PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ______________

No. 20-3300 ______________

JULIANA MARTIREZ ARREAGA BRAVO, Petitioner

v.

ATTORNEY GENERAL UNITED STATES OF AMERICA ______________

On Petition for Review of a Decision And Order of the Board of Immigration Appeals (BIA-1: A209-004-970) Immigration Judge: Dinesh C. Verma ______________

Submitted Under Third Circuit L.A.R. 34.1(a) July 13, 2021

Before: MCKEE, GREENAWAY, JR., and RESTREPO, Circuit Judges

(Filed: March 2, 2022) _____________

OPINION ______________

Brett A. Tarver Troutman Pepper 600 Peachtree Street, N.E. Suite 2500, Bank of America Plaza Atlanta, GA 30308

Anthony C. Vale Troutman Pepper Hamilton Sanders 3000 Two Logan Square 18th and Arch Streets Philadelphia, PA 19103 Attorneys for Petitioner

Merrick Garland, Attorney General Lindsay Marshall Jeffrey R. Meyer United States Department of Justice Office of Immigration Litigation P.O. Box 878 Ben Franklin Station Washington, DC 20044 Attorneys for Respondent

2 GREENAWAY, JR., Circuit Judge.

When an Immigration Judge (“IJ”) makes findings of

fact in relation to an individual’s petition for relief under the

Convention Against Torture (“CAT”), the Board of

Immigration Appeals (“BIA”), in reviewing the IJ’s decision,

must defer to the IJ’s factual findings unless they are clearly

erroneous.

Here, the IJ held that Petitioner Juliana Martirez

Arreaga-Bravo demonstrated that she will more likely than

not experience torture if she returns to Guatemala, and that

the Guatemalan government would acquiesce in such torture.

The IJ thus granted her application for CAT relief and

ordered withholding of removal. The Department of

Homeland Security appealed, and the BIA reversed—

instituting a removal order. In coming to its conclusion, the

BIA explained that it was not “sufficiently persuade[d]” that

Arreaga-Bravo faces a particularized risk of torture and that it

3 was “unable to agree” with the IJ’s conclusions. A.R. 5.

Rather than defer to the IJ’s factual findings and review for

clear error, the BIA inserted itself into the factfinder role and

disagreed with the IJ’s weighing of the evidence. This was

error. As a result, we will vacate the BIA’s final order of

removal and remand for further proceedings consistent with

this opinion.

I. BACKGROUND

Arreaga-Bravo is a thirty-one-year-old woman from

Tacana, Guatemala. She arrived in the United States in May

2016. Shortly after entering the country, the Department of

Homeland Security began removal proceedings by issuing a

Notice to Appear (“NTA”). At a Master Calendar hearing in

December 2016, Arreaga-Bravo admitted to the factual

allegations in the NTA. In May 2017, she applied for asylum

and withholding of removal under CAT.

4 Arreaga-Bravo claimed that she had fled Guatemala to

escape harassment and sexual violence by the Mara 18 gang.

She testified that violence against women is prevalent in

Guatemala. To support this claim, she discussed the rape of

her older sister, who was fifteen years old at the time of the

incident. Arreaga-Bravo noted the rape was not reported to

the police because the nearest police station was four hours

away. After the incident, Arreaga-Bravo’s family moved to a

town called Amorisan. Arreaga-Bravo alleged that after

moving, her youngest sister was raped by a man. Arreaga-

Bravo stated that there was a police report filed, but the police

never investigated the complaint further or arrested the man

for rape. Arreaga-Bravo also alleged that the rapist’s mother

offered her family a bribe, which the family turned down and

also reported to the police.

Arreaga-Bravo explained that after the incident with

her younger sister, her family once again moved, this time, to

5 a town called Malacatan. Arreaga-Bravo stated that while

living in Malacatan, she worked in Talisman, a dangerous

town near the Mexican border. In her amended affidavit,

Arreaga-Bravo detailed an event in which a friend in

Talisman was raped by multiple men while working.

As for her own experiences, Arreaga-Bravo discussed

an event in which a man came inside her store and asked how

much it would cost to sleep with her. She alleged that in

early 2016, she was targeted by Mara 18 gang members to be

enlisted to become a gang member’s girlfriend. Arreaga-

Bravo refused and from that point she began to receive

threatening messages. Arreaga-Bravo was told that

eventually she would have to capitulate to the gang’s

demands. The harassment against her escalated until one day,

two men grabbed her on the street, pulled out a knife, and

threatened to kill her unless she surrendered to the gang.

Arreaga-Bravo described this event as the impetus for her

6 fleeing to the United States. She testified that she did not

relocate within the country because she felt that the Mara 18

gang would threaten her wherever she lived and that if she

returned to Guatemala, gang members would find her and kill

her.

In April 2018, the IJ issued a thorough and well-

reasoned twenty-four-page decision. The IJ found that

Arreaga-Bravo was generally credible, candid, and

forthcoming. As for Arreaga-Bravo’s claim for asylum, the IJ

found that she had not established past persecution or well-

founded fear of future persecution because her proposed

social groups—“Guatemalan women,” “Young Guatemalan

females,” and “Guatemalan females subjected to gang

recruitment who refuse such recruitment”—did not qualify as

particular social groups sufficient to obtain relief. The IJ

explained that Arreaga-Bravo’s complaints of harassment did

not rise to the level of past persecution because the

7 harassment was not “imminent, concrete and menacing” as to

cause actual harm. A.R. 76 (quoting Chavarria v. Gonzalez,

(3d Cir. 2006)).

But as for her withholding of removal claim under

CAT, the IJ found that it is more likely than not that Arreaga-

Bravo will be harmed if she returns to Guatemala. The IJ

assessed that based on the evidence—including events

experienced by Arreaga-Bravo, her sisters, and friend, and a

country conditions report outlining that Guatemala has the

third highest rate of femicide in the world—Arreaga-Bravo

was vulnerable and would more likely than not be raped or

killed in Guatemala.

The IJ further found that, based on evidence presented,

the Guatemalan government would acquiesce in Arreaga-

Bravo’s torture. The IJ explained that evidence presented—

including the police not filing charges against her younger

sister’s rapist and country conditions evidence showing that

8 the Guatemalan government cannot control violence against

women—was enough to establish the government would

acquiesce in the torture of Arreaga-Bravo. The IJ noted that

while the Guatemalan government has passed a law to combat

violence against women, the law is not fully prosecuted, and

did not preclude the finding that the government would still

acquiesce to torture. Accordingly, the IJ granted Arreaga-

Bravo’s application for CAT relief.

The Government appealed the IJ’s decision. Before

reviewing the IJ’s findings, the BIA acknowledged that it was

reviewing findings of fact for clear error, including any

credibility determinations, and reviewing de novo all other

issues. The BIA found that Arreaga-Bravo had not

established eligibility for protection under CAT, concluding

that the record did not support that it was more likely than not

that she would be tortured with the acquiescence of the

government. The BIA explained that the IJ had speculated in

9 determining Arreaga-Bravo’s likelihood of torture. The BIA

explained that, while the country conditions report evidenced

violence against women in Guatemala generally, it was not

persuaded that Arreaga-Bravo faced a particularized risk of

harm. As such, the BIA held it was “unable to uphold” the

IJ’s decision granting the application for protection under

CAT. A.R. 5. This appeal followed.

II. JURISDICTION AND STANDARD OF REVIEW

The BIA had jurisdiction under

(b)(3). We have jurisdiction under

(a).

For findings of fact, the BIA is required to apply a

clearly erroneous standard of review to the IJ’s

determinations,

(d)(3)(i), and a de novo

standard of review to the IJ’s decisions of law,

(d)(3)(ii). We review de novo whether the agency

properly analyzed the applicant’s CAT protection claim. See

Quinteros v. Att’y Gen.,

(3d Cir. 2019).

10 III. DISCUSSION

Arreaga-Bravo argues that the BIA erred in rejecting

the IJ’s factual finding that it was more likely than not that

she would be tortured if she returned to Guatemala. She also

maintains that the BIA applied the wrong standard of review

to the IJ’s finding that the Guatemalan government will

acquiesce in that torture.

A. LIKELIHOOD OF FUTURE TORTURE

We agree with Arreaga-Bravo that the BIA failed to

apply the clearly erroneous standard in reversing the IJ’s

factual determination on the likelihood of future torture.

To qualify for relief under CAT, an individual must

establish that “it is more likely than not that he or she would

be tortured if removed to the proposed country of removal.”

(c)(2); see Kaplun v. Att’y Gen.,

(3d Cir. 2010). Torture is defined as “an extreme

form of cruel and inhuman treatment and does not include

11 lesser forms of cruel, inhuman or degrading treatment or

punishment that do not amount to torture.”

(a)(2). Likelihood of future torture is “a mixed

question of law and fact” which requires “the IJ [to] address

two questions: ‘(1) what is likely to happen if the petitioner is

removed; and (2) does what is likely to happen amount to the

legal definition of torture?’” Myrie v. Att’y Gen.,

(3d Cir. 2017) (quoting Kaplun,

).

In support of her CAT claim, Arreaga-Bravo provided:

her own testimony; an amended affidavit describing her

experiences; police and medical reports on the 2005 rape of

her sister in Malacatan; news articles describing the existent

country conditions in Guatemala; and the declarations of

three experts about gender-based violence in Guatemala and

the effect of trauma on an asylum applicant’s ability to recall

and recount his or her experiences.

12 The IJ made a factual determination that Arreaga-

Bravo would “more likely than not . . . be raped or killed if

she returned to Guatemala.” A.R. 84. The IJ explained that

Arreaga-Bravo’s “childhood, adolescence, and early

adulthood in Guatemala were plagued with instances of

violence against women.” A.R. 84-85. The IJ detailed these

events:

When [Arreaga-Bravo] was very young, her older sister was raped by a gang member while they were living in La Batalia. Years later, [Arreaga-Bravo’s] younger sister was also raped by a known gang member while they were living in Amorisan. When [Arreaga-Bravo] began working in Talisman, a border town close to Mexico, men often propositioned her for sex, and her friend, who sold ice cream in Talisman, was raped by multiple gang members. When [Arreaga-Bravo] moved to Mal[a]catan, her and her friend were held up at gunpoint and, on another occasion, gang members broke into her family’s home and stole all of their valuables. Beginning in 2016, Mara 18 attempted to recruit [Arreaga-Bravo] to be the girlfriend of one of their gang members. When [Arreaga-Bravo] refused, she started receiving threatening phone messages. [Arreaga-Bravo] changed her

13 telephone number, but the gang members somehow found her new number and continued sending her messages. Two Mara 18 gang members subsequently approached [Arreaga- Bravo] on the street, held her a[t] knifepoint, and threatened to kill her and her family if she refused to join their gang. [Arreaga-Bravo] fled Guatemala shortly after this incident in April 2016.

A.R. 85.

These events, combined with country conditions

evidence presented about the “persistent” and “lethal violence

against women” in Guatemala, led the IJ to find that Arreaga-

Bravo had satisfied her burden of establishing likelihood of

future torture. A.R. 85; see

(“[Arreaga-Bravo’s] prior

encounters with Mara 18, coupled with her sisters’ instances

of past torture, her inability to internally relocate, and her

return to a country with a staggering rate of violence against

women, makes it more likely than not that [Arreaga-Bravo]

would be raped or killed in Guatemala.”).

14 In reviewing this finding on appeal, the BIA concluded

“that the record does not support that it is more likely than not

that [Arreaga-Bravo] will be tortured in Guatemala.” A.R. 4.

The BIA acknowledged the horrific incidents involving

Arreaga-Bravo’s sisters and friend. But it noted that “the

record is unclear” if there are ongoing problems related to

Arreaga-Bravo’s sisters. A.R. 4–5. It explained that “the

absence of past torture and sufficiently individualized

evidence that it is more likely than not that specifically

[Arreaga-Bravo] will be tortured” means it is “unable to agree

with the Immigration Judge’s predictive finding.” A.R. 5-6.

And overall, “on this record, the overall evidence does not

sufficiently persuade us that [Arreaga-Bravo] faces a

particularized risk of torture.” A.R. 5.

We have explained that a finding is clearly erroneous

“when . . . the reviewing court on the entire evidence is left

with the definite and firm conviction that a mistake has been

15 committed.” United States v. Murray,

(3d

Cir. 2016) (internal quotation marks and citation omitted).

But if “there are two permissible views of the evidence, the

factfinder’s choice between them cannot be clearly

erroneous.” Fed. Trade Comm’n v. AbbVie Inc.,

(3d Cir. 2020) (internal quotation marks and citation

omitted). That is the case here.

It was not the BIA’s role to determine whether it

agreed with the IJ’s weighing of the evidence in Arreaga-

Bravo’s favor. Its role was to point to findings by the IJ that

were “an obvious, plain, gross, significant, or manifest error

or miscalculation.” Mendoza-Ordonez v. Att’y Gen.,

(3d Cir. 2017) (internal quotation marks and citation

omitted).1 Rather than do this, the BIA substituted its view of

1 The only instance in which the BIA seemingly applied clear error review was in addressing whether Arreaga-Bravo would be “an ideal target for gang recruitment.” A.R. 4. The BIA

16 the evidence for that of the IJ, rather than reviewing for clear

error, and concluded that it was “not sufficiently persuade[d]”

with the IJ’s conclusion. A.R. 5. But the clear error

“standard plainly does not entitle a reviewing court to reverse

the finding of the trier of fact simply because it is convinced

that it would have decided the case differently.” Alimbaev v.

Att’y Gen.,

(3d Cir. 2017) (quoting

Anderson v. City of Bessemer,

(1985)).

B. GOVERNMENT ACQUIESENCE

The BIA’s misapplication of the clearly erroneous

standard also plagued its analysis of the IJ’s determination

about government acquiescence.

held that the IJ’s description of Arreaga-Bravo “as a single female” was “clearly erroneous” because “the record reflects that she is no longer single.” A.R. 4. But as Arreaga-Bravo correctly points out, “[n]ot only is there no such evidence in the record, but this small point does not provide sufficient reasoning to overturn the IJ’s broader findings.” Pet’r’s Br. 24.

17 In Myrie, we explained that:

In assessing whether an applicant has established that public officials will acquiesce to the feared tortuous [sic] acts of a non-state actor, the IJ also must conduct a two-part analysis. First, the IJ makes a factual finding or findings as to how public officials will likely act in response to the harm the petitioner fears. Next, the IJ assesses whether the likely response from public officials qualifies as acquiescence under the governing regulations. . . . While the Board reviews the first part for clear error, it must review the second de novo.

. The BIA and the IJ “must answer” both

prongs “when evaluating a CAT claim,” and they “may not

ignore evidence favorable to the alien.” Quinteros,

.

The IJ determined that “[b]ased on the evidence before

the Court . . . the Guatemalan government would remain

willfully blind to the tortuous [sic] actions carried out by

gangs and other criminal organizations against women in

18 Guatemala.” A.R. 85–86. The IJ first invoked Arreaga-

Bravo’s own experience as support:

[Arreaga-Bravo] credibly testified that her younger sister . . . was raped by a known gang member in 2005. [Arreaga-Bravo’s] parents reported the rape to the police, but, despite providing medical proof of the rape and identifying the individual responsible, the police stopped investigating [the] rape. Shortly before this, the mother of [Arreaga-Bravo’s sister’s] rapist bribed [Arreaga-Bravo’s] mother to drop the charges. When [Arreaga-Bravo]’s mother refused the bribe, [Arreaga-Bravo] heard rumors that the mother of [Arreaga-Bravo’s sister’s] rapist then bribed the police to drop the charges. [The] rapist was never arrested and no charges were filed against him.

A.R. 86.

Then, the IJ expounded on the country conditions

evidence in the record, which bolstered the IJ’s conclusion

that the Guatemalan government would remain willfully blind

to foreseeable torture of Arreaga-Bravo. The IJ noted that

statistics continue to show “one woman killed every twelve

hours” and “a new case of sexual violence reported every

19 forty-six minutes,” A.R. 86 (citing the 2016 Human Rights

Report), and the government’s efforts to prosecute these

crimes remain poor. See A.R. 87 (“In 2011, more than

20,000 cases were filed with the courts under the 2008 Law

Against Femicide, however, less than three percent of those

cases resulted in a judgment”).

On appeal, the BIA held that “the record does not

support that it is more likely than not that [Arreaga-Bravo]

will be tortured ‘by or at the instigation of or with the consent

of a public official or other person acting in an official

capacity.’” A.R. 5 (citing

(a)(7)). The

BIA noted that there was no evidence that Arreaga-Bravo was

“harmed by a government official.” A.R. 5. The BIA added

that it is “unclear whether [Arreaga-Bravo] ever reported her

own mistreatments to the police,” and that the “record does

not support that the younger sister’s incident from more than

a decade earlier, which allegedly involved police bribery and

20 corruption, is indicative of government acquiescence

involving [Arreaga-Bravo].” A.R. 5. It therefore concluded

that “the overall evidence is insufficient to show that the

police would specifically fail to act, or that their inability to

provide assistance would constitute ‘consent or acquiescence’

under the regulations.’” A.R. 5.

Again, the BIA improperly reviewed the IJ’s factual

findings. In accordance with

(d)(3)(i), the

BIA needed to review the IJ’s finding of fact on the

government acquiescence question for clear error. But the

BIA did not state that it was clearly erroneous for the IJ to

find that the Guatemalan government would be unable to

protect Arreaga-Bravo from the serious harm he found she

was likely to suffer if removed back to Guatemala. Instead,

the BIA seemed to review de novo the IJ’s factual findings as

to how the government is likely to respond to Arreaga-

21 Bravo’s harm.2 This was error. The BIA stepped out of the

bounds of its permissible role.

IV. CONCLUSION

Given the strength and rigor of the IJ’s underlying

opinion, along with the BIA having exceeded its proper scope

of review, we will vacate the BIA’s final order of removal

and remand for further proceedings consistent with this

opinion.

2 In its opposition brief, the Government appears to admit as such. Resp’t’s Br. 29 (“[T]he Board reviewed de novo the Immigration Judge’s determination that the Guatemalan authorities would acquiesce to Petitioner’s torture by Mara 18.”).

22