NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 19 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
LUIS ENRIQUE CHOPIN-RAMOS, AKA No. 20-70576 Luis Chopin, AKA Luis Enrique Chopinramos, Agency No. A204-447-702
Petitioner, MEMORANDUM* v.
MERRICK B. GARLAND, Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals
Argued and Submitted August 5, 2021 Pasadena, California
Before: PAEZ, CALLAHAN, and HURWITZ, Circuit Judges. Dissent by Judge PAEZ
Luis Enrique Chopin-Ramos, a native and citizen of Mexico, obtained
Deferred Action for Childhood Arrivals (“DACA”) status, which was terminated
after a California conviction for driving under the influence and causing bodily
injury. An immigration judge (“IJ”) then denied Chopin-Ramos’s applications for
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. asylum and withholding of removal but granted deferral of removal under the
Convention Against Torture (“CAT”). The Board of Immigration Appeals (“BIA”)
reversed, finding the IJ’s prediction that Chopin-Ramos would more likely than not
be tortured with government acquiescence if returned to Mexico clearly erroneous.
We deny Chopin-Ramos’s petition for review of the BIA’s CAT ruling.
1. Because an IJ’s prediction that a petitioner will more likely than not be
tortured by a foreign government or with that government’s acquiescence if removed
is a factual finding, the BIA must review it for clear error. See Ridore v. Holder,
696 F.3d 907, 915–16 (9th Cir. 2012). “[T]he BIA may find an IJ’s factual finding
to be clearly erroneous only if it is illogical or implausible, or without support in
inferences that may be drawn from the facts in the record.” Guerra v. Barr, 974
F.3d 909, 912 (9th Cir. 2020) (cleaned up).
The BIA found that the IJ clearly erred to the extent she implicitly found that
a cousin who raped Chopin-Ramos two decades ago, when petitioner was six years
old, was likely to harm him upon his return to Mexico. The BIA expressly noted the
facts in the record that rendered such a predictive inference implausible, including
that Chopin-Ramos was a child at the time of the rape, lived unharmed in Mexico
for 6 years after the incident, has had no contact with the rapist since the incident,
and does not know where the rapist is. The BIA did not engage in impermissible
factfinding, but rather found that the predicate facts found by the IJ did not support
2 a reasonable inference that the cousin would torture Chopin-Ramos in the future
with the acquiescence of the Mexican government.
2. Chopin-Ramos also claimed that he was more likely than not to be tortured
if removed on account of his status as gay male in a same-sex marriage. But in
challenging the BIA decision that the IJ’s prediction of future torture was not
supported by the record, Chopin-Ramos “does not point to any fact found by the IJ
that was ignored by the BIA, or any fact found by the BIA that was not found by the
IJ” other than the predictive inference. Perez-Palafox v. Holder, 744 F.3d 1138,
1145 (9th Cir. 2014). In contrast to Guerra, the BIA acknowledged and accepted
the “key factual findings on which the IJ based her conclusion,” 974 F.3d at 914;
including that there was discrimination and violence against homosexuals in
Mexico, that LGBTQ individuals were mistreated in prison, and that “the
government did not always investigate” crimes against homosexuals “especially
outside of Mexico City.” But the BIA concluded that these facts were insufficient
to support an inference that Chopin-Ramos likely would be tortured with
government acquiescence if returned to Mexico. The BIA noted that the IJ failed to
make any individualized finding of specific intent to torture by any actor and that
the record showed areas in Mexico, including Mexico City, to which Chopin-Ramos
may be able to safely relocate. Thus, this is not a case in which the BIA
“substitute[d] its own view of the facts” in finding “clear error.” See Ridore, 696
3 F.3d at 919.
3. The remaining issue is whether “the facts found by the IJ (and that the BIA
determines are not clearly erroneous) meet the legal requirements for relief under
the CAT.” See id. at 915 (cleaned up). They do not.
a. Apart from the past rape by the cousin, which the BIA appropriately
addressed for the reasons stated above, Chopin-Ramos’s fear of future torture rests
on country condition reports. But, “[a]lthough the reports confirm that torture takes
place in [Mexico], they do not compel the conclusion that [Chopin-Ramos] would
be tortured if returned.” Almaghzar v. Gonzales, 457 F.3d 915, 923 (9th Cir. 2006).
The BIA also cited evidence showing improved legal protections and increasing
tolerance for same-sex marriages and LGBTQ individuals in various Mexican states,
see Lanza v. Ashcroft, 389 F.3d 917, 936 (9th Cir. 2004) (denial of CAT relief on
similar evidence), and reasonably concluded that Chopin-Ramos may be able to
relocate within Mexico to avoid any feared torture, see 8 C.F.R. § 1208.16(c)(3)(ii).
b. Nor does the record compel the conclusion that the government will
acquiesce in any future torture. See Garcia-Milian v. Holder, 755 F.3d 1026, 1033
(9th Cir. 2014) (even assuming the petitioner would be tortured upon return, he must
show “sufficient state action involved in that torture”) (cleaned up). There is no
claim of government acquiescence in the rape. The IJ cited reports that gays were
tortured in prison and that police outside of Mexico City sometimes did not
4 investigate crimes against gays. But there is no evidence that Chopin-Ramos is
likely to be incarcerated and no suggestion that he could not safely locate to an area,
including Mexico City, where police investigate such crimes.
PETITION FOR REVIEW DENIED.
5 FILED Luis Chopin-Ramos v. Garland, 20-70576 AUG 19 2022 Paez, Circuit Judge, dissenting: MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS
In my view, the Board of Immigration Appeals (“BIA”) erred by failing to
faithfully apply clear error review of the Immigration Judge’s (“IJ”) factual
findings, including the IJ’s predictive inference that Chopin-Ramos is likely to
suffer torture with government acquiescence if he is deported to Mexico. Instead,
the BIA impermissibly substituted its own view of and reweighed the facts.
Therefore, I respectfully dissent from the majority’s denial of Chopin-Ramos’s
petition for review of his claim for protection under the Convention Against
Torture (“CAT”).
The majority correctly observes that the BIA reviews for clear error the IJ’s
prediction whether Chopin-Ramos is more likely than not to suffer torture. In so
doing, “the BIA cannot disregard the IJ’s findings and substitute its own view of
the facts.” Ridore v.
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 19 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
LUIS ENRIQUE CHOPIN-RAMOS, AKA No. 20-70576 Luis Chopin, AKA Luis Enrique Chopinramos, Agency No. A204-447-702
Petitioner, MEMORANDUM* v.
MERRICK B. GARLAND, Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals
Argued and Submitted August 5, 2021 Pasadena, California
Before: PAEZ, CALLAHAN, and HURWITZ, Circuit Judges. Dissent by Judge PAEZ
Luis Enrique Chopin-Ramos, a native and citizen of Mexico, obtained
Deferred Action for Childhood Arrivals (“DACA”) status, which was terminated
after a California conviction for driving under the influence and causing bodily
injury. An immigration judge (“IJ”) then denied Chopin-Ramos’s applications for
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. asylum and withholding of removal but granted deferral of removal under the
Convention Against Torture (“CAT”). The Board of Immigration Appeals (“BIA”)
reversed, finding the IJ’s prediction that Chopin-Ramos would more likely than not
be tortured with government acquiescence if returned to Mexico clearly erroneous.
We deny Chopin-Ramos’s petition for review of the BIA’s CAT ruling.
1. Because an IJ’s prediction that a petitioner will more likely than not be
tortured by a foreign government or with that government’s acquiescence if removed
is a factual finding, the BIA must review it for clear error. See Ridore v. Holder,
696 F.3d 907, 915–16 (9th Cir. 2012). “[T]he BIA may find an IJ’s factual finding
to be clearly erroneous only if it is illogical or implausible, or without support in
inferences that may be drawn from the facts in the record.” Guerra v. Barr, 974
F.3d 909, 912 (9th Cir. 2020) (cleaned up).
The BIA found that the IJ clearly erred to the extent she implicitly found that
a cousin who raped Chopin-Ramos two decades ago, when petitioner was six years
old, was likely to harm him upon his return to Mexico. The BIA expressly noted the
facts in the record that rendered such a predictive inference implausible, including
that Chopin-Ramos was a child at the time of the rape, lived unharmed in Mexico
for 6 years after the incident, has had no contact with the rapist since the incident,
and does not know where the rapist is. The BIA did not engage in impermissible
factfinding, but rather found that the predicate facts found by the IJ did not support
2 a reasonable inference that the cousin would torture Chopin-Ramos in the future
with the acquiescence of the Mexican government.
2. Chopin-Ramos also claimed that he was more likely than not to be tortured
if removed on account of his status as gay male in a same-sex marriage. But in
challenging the BIA decision that the IJ’s prediction of future torture was not
supported by the record, Chopin-Ramos “does not point to any fact found by the IJ
that was ignored by the BIA, or any fact found by the BIA that was not found by the
IJ” other than the predictive inference. Perez-Palafox v. Holder, 744 F.3d 1138,
1145 (9th Cir. 2014). In contrast to Guerra, the BIA acknowledged and accepted
the “key factual findings on which the IJ based her conclusion,” 974 F.3d at 914;
including that there was discrimination and violence against homosexuals in
Mexico, that LGBTQ individuals were mistreated in prison, and that “the
government did not always investigate” crimes against homosexuals “especially
outside of Mexico City.” But the BIA concluded that these facts were insufficient
to support an inference that Chopin-Ramos likely would be tortured with
government acquiescence if returned to Mexico. The BIA noted that the IJ failed to
make any individualized finding of specific intent to torture by any actor and that
the record showed areas in Mexico, including Mexico City, to which Chopin-Ramos
may be able to safely relocate. Thus, this is not a case in which the BIA
“substitute[d] its own view of the facts” in finding “clear error.” See Ridore, 696
3 F.3d at 919.
3. The remaining issue is whether “the facts found by the IJ (and that the BIA
determines are not clearly erroneous) meet the legal requirements for relief under
the CAT.” See id. at 915 (cleaned up). They do not.
a. Apart from the past rape by the cousin, which the BIA appropriately
addressed for the reasons stated above, Chopin-Ramos’s fear of future torture rests
on country condition reports. But, “[a]lthough the reports confirm that torture takes
place in [Mexico], they do not compel the conclusion that [Chopin-Ramos] would
be tortured if returned.” Almaghzar v. Gonzales, 457 F.3d 915, 923 (9th Cir. 2006).
The BIA also cited evidence showing improved legal protections and increasing
tolerance for same-sex marriages and LGBTQ individuals in various Mexican states,
see Lanza v. Ashcroft, 389 F.3d 917, 936 (9th Cir. 2004) (denial of CAT relief on
similar evidence), and reasonably concluded that Chopin-Ramos may be able to
relocate within Mexico to avoid any feared torture, see 8 C.F.R. § 1208.16(c)(3)(ii).
b. Nor does the record compel the conclusion that the government will
acquiesce in any future torture. See Garcia-Milian v. Holder, 755 F.3d 1026, 1033
(9th Cir. 2014) (even assuming the petitioner would be tortured upon return, he must
show “sufficient state action involved in that torture”) (cleaned up). There is no
claim of government acquiescence in the rape. The IJ cited reports that gays were
tortured in prison and that police outside of Mexico City sometimes did not
4 investigate crimes against gays. But there is no evidence that Chopin-Ramos is
likely to be incarcerated and no suggestion that he could not safely locate to an area,
including Mexico City, where police investigate such crimes.
PETITION FOR REVIEW DENIED.
5 FILED Luis Chopin-Ramos v. Garland, 20-70576 AUG 19 2022 Paez, Circuit Judge, dissenting: MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS
In my view, the Board of Immigration Appeals (“BIA”) erred by failing to
faithfully apply clear error review of the Immigration Judge’s (“IJ”) factual
findings, including the IJ’s predictive inference that Chopin-Ramos is likely to
suffer torture with government acquiescence if he is deported to Mexico. Instead,
the BIA impermissibly substituted its own view of and reweighed the facts.
Therefore, I respectfully dissent from the majority’s denial of Chopin-Ramos’s
petition for review of his claim for protection under the Convention Against
Torture (“CAT”).
The majority correctly observes that the BIA reviews for clear error the IJ’s
prediction whether Chopin-Ramos is more likely than not to suffer torture. In so
doing, “the BIA cannot disregard the IJ’s findings and substitute its own view of
the facts.” Ridore v. Holder, 696 F.3d 907, 919 (9th Cir. 2012). “Either it must find
clear error, explaining why; or, if critical facts are missing, it may remand to the
IJ.” Id. The majority holds that the BIA appropriately determined that the IJ’s
factual findings were clearly erroneous because the IJ’s findings “were insufficient
to support an inference that Chopin-Ramos likely would be tortured with
government acquiescence if returned to Mexico.” Maj. Disp. 3. I disagree.
As the majority acknowledges, the BIA did not take issue with any of the
predicate factual findings relied upon by the IJ. Indeed, the BIA expressly credited 1 the very factual findings that supported the IJ’s grant of deferral of removal.
Nonetheless, the BIA rejected the IJ’s conclusion that those findings supported a
predictive inference that Chopin-Ramos is likely to experience torture in Mexico.
But, in fact, the BIA legally erred because it impermissibly reweighed the
factual findings and record evidence that supported the IJ’s analysis and predictive
inference. The IJ’s inference that Chopin-Ramos is likely to suffer torture was
based on the IJ’s assessment of the aggregate risk posed to Chopin-Ramos, as
demonstrated by the record evidence. Chopin-Ramos credibly testified 1 that he was
raped as a child and that the rape was committed by a family member. Chopin-
Ramos further testified that he fears the rapist will retaliate against him because he
disclosed the perpetrator’s identity to his family. Moreover, the IJ considered
record evidence of country conditions showing that (1) crimes committed against
LGBT individuals are neither investigated nor prosecuted in Mexico and police are
often complicit in the persecution of the community, (2) according to survey data
of LGBT individuals in Mexico, six in ten respondents knew an LGBT person
murdered in the past three years, (3) over 200 murders of LGBT persons were
reported between 2014-16,and (4) attacks against the LGBT community surged in
response to legislation permitting same-sex marriage.
1 The IJ found Chopin-Ramos credible, and the government did not contest this determination in its appeal to the BIA. 2 The BIA did not question the propriety or accuracy of any of the record
evidence or of any of the IJ’s predicate factual findings. Instead, the BIA made
unsupported, conclusory assertions that the evidence did not support the IJ’s
determination that Chopin-Ramos carried his burden to show he was more likely
than not to experience torture in Mexico. To do so, the BIA impermissibly
“substitute[d] its own view of the facts.” Ridore, 696 F.3d at 919.
First, the BIA discounted the weight of the rape that Chopin-Ramos
experienced as a child and ignored Chopin-Ramos’s testimony about his fear that
the perpetrator would target him again. Instead of accounting for the context that
Chopin-Ramos was raped by a family member and that he fears retaliation because
he disclosed the rape and identity of the rapist to his family, the BIA focused on
Chopin-Ramos’s testimony that he lacked personal contact with the person who
raped him to dismiss any possibility that Chopin-Ramos could face future harm by
the rapist. Second, the BIA speculated that “increasing public tolerance of LGBT
individuals in various Mexican states” makes it appear that Chopin-Ramos “may
be able to relocate within Mexico.” But the BIA does not point to record evidence
to support that observation and disregarded country conditions evidence in the
record to the contrary. And third, the BIA provided no basis for recasting record
evidence of pervasive mistreatment and neglect of LGBT persons by Mexican
police, as merely “some dismissive attitudes among police officers.”
3 The criticisms that the BIA lodged against the IJ’s findings and predictive
inference amount to the BIA’s preferred weighing of the evidence. This was error.
“[T]he 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, 974 F.3d 909, 914
(9th Cir. 2020). Nowhere does the BIA explain why the IJ’s account of the
evidence is implausible. Instead, the BIA asserted a different view of the balance
of the evidence. It may not do so. “[T]he BIA may not reverse an IJ’s finding
simply because it is convinced that it would have decided the case differently.” Id.
at 913 (quotation marks and citation omitted). “Where there are two permissible
views of the evidence, the [IJ]’s choice between them cannot be clearly
erroneous.” Id.
Thus, I would grant Chopin-Ramos’s petition for review because the BIA
legally erred by failing to faithfully apply clear error review of the IJs factual
findings. Because this error necessarily infected the BIA’s review of the IJ’s
consideration of “all relevant evidence” related to Chopin-Ramos’s application for
CAT relief, Maldonado v. Lynch, 786 F.3d 1155, 1164 (9th Cir. 2015), I would
remand to the BIA to conduct a proper review.