United States v. 2020-06-04 | 19-70568 | ARMANDO NUNEZ-SALGADO V. WILLIAM BARR | nonprecedential | memorandum disposition |

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ARMANDO NUNEZ-SALGADO, AKA
Spider Nunes,

Petitioner,

v.

WILLIAM P. BARR, Attorney General,

Respondent.

No. 19-70568

Agency No. A073-886-461

MEMORANDUM
*

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

Submitted April 17, 2020
**

San Francisco, California

Before: HAWKINS and PAEZ, Circuit Judges, and RESTANI,
***
Judge.

Armando Nunez-Salgado petitions for review of the Board of Immigration
Appeals’s (BIA) reversal of the Immigration Judge’s (IJ) grant of deferral of

*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.

**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

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

JUN 4 2020

MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

2
removal under the United Nations Convention Against Torture and other Cruel,
Inhuman or Degrading Treatment or Punishment (CAT). We grant the petition for
review and remand to the BIA.
The BIA erred by reviewing de novo the IJ’s findings of fact. See 8 C.F.R. §
1003.1(d)(3)(i); Matter of S-H-, 23 I & N Dec. 462, 464 (BIA 2002). The IJ first
concluded Nunez-Salgado had experienced “numerous incidents of police
brutality,” one of which was “severe enough to potentially qualify as torture.”
Second, she explained that the country conditions evidence provided by Nunez-
Salgado gave important credibility to the police’s threats that they would “get rid
of [Nunez-Salgado]” if they saw him again. Third, she noted that Nunez-Salgado’s
appearance and personal history—including “[e]vidence [that his] former gang life
is tattooed on his face”—“signaled to Mexican police that he was a person to be
wary of,” and he was “repeatedly abused” by police “because he appears to be a
gang member.” Finally, she stated that Nunez-Salgado “cannot safely relocate in
Mexico,” because he had experienced violence at the hands of police in three
different cities in Mexico. “After considering all the evidence,” she held it would
“only be a matter of time before Mexican police misconduct against him crosses
the line demarcating brutality from torture.”
The BIA held that the IJ’s conclusion that the violence against Nunez-
Salgado will eventually “cross[] the line” into torture was too “speculative”

3
because the violence “did not steadily escalate.” In so holding, the BIA displaced
a factual—not legal—finding.
1
“The clear error standard does not allow the BIA to
reweigh the evidence when the IJ’s account of the evidence is plausible,” Guerra v.
Barr, 951 F.3d 1128, 1135 (9th Cir. 2020), and the conclusion that the violence
against Nunez-Salgado escalated and will continue to escalate is, at least, plausible.
Even though “[t]he only incident the Immigration Judge considered to ‘potentially
qualify as torture’ was the third incident of 2014,” that event was the final one to
occur in Tijuana, before Nunez-Salgado moved to Rosarito. Once he moved, the
violence began again and continued until he fled to the United States.
In addition, the BIA’s statements amount to “conclusory pronouncement[s]”
that the IJ erred, which is insufficient for clear error review. Zumel v. Lynch, 803
F.3d 463, 475 (9th Cir. 2015) (internal quotation marks omitted). Other than
noting that the IJ’s finding of likely torture was too “speculative,” the BIA stated
that the country conditions evidence was too “generalized” to establish a likelihood
of torture. Although the IJ’s findings were recounted in detail, the BIA did not
provide any further explanation for the reversal. It did not address the aggregate

1
An “Immigration Judge’s predictive findings of what may or may not occur in the
future are findings of fact[.]” Matter of Z-Z-O-, 26 I & N Dec. 586, 590 (BIA
2015). The parties agree on this. The government does not argue that the BIA
properly reviewed de novo the legal question of whether Nunez-Salgado met his
burden of proof under CAT; it argues that the BIA properly reviewed the IJ’s fact
findings for clear error.

4
risk of harm relied upon by the IJ and concluded only that the chain of the IJ’s
assumptions was insufficient—without specifying the deficient links in the chain
or identifying additional facts that may have been needed.
Importantly, the IJ relied cumulatively on the threats made by police, Nunez-
Salgado’s appearance, his failed relocations within Mexico, and the country
conditions evidence to conclude that he would likely be tortured if returned. The
BIA’s reasoning “misapprehends and thus misstates the totality of the IJ’s findings
and conclusions.” See Ridore v. Holder, 696 F.3d 907, 918 (9th Cir. 2012); see
also Cole v. Holder, 659 F.3d 762, 775 (9th Cir. 2011). The IJ did not “find that
[Nunez-Salgado] was likely to be tortured just because there were ‘acts of torture
in [Mexico],’” Ridore, 696 F.3d at 918; she “inferred that [Nunez-Salgado’s]
specific circumstances . . . make him likely to attract attention of the police,”
Guerra, 951 F.3d at 1136.
The IJ’s conclusions and findings were not illogical, implausible, or without
“support in inferences that may be drawn from the facts in the record.” Anderson
v. Bessemer City, 470 U.S. 564, 577 (1985). The BIA erred by reviewing de novo
the evidence.
2

PETITION GRANTED and REMANDED.

2
The BIA did not, however, improperly make its own fact findings. See 8 C.F.R. §
1003.1(d)(3)(iv).