CA9 on Standard of Review: Soto-Soto v. Garland

Soto-Soto v. Garland

"Petitioner Delfina Soto-Soto was brutally tortured by Mexican state police until she confessed to the kidnap and murder of five-year-old Bernardino Bravo Gomez. After the Mexican trial court dismissed the charges against her due to lack of evidence of the crimes charged, she fled to the United States. Mexican prosecutors subsequently refiled the charges against Soto-Soto, INTERPOL put out a Red Notice for her extradition to Mexico, and the Department of Homeland Security (DHS) placed her in removal proceedings. The Immigration Judge (IJ) granted deferral of removal under the Convention Against Torture (CAT) based on a factual finding that Soto-Soto was more likely than not to be tortured again if removed to Mexico. The Board of Immigration Appeals (BIA) reversed the grant of CAT relief and ordered Soto-Soto removed. Soto-Soto appealed. We vacate the BIA’s order and remand with instructions to grant relief. ... On appeal, Soto-Soto contends that—though the BIA’s opinion says it reviews the IJ’s finding under the clear error standard—the substance of the BIA opinion improperly engages in de novo review. We agree. ...  The BIA’s reasoning is therefore insufficient to demonstrate that the BIA engaged in clear error review. Instead, the BIA’s reasoning reflects a de novo weighing of the evidence. Moreover, the BIA’s view of the evidence lacks support in the record. ... Based on this analysis, the BIA’s decision reflects de novo, rather than clear error, review. The BIA therefore applied the wrong standard of review, substituting its own view of the evidence for the IJ’s. ... Because the record compels the conclusion that SotoSoto carried her evidentiary burden, we GRANT the petition and REMAND for the BIA to grant deferral of removal pursuant to CAT."

[Hats off to San Francisco Federal Defender Hector A. Vega-Reyes!]