UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

MARIA TORRES DE LOPEZ, a/k/a Maria 

Torresdelopez, a/k/a Maria Teresa 

Torresdelopez, a/k/a Maria Teresa Teresa 

Torrez Delopez, a/k/a Teresa Torrez-Saenz, 

a/k/a Maria Torres de Lopez, a/k/a Maria 

Teresa Teresa Torres Delopez, 

 Petitioner, 

v. 

MERRICK B. GARLAND, United States 

Attorney General,*

 

 Respondent. 

No. 20-9523 

(Petition for Review) 

_________________________________ 

ORDER AND JUDGMENT**

_________________________________ 

Before MATHESON, BALDOCK, and CARSON, Circuit Judges. 

_________________________________ 

*

 On March 11, 2021, Merrick B. Garland became Attorney General of the 

United States. Consequently, his name has been substituted for William P. Barr as 

Respondent. See Fed. R. App. P. 43(c)(2). 

** After examining the briefs and appellate record, this panel has determined 

unanimously that oral argument would not materially assist in the determination of 

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore 

ordered submitted without oral argument. This order and judgment is not binding 

precedent, except under the doctrines of law of the case, res judicata, and collateral 

estoppel. It may be cited, however, for its persuasive value consistent with 

Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. 

FILED 

United States Court of Appeals 

Tenth Circuit 

April 16, 2021

Christopher M. Wolpert 

Clerk of Court
2 

Maria Torres de Lopez, a native and citizen of Mexico, appeals the denial of 

her application for deferral of removal under the United Nations Convention Against 

Torture (CAT). Exercising jurisdiction under 8 U.S.C. § 1252(a), we grant the 

petition for review and remand for further proceedings. 

I. Background

 Torres de Lopez became a lawful permanent resident (LPR) of the United 

States in 1986 and resided in the Denver, Colorado area. In 2004, she pled guilty to 

one count of importing a quantity of marijuana. She was sentenced to one year plus 

one day in prison, and she lost her LPR status. In 2005, after her release from prison, 

an immigration judge (IJ) ordered Torres de Lopez removed to Mexico based on her 

conviction. Soon after her removal, she returned to Denver. 

In 2018, acting on an anonymous tip to an immigration-law enforcement 

center, the government served her with a notice of intent to reinstate the prior order 

of removal. Before an immigration officer, Torres de Lopez expressed a fear of 

torture if she returns to Mexico, so her matter was referred to an IJ for 

withholding-only proceedings. See 8 C.F.R. § 208.31(e). There, she sought CAT 

deferral.1

 Before the IJ, Torres de Lopez testified about the basis of her fear of torture if 

she returns to Mexico. In 2003, she traveled to Juárez, Mexico to promote a 

1

 Initially, Torres de Lopez also applied for asylum, statutory withholding of 

removal, and CAT withholding, but she conceded that her importation conviction left 

her eligible only for CAT deferral. 
3 

multilevel marketing business selling nutritional supplements. There, her nephew, 

David, took her to a birthday party for the son of a man known as “El Pato.” Torres 

de Lopez intended to discuss her business with party guests. One of the guests she 

met was Julio Cesar Escarega Murillo, known as “El Tigre,” who was then a 

high-ranking member of the Juárez Cartel but has since led a splinter group to join 

the rival Sinaloa Cartel. Because Torres de Lopez had a Sam’s Club card, El Pato 

asked her to go and purchase a few missing party supplies at a Sam’s Club in nearby 

El Paso, Texas. El Pato gave her $60, and one of his friends provided her with a car. 

One of Torres de Lopez’s sisters accompanied her on the drive. At the border, 

authorities searched the car and found 64 pounds of marijuana, which led to her 

importation conviction and imprisonment. Torres de Lopez told the IJ that she did 

not know the marijuana was in the car. 

 After her release from prison in 2005, Torres de Lopez went to Camargo, 

Mexico, where one of her sisters lived. There, David informed her that the marijuana 

she was convicted of importing belonged to El Tigre. About two weeks after Torres 

de Lopez’s arrival there, she went on an outing to a lake with family. El Tigre and 

another man approached. According to Torres de Lopez, El Tigre said, “[W]e finally 

found you,” and called her either a “dog” or a “bitch.” Admin. R., Vol. I at 110. The 

other man grabbed her by the hair, pulled her back, and hit her on the side of the face 

with a hard metal object, possibly a gun, which left her bleeding and with permanent 

hearing damage. When her family approached, the men fled. She did not file a 
4 

police report because David told her doing so would make things worse since 

El Tigre was connected to the police. 

 After this incident, Torres de Lopez and David went to his mother’s house in 

Chihuahua, Mexico. David’s mother is another of Torres de Lopez’s siblings. In 

December 2005, after Torres de Lopez had been at that house for two or three weeks, 

El Tigre and the man who had assaulted Torres de Lopez at the lake showed up. 

Hidden, she listened as El Tigre asked David where she was. El Tigre said he was 

going to keep looking for her and, by forming his hand into the shape of a gun and 

pointing it at David, threatened to shoot David if he did not tell El Tigre where 

Torres de Lopez was. The men then left. 

 David told Torres de Lopez that she had to flee because El Tigre wanted to kill 

her for losing the marijuana and because El Tigre held her responsible for the death 

of El Pato, who was killed while Torres de Lopez was in prison. Torres de Lopez 

immediately returned to the United States and has since lived in the Denver area. 

 In 2006, Torres de Lopez spoke to David, who told her never to return to 

Mexico “because they were threatening him asking for [her].” Id. at 119. Three days 

later, David disappeared. No one knows what happened to him. In 2016, David’s 

brother, Jose Enrique, told Torres de Lopez “that he was going through the same 

thing. That they had beat him and they were threatening him asking him where 

[Torres de Lopez] was and he never said anything either.” Id. at 120. He soon 

disappeared and, like David, has not been found. 
5 

 In June 2017, a car followed Torres de Lopez into a Denver gas station at 4:30 

a.m. The driver asked her to come over. As she approached, another man got out of 

the car and put a gun to her ribs, saying, “My boss needs you there.” Id. at 122. 

Torres de Lopez recognized his voice; it was the man who had struck her at the lake 

in Camargo. When another car pulled into the gas station, the man returned to his car 

and it drove off. Torres de Lopez did not file a police report for fear of being 

deported. 

 In October 2017, Mexican authorities captured El Tigre, and according to the 

parties, he is currently imprisoned. 

 In 2018, David’s and Jose Enrique’s mother reported to the State Attorney 

General of Chihuahua that since Jose Enrique’s disappearance in 2016, she had been 

receiving death threats. 

Torres de Lopez’s daughter also testified before the IJ. She said that from 

2016 through mid-2018, she lived with her mother. On three occasions, she 

answered the door to find two Hispanic males who spoke only Spanish asking for 

“Teresa,” which is the name by which Torres de Lopez’s friends know her. The first 

time, the men’s car had Mexican license plates. On the second occasion, the men 

were dressed in Mexican cowboy clothes, and judging by their garb, the daughter 

thought they were not Torres de Lopez’s friends. On all three occasions the daughter 

told the men her mother did not live in the United States, and the third pair of men 

left visibly upset. After each of the first two instances, Torres de Lopez left the 

house for a week. The daughter did not tell her about the third instance. 
6 

Torres de Lopez’s daughter and husband each testified that the family cannot 

afford to pay for security for her in Mexico. 

 Torres de Lopez also presented a report and live testimony from cultural 

anthropologist Howard Campbell, Ph.D. His research focuses on Mexican 

drug-trafficking culture, and he has testified in Immigration Court many times. 

Briefly, Dr. Campbell stated that even though El Tigre is now imprisoned, he remains 

powerful, and Torres de Lopez would be in grave danger of being located, tortured, 

and killed if she returns to any location in Mexico. He also stated that criminal 

organizations, like the Juárez and Sinaloa Cartels, operate with the acquiescence of 

all levels of the Mexican government.2

 Although the IJ found Torres de Lopez and the other witnesses credible 

overall, the IJ denied her application for CAT deferral and ordered her removed to 

Mexico. The BIA summarily affirmed without opinion. 

II. Discussion 

Where, as here, the BIA summarily affirms an IJ’s decision without opinion, 

the IJ’s decision is “the final substantive order for our review.” Uanreroro v. 

Gonzales, 443 F.3d 1197, 1203 (10th Cir. 2006). We review an IJ’s legal 

determinations de novo and any factual findings on a claim for CAT relief for 

2

 According to Dr. Campbell, the Sinaloa Cartel “is one of the largest criminal 

organizations in the world,” Admin. R., Vol. I at 164, and the Juárez Cartel, which 

has controlled the drug trade in the state of Chihuahua, a large part of northern 

Mexico, and other parts of Mexico for thirty years, remains “a dominant force,” 

id. at 238. 
7 

substantial evidence. Igiebor v. Barr, 981 F.3d 1123, 1131 (10th Cir. 2020). Under 

that standard, the IJ’s factual findings “are conclusive unless any reasonable 

adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. 

§ 1252(b)(4)(B).3

Noncitizens like Torres de Lopez who are ineligible for withholding of 

removal under the CAT may still be eligible for CAT deferral. See 8 C.F.R. 

§§ 1208.16(c)(4), 1208.17(a). To demonstrate entitlement for CAT deferral, an 

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

tortured if removed to the proposed country of removal.” § 1208.16(c)(2). Torture is 

“any act by which severe pain or suffering, whether physical or mental, is 

intentionally inflicted on a person . . . by, or at the instigation of, or with the consent 

or acquiescence of, a public official or other person acting in an official capacity.” 

Id. § 1208.18(a)(1). “The testimony of the applicant, if credible, may be sufficient to 

sustain the burden of proof without corroboration.” § 1208.16(c)(2). CAT deferral is 

mandatory if an applicant satisfies the CAT’s criteria. See § 1208.16(c)(4) (an 

applicant meeting the CAT’s criteria “shall be granted” CAT withholding or, at a 

minimum, CAT deferral). 

3

 Although Torres de Lopez is removable for committing a crime specified in 

§ 1252(a)(2)(C), we may review her challenges to the IJ’s factual findings 

notwithstanding § 1252(a)(2)(C) and (D), which would otherwise limit our 

jurisdiction to constitutional claims and questions of law. See Nasrallah v. Barr, 

140 S. Ct. 1683, 1694 (2020) (holding that “§ 1252(a)(2)(C) & (D) do not preclude 

judicial review of a noncitizen’s factual challenges to a CAT order”). 
8 

In assessing the likelihood of torture if an applicant returns to the proposed 

country of removal, an IJ must consider (1) “[e]vidence of past torture inflicted upon 

the applicant,” (2) “[e]vidence that the applicant could relocate to a part of the 

country of removal where he or she is not likely to be tortured,” (3) “[e]vidence of 

gross, flagrant or mass violations of human rights within the country of removal,” 

and (4) “[o]ther relevant information regarding conditions in the country of removal.” 

Id. § 1208.16(c)(3). 

The IJ framed the inquiry here as involving five steps: Torres de Lopez had to 

show it is more likely than not that El Tigre or his direct associates4

 would (1) “know 

she ha[d] been removed to Mexico,” (2) “be motivated to find her,” (3) “be able to 

find her,” (4) “torture or kill her” after finding her, and (5) “do all of this with the 

acquiescence or willful blindness of the Mexican government.” Admin. R., Vol. I 

at 58. The IJ then analyzed the first three steps in that framework and determined 

that Torres de Lopez presented nothing more than a series of suppositions about what 

might happen if she is removed to Mexico, and that was insufficient to meet her 

burden. 

As we explain, the evidence compels a contrary conclusion to parts of the IJ’s 

analysis; we are compelled to conclude it is more likely than not that El Tigre would 

be aware if Torres de Lopez is removed to Mexico, and that El Tigre and his direct 

4

 We use the term “direct associates” as the IJ did in her step-three analysis—

to refer to cartel members that El Tigre directs or who are specifically loyal to him, 

as opposed to cartel members as a whole. See Admin. R., Vol. I at 59. 
9 

associates would have both sufficient motivation and ability to locate Torres 

de Lopez anywhere in Mexico. But the evidence does not compel the conclusion that 

the Juárez or Sinaloa cartels have a sufficient institutional motivation to locate Torres 

de Lopez anywhere in Mexico. And the questions that remain are ones the IJ did not 

reach—if El Tigre or his direct associates found Torres de Lopez in Mexico, would 

they inflict any harm on her, would that harm be severe enough to constitute torture 

for CAT purposes, and would Mexican public officials instigate, consent to, or 

acquiesce in such harm? We may not answer those questions in the first instance and 

remand them to the IJ for initial consideration. 

A. Awareness of removal 

At step one of the IJ’s analytical framework,5

 the IJ found Torres de Lopez did 

not show it was more likely than not that El Tigre and his direct associates would be 

aware of her removal to Mexico. The sole reason the IJ gave was Torres de Lopez 

could not show El Tigre or his direct associates provided the anonymous tip that led 

immigration authorities to her in 2018. This finding rests on insubstantial evidence 

and overlooks substantial contrary evidence. First, El Tigre became aware of Torres 

de Lopez’s first removal, in 2005, when within a matter of weeks he confronted her 

at the lake in Camargo. Second, Dr. Campbell testified that “criminal organizations 

and the government overlap and so police, as well as cartel members, use databases, 

5

 For convenience, we frame our discussion by reference to the steps in the IJ’s 

framework. But we do not mean to suggest that these steps are necessarily formal 

elements of any CAT deferral analysis. 
10 

. . . demographic information from the Mexican census, and other sources of 

information to track people viewed as being enemies of cartels all over the country,” 

Admin. R., Vol. I at 168. The IJ did not question this testimony, which suggests El 

Tigre previously discovered Torres de Lopez after her 2005 removal from the United 

states and could through various channels again discover her if she were removed to 

Mexico from the United States.6

 Thus, we are compelled to conclude that it is more 

likely than not that El Tigre or his direct associates would be aware of her removal. 

B. Inclination to pursue, locate, and harm 

At step two of the IJ’s framework, the IJ found Torres de Lopez had not met 

her burden to show it is more likely than not that El Tigre would be inclined to 

pursue her in Mexico. The IJ relied on the fact that the loss of the 64 pounds of 

marijuana occurred sixteen years prior to the hearing, and Dr. Campbell testified that 

such a quantity would be a relatively small loss for a large cartel. But as Torres 

de Lopez observes, these facts are of little consequence because El Tigre and another 

man assaulted her at the lake in Camargo in 2005, and the evidence shows El Tigre 

and his direct associates have kept looking for her up until 2018, when immigration 

authorities caught up with her. This evidence compels the conclusion that the drug 

quantity and passage of time since Torres de Lopez’s arrest have not affected 

El Tigre’s motivation to find Torres de Lopez if she is removed to Mexico. 

6

 Indeed, the record contains no evidence contradicting Torres de Lopez’s 

testimony on this issue. And, the mere passage of time, in this instance, does not 

serve to undermine Torrez de Lopez’s evidence that El Tigre would locate her upon 

her removal to Mexico. 
11 

The IJ also discounted the death of El Pato as a factor motivating El Tigre to 

find Torres de Lopez because Torres de Lopez provided no details of El Pato’s death 

or why El Tigre viewed her as connected to it. But we agree with Torres de Lopez 

that the relevant inquiry is not why El Tigre thinks she is to blame for El Pato’s death 

or whether his belief is correct, but whether he, in fact, blames her. Torres de Lopez 

testified that David told her as much, and the IJ did not question the credibility of 

that testimony. 

For these reasons, we conclude that the evidence compels the conclusion that, 

more likely than not, El Tigre and his direct associates have sufficient motivation to 

pursue Torres de Lopez if she is removed to Mexico. But we cannot say the same 

thing about the cartels’ motivation, which the IJ addressed in her step-three findings. 

We thus turn to those. 

The IJ began her step-three analysis by assuming El Tigre would have 

sufficient motivation to pursue Torres de Lopez and found she failed to show it is 

more likely than not that El Tigre would be able to locate her anywhere in Mexico 

“or even recognize her outside of Chihuahua.” Admin. R., Vol. I at 59. In support, 

the IJ first relied on Dr. Campbell’s testimony that although El Tigre is now 

imprisoned and “continues to wield power, ‘[that] power has been lessened.’” 

Id. (quoting id. at 238). Torres de Lopez claims this conclusion overlooks 

Dr. Campbell’s opinions that (1) although imprisoned, El Tigre remains “very 

powerful,” id. at 165; (2) imprisoned cartel leaders continue to run their cartels from 

prison and have the ability to direct the torture and murder of people deemed a threat 
12 

to cartel interests; (3) Torres de Lopez is viewed as El Tigre’s enemy, so she is of 

interest to both cartels, which remain very active even after his imprisonment; and 

(4) the Sinaloa Cartel poses an “additional risk” to Torres de Lopez,” id. at 238. 

Relatedly, Torres de Lopez faults the IJ’s handling of Dr. Campbell’s testimony that 

through their extensive association with the Mexican government, cartel members 

have access to and use government data on the Mexican population to track people 

they view as enemies. 

The IJ need not “write an exegesis on every contention,” but instead must 

“consider the issues raised, and announce [a] decision in terms sufficient to enable a 

reviewing court to perceive that [the IJ] has heard and thought and not merely 

reacted.” Witjaksono v. Holder, 573 F.3d 968, 978 (10th Cir. 2009) (internal 

quotation marks omitted). And the IJ did that with regard to Dr. Campbell’s 

testimony concerning the cartels’ interest in Torres de Lopez. Earlier in her decision, 

the IJ noted Dr. Campbell’s testimony that Torres de Lopez “is now seen as an enemy 

of El Tigre, who continues to . . . help run his cartel from prison,” and “that criminal 

organizations in Mexico have extensive reach and often work with government 

officials at all different levels.” Admin. R., Vol. I at 58. But the IJ concluded that 

the Sinaloa Cartel lacks interest in Torres de Lopez because “El Tigre and his direct 

associates are the only cartel members with whom [Torres de Lopez] has had direct 

contact, and according to Dr. Campbell, El Tigre took a splinter group and broke off 

from the Juárez Cartel to join the Sinaloa Cartel.” Id. at 59. And the IJ reasoned that 

although testimony about the appearance of men at Torres de Lopez’s house, the 
13 

disappearances of David and Jose Enrique, and articles on the state of Mexican cartel 

violence suggest that Torres de Lopez “would be in danger if she returned to and 

remained in [the state of] Chihuahua,” the lack of evidence “that anyone in the Juárez 

Cartel aside from El Tigre’s men had any interaction with or interest in [Torres 

de Lopez] . . . undermines [her] contention that the cartels would seek to locate her 

anywhere in Mexico.” Id. 

Thus, the IJ adequately took into consideration Dr. Campbell’s opinions 

regarding El Tigre’s post-imprisonment power and the cartels’ interest in Torres 

de Lopez and explained where she disagreed with them. And the evidence does not 

compel a different conclusion regarding the cartels’ lack of interest in Torres 

de Lopez, particularly in view of the lack of evidence that any cartel members other 

than El Tigre and his direct associates have taken any action against Torres de Lopez 

and her family. There is simply insufficient evidence to compel the conclusion that 

the cartels possess institutional motivation to find Torres de Lopez from El Tigre’s 

direction to his direct associates.7

 So for purposes of our analysis, the inquiry 

narrows to whether the evidence compels the conclusion that it is more likely than 

not that an imprisoned El Tigre and his direct associates would be able to locate 

Torres de Lopez anywhere in Mexico. 

7

 We note that Dr. Campbell based his opinion that Torres de Lopez is viewed 

as an enemy of the cartels in part on “her knowledge of cartel operations and crimes.” 

Admin. R., Vol. I at 238. But there is no evidence that she has any knowledge of 

cartel operations or of any cartel crime other than the attempt to have her smuggle 

marijuana into the United States. 
14 

We think it does. As Dr. Campbell explained, criminal organizations have 

close ties to the Mexican government and police and thus access to information about 

Mexican citizens’ whereabouts, and imprisoned cartel leaders retain the ability to 

direct torture and murder. Based on this premise, Dr. Campbell opined that it would 

be difficult for Torres de Lopez to safely relocate outside of Chihuahua. The IJ did 

not doubt Dr. Campbell’s premise but disagreed with his opinion because “Mexico is 

a large country, and [Torres de Lopez] never tried to relocate anywhere in Mexico 

outside the state of Chihuahua.” Id. However, as Torres de Lopez points out, the IJ’s 

reasoning ignores that El Tigre was able to find her in Colorado, which is a 

considerable distance from Chihuahua. Because El Tigre was able to locate Torres 

de Lopez in the United States, and his access to Mexican government information 

enhances his ability to locate her in Mexico, we are compelled, on this record, to 

conclude it is more likely than not that he or his direct associates would be able to 

locate her in Mexico.8

In reaching this conclusion, we agree with Torres de Lopez that the evidence 

does not support the IJ’s finding that “there is reason to believe that if the cartel 

targeted David, his brother, and his mother, it was for reasons unrelated to [Torres 

de Lopez’s] arrest and conviction.” Id. The record evidence instead compels the 

conclusion that El Tigre targeted David, his brother, and their mother because they 

8

 We do not conclude that the ability to relocate in another part of the country 

is not a permissible consideration—only that, on the facts present in this case, 

relocation will not preclude El Tigre from locating Torres de Lopez. 
15 

refused to tell him where Torres de Lopez was. Torres de Lopez testified that David 

was not involved in the drug trade, id. at 134-35, and the IJ did not question the 

credibility of that testimony. And the other evidence points in but one direction— 

that the threats to David, Jose Enrique, and their mother were related to Torres 

de Lopez. In 2005, El Tigre threatened to shoot David if he did not tell El Tigre 

where Torres de Lopez was. A mere three days passed between David’s call to warn 

Torres de Lopez never to return to Mexico because El Tigre was still threatening him 

about her location and David’s disappearance. Jose Enrique also disappeared soon 

after he reported to Torres de Lopez that El Tigre had beaten and threatened him 

about her. And in 2018, after El Tigre had already been captured, their mother 

reported that she, too, was being threatened. 

The government counters that threats are not included in the definition of 

torture. However, the issue is not whether the threats to Torres de Lopez’s family 

members, or even to Torres de Lopez herself, amount to torture, but whether they 

support the likelihood that Torres de Lopez will be tortured if she returns to Mexico. 

They do in this instance. 

The government also relies on Ritonga v. Holder, 633 F.3d 971, 977-79 

(10th Cir. 2011), where we explained that the continued presence of a CAT 

applicant’s family in the country of removal without harm undercuts the likelihood of 

torture. Applying that principle, the government directs our attention to the IJ’s 

finding that although one of Torres de Lopez’s sisters (David and Jose Enrique’s 

mother) has been threatened, her other six siblings continue to live in Mexico without 
16 

threats or harm, including the sister who was with Torres de Lopez when she was 

arrested at the border with the marijuana. But the fact that Torres de Lopez’s other 

siblings have not been threatened or harmed does not detract from the threats and 

serious harms that have occurred to David, Jose Enrique, and their mother. And there 

is no evidence that El Tigre blames the sister who accompanied Torres de Lopez to 

the border for either losing the marijuana or El Pato’s death, so the lack of threats or 

harm to that sister is not a compelling reason to discount the risk to Torres de Lopez. 

Furthermore, we do not think Torres de Lopez must show that none of her family 

members live free of threats or harm; nothing in Ritonga or, as far as we can tell, any 

other precedent of this circuit requires that. 

C. Torture and acquiescence

All this brings us to the fourth and fifth steps in the IJ’s framework—if 

El Tigre or his direct associates find Torres de Lopez, will they harm her and, if so, 

will the harm amount to torture? Again, torture is “any act by which severe pain or 

suffering, whether physical or mental, is intentionally inflicted on a person . . . by, or 

at the instigation of, or with the consent or acquiescence of, a public official or other 

person acting in an official capacity.” 8 C.F.R. § 1208.18(a)(1). The IJ never 

reached whether El Tigre or his direct associates would harm Torres de Lopez if they 

found her in Mexico, the severity of any pain or suffering they might inflict, or 

whether any Mexican public official would instigate, consent to, or acquiesce in any 

such acts. The IJ’s analysis stopped at step three of her framework when she 

concluded that the evidence was insufficient to show that even if El Tigre was still 
17 

interested in Torres de Lopez, he would not be able to locate her outside of the state 

of Chihuahua. As discussed, the evidence compels a contrary step-three conclusion. 

And we cannot take up the analysis that must come next. See Mickeviciute v. INS, 

327 F.3d 1159, 1165 (10th Cir. 2003) (“Because an agency has a duty not only to 

reach an outcome, but to explain that outcome, we intrude on the agency’s authority 

not only by reaching a certain result on the merits . . . , but also by supporting a result 

reached by the agency with reasoning not explicitly relied on by the agency.”). 

Accordingly, we must remand to the agency to conduct the inquiry into the fourth 

and fifth steps in the first instance. 

III. Conclusion 

We grant the petition for review and remand to the agency for further 

proceedings consistent with our decision. 

Entered for the Court 

Joel M. Carson III 

Circuit Judge