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. Garl and became Attorney General of the United States. Consequently, his name ha s been substituted fo r William P. Barr as Respondent. See Fed. R. App. P. 43(c)(2).

** After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not ma terially 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 This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cite d, however, for its persuasi ve 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 Court2 Maria Torres de Lopez, a native and citiz en of Mexico, appeals the denial of her application for deferral of removal u nder the United Nations Convention Against Torture (CAT). Exercising jurisdiction under 8 U.S.C. § 1252(a), we grant the petition for review and rema nd 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 marijuan a. She was sentenced to one year plus one day in prison, and she lost her LPR stat us. 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 remova l, 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 offi cer, Torres de Lopez e xpressed a fear of torture if she returns to Mexico, so her matter wa s 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 L opez testified about the basis of her fear of torture if she returns to Mexico. In 2003, she traveled to Juár ez, Mexico to promote a

1 Initially, Torres de Lopez also applied for asylum, statutory withholding of removal, and CAT withholding, but she con ceded that her importation conviction left her eligible only for CAT deferral.3 multilevel marketing business selling nutriti onal 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 w ith party guests. One of the guests she met was Julio Cesar Escar ega 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 missi ng party supplies at a Sam’s Club in nearby El Paso, Texas. El Pato gave her $60, and one of his friends provi ded her with a car. One of Torres de Lopez’s sisters accompan ied her on the drive. At the border, authorities searched the car and found 64 pounds of mar ijuana, which led to her importation conviction and impr isonment. Torres de Lopez told the IJ that she did not know the marijuana was in the car. After her release from pr ison in 2005, Torres de Lopez went to Camargo, Mexico, where one of her sisters lived. Ther e, David informed he r 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 Torre s de Lopez, El Tigre said, “[W]e finally found you,” and called her eithera “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 th e side of the face with a hard metal object, possibly a gun, wh ich left her bleeding and with permanent hearing damage. When her family appro ached, the men fled. She did not file a4 police report because David told her doi ng so would make things worse since El Tigre was connected to the police. After this incident, Torre s de Lopez and David went to his mother’s house in Chihuahua, Mexico. David’s mother is anot her of Torres de Lopez’s siblings. In December 2005, after Torres de Lopez had been at that hous e for two or three weeks, El Tigre and the man who ha d assaulted Torres de Lopez at the lake showed up. Hidden, she listened as El Tigre asked Davi d where she was. El Tigre said he was going to keep looking for her and, by fo rming 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 Davi d, who told her never to return to Mexico “because they were thre atening him asking for [her].” Id. at 119. Three days later, David disappeared. No one knows wh at happened to him. In 2016, David’s brother, Jose Enrique, told Torres de L opez “that he was going through the same thing. That they had beat him and th ey 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 th e 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 capt ured El Tigre, and according to the parties, he is cu rrently imprisoned. In 2018, David’s and Jose Enrique’s mother reported to the State Attorney General of Chihuahua that si nce Jose Enrique’s disappear ance in 2016, she had been receiving death threats. Torres de Lopez’s daughter also testifie d before the IJ. She said that from 2016 through mid-2018, she lived with her mother. On th ree 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 fri ends know her. The first time, the men’s car had Mexi can license plates. On th e 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 fr iends. On all three occasions the daughter told the men her mother did not live in th e United States, and the third pair of men left visibly upset. After each of the fi rst two instances, Torre s 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 secur ity 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 testif ied in Immigration Court many times. Briefly, Dr. Campbell stated that even thou gh 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 st ated that criminal organizations, like the Juárez and Sinaloa Ca rtels, operate with the acquiescence of all levels of the Mexican government. 2 Although the IJ found To rres de Lopez and the ot her witnesses credible overall, the IJ denied her application fo r CAT deferral and ordered her removed to Mexico. The BIA summarily affirmed without opinion.
II. Discussion Where, as here, the BIA summarily affi rms an IJ’s decisi on without opinion, the IJ’s decision is “the final s ubstantive order for our review.” Uanreroro v. Gonzales , 443 F.3d 1197, 1203 (10t h Cir. 2006). We re view an IJ’s legal determinations de novo and any factua l 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., Vo l. 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 th irty years, remains “a dominant force,” id. at 238.7 substantial evidence. Igiebor v. Barr , 981 F.3d 1123, 1131 (10t h Cir. 2020). Under that standard, the IJ’s factual findings “are conclusive unless any reasonable adjudicator would be comp elled to conclude to th e 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 demons trate entitlement fo r CAT deferral, an applicant must “establis h 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 suff ering, whether physi cal 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 o fficial capacity.” Id. § 1208.18(a)(1). “The testimony of the a pplicant, if credible, may be sufficient to sustain the burden of proof w ithout corroboration.” § 1208. 16(c)(2). CAT deferral is mandatory if an applicant sa tisfies 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 removabl e for committing a crime specified in § 1252(a)(2)(C), we may review her ch allenges to the IJ’s factual findings notwithstanding § 1252(a)(2)(C) and (D ), which would otherwise limit our jurisdiction to constitutional cl aims and questions of law. See Nasrallah v. Barr , 140 S. Ct. 1683, 16 94 (2020) (holding that “§ 125 2(a)(2)(C) & (D) do not preclude judicial review of a noncitizen’s fa ctual challenges to a CAT order”).8 In assessing the likelihood of torture if an applicant retu rns to the proposed country of removal, an IJ mu st consider (1) “[e]vidence of past torture inflicted upon the applicant,” (2) “[e]vidence that the a pplicant could relocate to a part of the country of removal where he or she is not li kely to be tortured,” (3) “[e]vidence of gross, flagrant or mass vi olations of human rights with in the country of removal,” and (4) “[o]ther relevant information regard ing conditions in the c ountry of removal.” Id. § 1208.16(c)(3). The IJ framed the inquiry here as involvi ng five steps: To rres de Lopez had to show it is more likely th an not that El Tigre or his direct associates 4 would (1) “know she ha[d] been removed to Me xico,” (2) “be motivated to find her,” (3) “be able to find her,” (4) “torture or kill her” after fi nding her, and (5) “do all of this with the acquiescence or willful blindness of the Me xican government.” Admin. R., Vol. I at 58. The IJ then analyzed the first three st eps 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 insuffi cient to meet her burden. As we explain, the evidence compels a c ontrary 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 th at El Tigre and his direct

4 We use the term “direct as sociates” as the IJ did in her step-three analysis— to refer to cartel members that El Tigre di rects or who are specifi cally loyal to him, as opposed to cartel me mbers as a whole. See Admin. R., Vol. I at 59.9 associates would have bot h sufficient motivation and ability to locate Torres de Lopez anywhere in Mexico. But the ev idence does not compel the conclusion that the Juárez or Sinaloa cartels have a sufficient instituti onal motivation to locate Torres de Lopez anywhere in Mexico. And the quest ions that remain are ones the IJ did not reach—if El Tigre or his dir ect 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 fo r 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 as sociates provided the anonymous tip that led immigration authorities to her in 2018. This finding rests on in substantial evidence and overlooks substan tial contrary evidence. First, El Tigre became aware of Torres de Lopez’s first removal, in 2005, when with in a matter of weeks he confronted her at the lake in Camargo. Second, Dr. Cam pbell 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 ar e 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 bei ng 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 vari ous channels again discover he r 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 pur sue, locate, and harm At step two of the IJ’s framework, th e IJ found Torres de Lopez had not met her burden to show it is more likely than not that El Ti gre would be inclined to pursue her in Mexico. The IJ relied on the fact that the loss of the 64 pounds of marijuana occurred sixt een years prior to th e hearing, and Dr. Campbell testified that such a quantity would be a relatively sma ll loss for a large cartel. But as Torres de Lopez observes, these fact s 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 ha ve 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 evid ence contradicting Torres de Lopez’s testimony on this issue. And, the mere pa ssage of time, in th is 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 Pa to as a factor motiv ating El Tigre to find Torres de Lopez because Torres de Lop ez 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 th e evidence compels the conclusion that, more likely than not, El Tigre and his direct associates have su fficient motivation to pursue Torres de Lopez if she is removed to Mexico. But we cannot say the same thing about the cartels’ motiva tion, which the IJ addressed in her step-three findings. We thus turn to those. The IJ began her step-three analysis by assuming El Ti gre would have sufficient motivation to pursu e 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 al though El Tigre is now imprisoned and “continues to wield power, ‘[that] power has been lessened.’” Id. (quoting id. at 238). Torres de Lopez clai ms this conclusion overlooks Dr. Campbell’s opinions that (1) althoug h imprisoned, El Ti gre 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 threat12 to cartel interests; (3 ) Torres de Lopez is viewed as El Tigre’s enemy, so she is of interest to both cartels, wh ich remain very active even after his imprisonment; and (4) the Sinaloa Cartel poses an “a dditional risk” to Torres de Lopez,” id. at 238. Relatedly, Torres de Lopez fa ults 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 su fficient 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 di d 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 To rres de Lopez “is now seen as an enemy of El Tigre, who continues to . . . help r un 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 jo in the Sinaloa Cartel.” Id. at 59. And the IJ reasoned that although testimony about the appearance of men at Torres de Lopez’s house, the13 disappearances of David and Jose Enrique, and articles on the stat e of Mexican cartel violence suggest that Torres de Lopez “would be in dange r 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 po wer and the cartels’ interest in Torres de Lopez and explained where she disagree d with them. And the evidence does not compel a different conclusion regarding th e 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 insuffici ent evidence to compel the conclusion that the cartels possess in stitutional motivation to find To rres de Lopez from El Tigre’s direction to his direct associates. 7 So for purposes of our analysis, the inquiry narrows to whether the evid ence compels the conclusion th at it is more likely than not that an imprisoned El Ti gre and his direct associates would be able to locate Torres de Lopez anywhere in Mexico.

7 We note that Dr. Campbell based his opi nion that Torres de Lopez is viewed as an enemy of the ca rtels 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 othe r than the attempt to have her smuggle marijuana into the United States.14 We think it does. As Dr. Campbell e xplained, criminal organizations have close ties to the Mexican government and po lice and thus access to information about Mexican citizens’ whereabouts, and imprisoned cartel leader s 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 disagr eed with his opinion because “Mexico is a large country, and [Torres de Lopez] neve r tried to relocate an ywhere 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. B ecause El Tigre was ab le 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 associat es would be able to locate her in Mexico. 8 In reaching this conclusion, we agree with Torres de Lop ez that the evidence does not support the IJ’s findi ng that “there is reason to believe that if the cartel targeted David, his brother, and his moth er, it was for reasons unrelated to [Torres de Lopez’s] arrest and conviction.” Id. The record eviden ce 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 pres ent in this case, relocation will not preclude El Tigr e from locating Torres de Lopez.15 refused to tell him where To rres 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 ot her 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 be tween David’s call to warn Torres de Lopez never to retu rn to Mexico because El Ti gre 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 captu red, their mother reported that she, too, was being threatened. The government counters that threats are not included in the definition of torture. However, the issu e 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 w ill 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 con tinued presence of a CAT applicant’s family in the country of rem oval without harm undercuts the likelihood of torture. Applying that principle, the gove rnment directs our attention to the IJ’s finding that although one of Torres de Lo pez’s sisters (David and Jose Enrique’s mother) has been threatened, her other six si blings continue to live in Mexico without16 threats or harm, including the sister who was with Torres de Lopez when she was arrested at the border with th e marijuana. But the fact that Torres de Lopez’s other siblings have not been threatened or ha rmed does not detract from the threats and serious harms that have occurred to David, Jose Enrique, and thei r mother. And there is no evidence that El Tigre blames the si ster 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 th e risk to Torres de Lopez. Furthermore, we do not think Torres de Lop ez 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 associ ates find Torres de Lopez, will they harm her and, if so, will the harm amount to torture? Again, to rture is “any act by wh ich severe pain or suffering, whether physical or mental, is in tentionally 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. § 120 8.18(a)(1). The IJ never reached whether El Tigre or his direct asso ciates would harm Torre s 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 wa s insufficient to show that even if El Tigre was still17 interested in Torres de Lopez, he would not be able to lo cate her outside of the state of Chihuahua. As discusse d, the evidence compels a cont rary step-three conclusion. And we cannot take up the anal ysis that must come next. See Mickeviciute v. INS , 327 F.3d 1159, 1165 (10th Cir. 2003) (“Because an agen cy has a duty not only to reach an outcome, but to explain that out come, we intrude on th e agency’s authority not only by reaching a certain result on the meri ts . . . , 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