.3d 1138, 1145 (9th Cir.
2014). Conversely, the BIA is prohibited from “engag[ing] in de novo review of
findings of fact determined by an immigration judge;” rather, it reviews such
findings for clear error. 8 C.F.R. § 1003.1(d)(3)(i); see Vitug v. Holder, 723 F.3d
1056, 1063 (9th Cir. 2013). Whether an alien has suffered harm “on account of”
his protected status is a question of fact to be reviewed by the BIA for clear error.
See, e.g., Regalado-Escobar v. Holder, 717 F.3d 724, 726-27 (9th Cir. 2013) (“We
review questions of law de novo and the BIA’s factual findings, including whether
an applicant was persecuted on account of his political opinion, under the
substantial evidence standard.”).
1 The BIA also affirmed the IJ’s denial of Sio’s applications for asylum and
protection under the Convention Against Torture; however, Sio has not petitioned
for review of these determinations.
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As Sio contends, and the government concedes in its responding brief, 2 the
BIA did not faithfully employ the clearly erroneous standard of review in deciding
Sio was not harmed “on account of” his race or ethnicity. “The BIA may find an
IJ’s factual finding to be clearly erroneous if it is ‘illogical or implausible,’ or
without ‘support in inferences that may be drawn from the facts in the record.’”
Rodriguez, 683 F.3d at 1170 (quoting Anderson v. City of Bessemer City, N.C., 470
U.S. 564, 577 (1985)); Vitug, 723 F.3d at 1063 (“[T]he BIA cannot, under a clear
error standard of review, override or disregard evidence in the record and substitute
its own version of reality or rely simply on its own interpretation of the facts.”
(alteration omitted) (citation omitted) (internal quotation marks omitted)). Because
the BIA weighed the evidence, ignored reasonable inferences that could be drawn
from the record in favor of Sio, and relied on its own interpretation of Sio’s
testimony, the BIA impermissibly engaged in de novo review or otherwise failed to
faithfully apply the clearly erroneous standard of review. 3 This error of law
2 At oral argument, the Government attempted to distance itself from its
concession of error, but did not move to strike or amend its briefing.
3 We do not rely on the BIA’s invocation of the clear error standard; rather,
we review the BIA’s decision to determine whether it faithfully employed this
standard. Rodriguez, 683 F.3d at 1170.
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requires that we GRANT Sio’s petition and REMAND to the Board so it may
apply the correct standard of review.
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