UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

_________________________________

CARLOS E. LOCKWOOD ALVAREZ, 

 Petitioner,

v.

MERRICK B. GARLAND, United States 

Attorney General, 

 Respondent.

No. 20-9502

(Petition for Review)

_________________________________

ORDER AND JUDGMENT*

_________________________________

Before HOLMES, BACHARACH, and EID, Circuit Judges.

_________________________________

In 2018, Carlos E. Lockwood Alvarez, a citizen of Mexico, attempted U.S. 

entry without possessing a valid entry document. The Department of Homeland 

Security charged Lockwood Alvarez with inadmissibility under 8 U.S.C. 

§ 1182(a)(7)(A)(i)(I) and the Immigration Judge (IJ) found clear and convincing 

evidence supporting the charge. Lockwood Alvarez then applied for deferral of 

removal under the Convention Against Torture (CAT). The IJ denied the application

and Lockwood Alvarez appealed the decision to the Board of Immigration Appeals 

(BIA). The BIA found no clear error in the IJ’s denial, concluding that “it is not 

* This order and judgment is not binding precedent, except under the doctrines 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

August 1, 2022

Christopher M. Wolpert

Clerk of Court

Appellate Case: 20-9502 Document: 010110718259 Date Filed: 08/01/2022 Page: 1
2

more likely than not that [Lockwood Alvarez] will experience torture at the hands of 

public officials in Mexico,” and it dismissed the appeal. R. Vol. I at 3.

Lockwood Alvarez now seeks review of the BIA’s decision. He argues, in 

part, that the BIA erred by applying the clear error standard to the IJ’s factual finding 

for the relocation factor under 8 C.F.R. § 1208.16(c)(3)(ii). However, looking 

exclusively to the BIA’s decision, the BIA rested its relocation conclusion on a 

purely factual finding supported by substantial evidence under the proper legal 

standards. Thus, we deny Lockwood Alvarez’s petition for judicial review. We also 

grant Lockwood Alvarez’s motion for leave to proceed in forma pauperis.

I.

In 2011, Lockwood Alvarez, a citizen of Mexico, was removed from the 

United States to Mexico. According to Lockwood Alvarez’s testimony, after his 

removal he was kidnapped and tortured for multiple days in Tijuana, Mexico by 

police officers but escaped. He then relocated to Puerta Vallarta, Mexico where he

was kidnapped and tortured a second time by police officers but again escaped. 

Lockwood Alvarez relocated back to Tijuana where he lived for two years 

without experiencing kidnapping or torture. Working as an electrician, he later 

received a shooting threat from his employer. Following the threat, in 2018, 

Lockwood Alvarez sought U.S. admission at the border in San Ysidro, California,

without a valid entry document. The Department of Homeland Security charged him

with inadmissibility under 8 U.S.C. § 1182(a)(7)(A)(i)(I).

Appellate Case: 20-9502 Document: 010110718259 Date Filed: 08/01/2022 Page: 2
3

The IJ found clear and convincing evidence supporting the charge. Lockwood 

Alvarez then applied for deferral of removal under CAT and the IJ denied his

application. The IJ found that, under 8 C.F.R. § 208.16(c), he had “not demonstrated 

that it is more likely than not that he will be tortured upon return to Mexico.” Id. at 

130. Regarding relocation, the IJ determined:

[Lockwood Alvarez] has not established that relocation is foreclosed. 8 

C.F.R. § 208.16(c)(3). . . . After the second kidnapping, [Lockwood 

Alvarez] was able to move, work, and live without being detained or 

harmed again for at least two years. And . . . [Lockwood Alvarez] 

testified that he encountered authorities after being kidnapped but was 

never asked for money or harmed in any way during these numerous 

contacts, suggesting that he was able to safely relocate. Furthermore, 

[Lockwood Alvarez] left Mexico and traveled to the United States 

because of a dispute with a former employer, wholly unrelated to the 

incidents of past harm.

Id. Ultimately, after weighing the “totality of the independent evidence,” the judge 

found that Lockwood Alvarez had “not demonstrated that it is more likely than not 

that he will be tortured upon return to Mexico.” Id. at 131. 

Lockwood Alvarez appealed the IJ’s decision to the BIA. The decision was 

issued by a single BIA member, “review[ing] the findings of fact . . . under the 

‘clearly erroneous’ standard,” and “review[ing] all other issues, including issues of 

law, discretion, or judgment, under the de novo standard.” Id. at 3. Ultimately, the

BIA found “no clear error in the Immigration Judge’s findings that it is not more 

likely than not that [Lockwood Alvarez] will experience torture at the hands of public 

officials in Mexico.” Id. (citing Matter of Z-Z-0-, 26 I. & N. Dec. 586, 590 (BIA 

2015) (stating “an Immigration Judge’s predictive findings of what may or may not 

Appellate Case: 20-9502 Document: 010110718259 Date Filed: 08/01/2022 Page: 3
4

occur in the future are findings of fact, which are subject to a clearly erroneous 

standard of review”)). In arriving at this conclusion, the BIA weighed several

factors, including the two asserted instances of past torture, the possibility of 

relocation in the past and future, and all country conditions evidence. 

Regarding relocation, the BIA “agreed with the Immigration Judge that 

[Lockwood Alvarez] could avoid future harm by relocating within Mexico” because 

he “was able to move to a different area of Mexico without experiencing physical 

harm for at least two years after the final kidnapping incident.” Id. at 4. The BIA 

did not specifically address whether the IJ’s particular phrasing of its conclusion on 

relocation (“[Lockwood Alvarez] has not established that relocation is foreclosed”) 

changed the analysis. Id. at 130. The BIA subsequently dismissed the appeal. 

Lockwood Alvarez now petitions this court for review of the BIA decision.

II.

We review “the BIA’s legal determinations de novo, and its findings of fact 

under a substantial-evidence standard.” Xue v. Lynch, 846 F.3d 1099, 1104 (10th Cir. 

2017) (quoting Niang v. Gonzales, 422 F.3d 1187, 1196 (10th Cir. 2005)). When a 

single BIA member issues a decision, “we review the [BIA] order as the final agency 

determination and limit our review to the grounds relied upon by the BIA.” Htun v. 

Lynch, 818 F.3d 1111, 1118 (10th Cir. 2016). Of course, “when seeking to 

understand the grounds provided by the BIA, we are not precluded from consulting 

the IJ’s more complete explanation of those same grounds.” Uanreroro v. Gonzales, 

443 F.3d 1197, 1204 (10th Cir. 2006). However, “[a]s long as the BIA decision 

Appellate Case: 20-9502 Document: 010110718259 Date Filed: 08/01/2022 Page: 4
5

contains a discernable substantive discussion, . . . our review extends no further, 

unless it explicitly incorporates or references an expanded version of the same 

reasoning below.” Id.

The BIA reviews the IJ’s findings of fact under the clearly erroneous standard, 

and it reviews all other issues, including those of law, discretion, or judgment, under 

the de novo standard. 8 C.F.R. § 1003.1(d)(3)(i)–(ii). To succeed on a CAT claim, 

an applicant must show “it is more likely than not that he or she would be tortured if 

removed to the proposed country of removal.” Id. § 1208.16(c)(2). In assessing that 

showing, an IJ must consider the totality of circumstances, that is, all evidence 

relevant to the possibility of future torture, including: (1) evidence of past torture; (2) 

evidence that applicant could relocate to a part of the country where he or she will 

not likely be tortured; (3) evidence of gross, flagrant, or mass violations of human 

rights within the proposed country of removal; and (4) other relevant information 

regarding country conditions. Id. § 1208.16(c)(3). 

Lockwood Alvarez asks this court to overturn the BIA’s decision because it 

“affirmed the Immigration Judge’s conclusion, without addressing the Immigration 

Judge’s misapplication of the legal standard” under the relocation factor. Aplt. Br. at 

40. To be clear, we agree that the IJ applied the wrong test when it stated that the 

possibility of relocation must be foreclosed or impossible. See Manning v. Barr, 954

F.3d 477, 488 (2d Cir. 2020) (finding that there is “not . . . a burden on the applicant 

to establish relocation is not possible”); Maldonado v. Lynch, 786 F.3d 1155, 1164 

(9th Cir. 2015) (en banc) (“Section 1208.16(c)(2) does not place a burden on an 

Appellate Case: 20-9502 Document: 010110718259 Date Filed: 08/01/2022 Page: 5
6

applicant to demonstrate that relocation within the proposed country of removal is 

impossible.”); see also Patel v. Att’y Gen., 259 F. App’x 511, 513 (3d Cir. 2007) 

(unpublished) (“There is . . . no need to establish that internal relocation is 

impossible or unreasonable in order to make out a prima facie case for relief under 

the [Convention Against Torture].”). But our review does not extend into the IJ’s

decision because “the BIA decision contain[ed] a discernable substantive discussion”

and gave no reason to look beyond that discussion. Uanreroro, 443 F.3d at 1204. 

Further, and regardless of the IJ’s framing of the relocation standard, the BIA’s 

decision on the relocation factor was based on a purely factual finding supported by 

substantial evidence.

In its decision, the single-member BIA analyzed several factors, including the 

asserted instances of past torture, the possibility of relocation in the past and future, 

and all country conditions evidence. While Lockwood Alvarez claims that unequal, 

even “determinative” weight was placed on the relocation factor, there is no evidence 

of this claim. Aplt. Br. at 39–40. Rather, the BIA properly weighed each factor in its 

analysis of the totality of the circumstances. No factor was considered dispositive. 

The BIA found the relocation factor weighed against Lockwood Alvarez, 

specifically stating that he “could avoid future harm by relocating within Mexico.” 

R. Vol. I at 3. Contrary to Lockwood Alvarez’s contention, the BIA did not require 

proof that relocation would be impossible and it did not state that he failed to show 

relocation was foreclosed; the BIA simply concluded that Lockwood Alvarez “could 

avoid future harm.” Aplt. Br. at 40. Notably, the basis of this conclusion was a 

Appellate Case: 20-9502 Document: 010110718259 Date Filed: 08/01/2022 Page: 6
7

purely factual finding—that Lockwood Alvarez “was able to move to a different area 

of Mexico without experiencing physical harm for at least two years after the final 

kidnapping incident”—which was supported by substantial evidence. R. Vol. I at 4; 

see Uanreroro, 443 F.3d at 1205 (stating that a factual finding meets the substantial 

evidence standard where it is supported by “reasonable, substantial, and probative 

evidence”). Therefore, because the BIA’s conclusion relied on a purely factual 

finding unaffected by any legal standard, we find no error in the BIA’s analysis under

the relocation factor.

The fact that the IJ inaccurately applied the factor to require that relocation 

was impossible does not change our view on whether the BIA erred in its legal 

determination or failed to support its conclusion with substantial evidence. When a 

single BIA member issues a decision, “we review the [BIA] order as the final agency 

determination and limit our review to the grounds relied upon by the BIA.” Htun, 

818 F.3d at 1118. In this case, we would only look to an IJ’s decision “when seeking 

to understand the grounds provided by the BIA.” Uanreroro, 443 F.3d at 1204. But 

here, the terms of the BIA decision provide no reason for us to “consult” the IJ’s 

decision for a “more complete explanation.” Id. The BIA applied the plain language 

of the federal regulations to properly treat the possibility of relocation as one factor 

bearing on the likelihood of torture. See 8 C.F.R. § 1208.16(c)(3). Accordingly, 

considering the BIA’s discernable substantive discussion—applying factual findings 

supported by substantial evidence under the proper legal standards—we do not 

Appellate Case: 20-9502 Document: 010110718259 Date Filed: 08/01/2022 Page: 7
8

extend our review beyond this final agency determination. See Htun, 818 F.3d at 

1118; Uanreroro, 443 F.3d at 1204.

1

In addition to challenging the BIA’s treatment of the relocation factor,

Lockwood Alvarez makes three other arguments for reversal. First, he objects to the 

BIA applying the clear error standard for predictive findings on the likelihood of 

torture. He argues that Matter of R-A-F-, 27 I. & N. Dec. 778, 779 (A.G. 2020),

signals a shift to de novo review of an IJ’s predictions as to future events. But in that 

case, the U.S. Attorney General only confirmed the distinction between predictions 

of future events and characterization of future events as torture: “the immigration 

judge’s prediction as to what would likely happen to the [applicant] if removed may 

have been a factual determination that the [BIA] reviews only for clear error, but

whether that predicted outcome satisfies the regulatory definition of torture . . . 

constitutes a legal judgment subject to de novo review, as it necessarily involves

applying the law to decided facts.” Id. (citations and internal quotations marks 

omitted). Here, the BIA correctly applied this approach as it reviewed the IJ’s

predictions, such as whether Lockwood Alvarez could relocate, under the clear error 

standard, and nothing in the decision shows that the BIA applied any 

characterizations of these predictions outside a de novo standard of review.

Second, Lockwood Alvarez maintains that the BIA erred by applying a burden 

of proof above substantial grounds for evaluating the risk of torture. However, to “be 

1 The dissent does not grapple with the unique standard of review in 

immigration cases. See Uanreroro, 443 F.3d at 1203.

Appellate Case: 20-9502 Document: 010110718259 Date Filed: 08/01/2022 Page: 8
9

entitled to any type of CAT relief, 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.’” Igiebor v. Barr, 981 F.3d 1123, 1128 (10th Cir. 2020) (quoting 8 C.F.R. 

§ 1208.16(c)(2)). Following the proper circuit authority and the federal regulations, 

the BIA applied the correct standard; it did not apply a stricter, mathematical one as 

Lockwood Alvarez submits. 

Third, Lockwood Alvarez declares that the BIA erred by requiring proof of a 

particularized risk of torture. Under governing authority, “pervasive violence in an 

applicant’s country generally is insufficient to demonstrate [that] the applicant is 

more likely than not to be tortured upon returning there.” Escobar-Hernandez v. 

Barr, 940 F.3d 1358, 1362 (10th Cir. 2019); 8 C.F.R. § 1208.17(a) (requiring a 

deferral-of-removal applicant to show that he or she will likely be tortured after 

removal). The BIA here appropriately required Lockwood Alvarez to show that he

would be tortured. As he presented only generalized country conditions, the BIA did 

not err in affirming that Lockwood Alvarez failed to meet his burden to show a 

particularized risk of torture. Matter of W-G-R-, 26 I. & N. Dec. 208, 225–26 (BIA 

2014) (rejecting claim based on chain of assumptions in fear of what might happen, 

rather than evidence that meets the burden of demonstrating it is more likely than not 

that the applicant will be subject to torture).

III.

Lockwood Alvarez also filed a motion for leave to proceed in forma pauperis. 

To proceed in forma pauperis, litigants must show a “reasoned, nonfrivolous 

Appellate Case: 20-9502 Document: 010110718259 Date Filed: 08/01/2022 Page: 9
10

argument on the law and facts in support of the issues raised in the action.” Lister v. 

Dep’t of Treasury, 408 F.3d 1309, 1312 (10th Cir. 2005). As he presented law and 

facts to challenge the BIA’s decision, Lockwood Alvarez’s petition for review is 

nonfrivolous. We therefore grant his motion for leave to proceed in forma pauperis.

IV.

In conclusion, the BIA reviewed this case under the proper legal standards, 

applied factual findings supported by substantial evidence, and did not err in finding 

Lockwood Alvarez failed to establish a reasonable probability of future persecution.

Because the BIA’s relocation conclusion rested on a purely factual finding supported 

by substantial evidence, it was unaffected by the legal standard used by the IJ. Thus, 

we deny Lockwood Alvarez’s petition. We also grant Lockwood Alvarez’s motion 

for leave to proceed in forma pauperis.

Entered for the Court

Allison H. Eid

Circuit Judge

Appellate Case: 20-9502 Document: 010110718259 Date Filed: 08/01/2022 Page: 10
Lockwood Alvarez v. Garland, No. 20-9502

BACHARACH, J., dissenting

I respectfully dissent. Mr. Carlos Lockwood Alvarez is a noncitizen 

subject to removal. But he allegedly fears that removal would subject him 

to torture in Mexico. Given this alleged fear, he invokes a federal 

regulation authorizing deferral of removal for noncitizens who show a 

likelihood of torture. 8 C.F.R. §§ 1208.16(c), 1208.17(a).

In considering whether to defer removal, the immigration judge 

needed to consider multiple factors, including the possibility that Mr. 

Lockwood Alvarez could avoid torture by relocating within the country of 

removal. 8 C.F.R. § 1208.16(c)(3). The immigration judge considered these 

factors and found that Mr. Lockwood Alvarez had not shown a likelihood 

of torture upon removal to Mexico. 

Mr. Lockwood Alvarez challenges this conclusion, arguing in part 

that 

• the immigration judge legally erred by requiring proof that 

relocation would be foreclosed and

• this error should have prevented the Board of Immigration 

Appeals from applying the deferential clear-error standard to 

the immigration judge’s finding on relocation.

I agree with Mr. Lockwood Alvarez.

Appellate Case: 20-9502 Document: 010110718259 Date Filed: 08/01/2022 Page: 11
2

1. Mr. Lockwood Alvarez allegedly suffers torture in Mexico. 

Mr. Lockwood Alvarez is a Mexican citizen who testified that he had 

twice been kidnapped and tortured by Mexican police: the first time in 

Tijuana, the second time in Puerto Vallarta. After these kidnappings, he

briefly lived without incident in a gated community. After leaving that 

community, however, he allegedly faced more threats and harassment.

Fearing a third kidnapping, Mr. Lockwood Alvarez fled to the United 

States and sought deferral of removal under the Convention Against 

Torture. 1

2. The Board orders removal. 

An immigration judge rejected the claim, concluding that Mr. 

Lockwood Alvarez had not shown a likelihood of torture in Mexico. In 

reaching this conclusion, the immigration judge reasoned in part that Mr. 

Lockwood Alvarez had not proven that relocation within Mexico would be 

foreclosed.

He appealed to the Board of Immigration Appeals. In that appeal, the 

Board considered relocation as a factual issue bearing on the likelihood of 

torture. Treating the possibility of relocation as a factual issue, the Board 

concluded that the immigration judge had not clearly erred and adopted her

1 He also requested asylum and withholding of removal, but these 

requests aren’t involved here.

Appellate Case: 20-9502 Document: 010110718259 Date Filed: 08/01/2022 Page: 12
3

factual finding. Given the possibility of relocation, the Board also 

concluded that Mr. Lockwood Alvarez had not proven a likelihood of 

torture. So the Board ordered removal.

3. The Board legally erred by applying the clear-error standard of 

review, rather than de novo review, because the immigration 

judge had based her factual finding on the wrong legal test.

Because the Board issued its own opinion, we review its opinion

rather than the immigration judge’s. Ritonga v. Holder, 633 F.3d 971, 974 

(10th Cir. 2011). Mr. Lockwood Alvarez argues that the Board shouldn’t 

have applied the clear-error standard to the factual findings on relocation 

because the immigration judge had applied the wrong legal test. 2 I agree 

with Mr. Lockwood Alverez. 

As the majority acknowledges, the immigration judge based her 

factual finding on the wrong legal test. Given the immigration judge’s use 

of the wrong legal test, the Board should have conducted de novo review 

rather than use the deferential clear-error standard of review.

2 For example, Mr. Lockwood Alvarez argues in his opening brief:

The Immigration Judge determined that Lockwood “has not 

established that relocation is foreclosed.” On clear error review, 

the [Board of Immigration Appeals] affirmed the Immigration 

Judge’s conclusion, without addressing the Immigration Judge’s 

misapplication of the legal standard.

Appellant’s Opening Br. at 40 (footnotes omitted).

Appellate Case: 20-9502 Document: 010110718259 Date Filed: 08/01/2022 Page: 13
4

A. The immigration judge used the wrong legal test to find that 

relocation wasn’t foreclosed, so the Board should not have 

applied the deferential clear-error standard.

The immigration judge concluded that Mr. Lockwood Alvarez hadn’t 

shown a likelihood of torture upon returning to Mexico. In reaching this 

conclusion, the judge relied mainly on three findings:

1. Mr. Lockwood Alvarez hadn’t established that relocation 

within Mexico would be foreclosed.

2. The evidence of dangerous conditions in Mexico was not 

enough to support Mr. Lockwood Alvarez’s claim that torture 

was more likely than not.

3. He hadn’t shown that he would be personally targeted for 

torture.

In my view, the immigration judge applied the wrong legal test when 

considering the first factor (the possibility of relocation).

Though noncitizens bear the burden of proving a likelihood of 

torture, the immigration judge can assess the proof based on various forms 

of evidence, including the ability to avoid torture by relocating within the 

country of removal. 8 C.F.R. § 1208.16(c)(3)(i)–(iv). But noncitizens may 

satisfy their burden even if it’d be possible to relocate within the country 

of removal. Maldonado v. Lynch, 786 F.3d 1155, 1164 (9th Cir. 2015) (en 

banc).

In the appeal from the immigration judge’s ruling, the Board properly 

described the noncitizen’s burden, treating the possibility of relocation as 

Appellate Case: 20-9502 Document: 010110718259 Date Filed: 08/01/2022 Page: 14
5

simply one factor bearing on the likelihood of torture. But the immigration 

judge had gone further, requiring Mr. Lockwood Alvarez to establish that 

relocation would be foreclosed. Indeed, the majority acknowledges that the 

immigration judge used the wrong legal test by forcing Mr. Lockwood

Alvarez to address relocation and prove that it would be foreclosed. Maj. 

Op. at 5–6; see Manning v. Barr, 954 F.3d 477, 488 (2d Cir. 2020) (stating 

that 8 C.F.R. § 1208.16(c)(3)(ii) “does not mean there is a burden on the 

applicant to establish relocation is not possible”); Maldonado, 786 F.3d at 

1164 (“Section 1208.16(c)(2) [the provision placing the overall burden of 

proof on the petitioner] does not place a burden on an applicant to 

demonstrate that relocation within the proposed country of removal is 

impossible . . . .”); see also Patel v. Att’y Gen. of U.S., 259 F. App’x 511, 

513 (3d Cir. 2007) (unpublished) (“There is . . . no need to establish that 

internal relocation is impossible or unreasonable in order to make out a 

prima facie case for relief under the [Convention Against Torture].”).

Despite the immigration judge’s error, the Board deferred to her

factual finding on relocation by using the deferential clear-error test. In my 

view, the Board erred in deferring to the immigration judge’s factual 

finding despite her use of the wrong legal test. 

The Supreme Court has explained that the clear-error test is based on 

deference to the original fact-finders because of their superior vantage 

point and the inefficiency of relitigating factual issues on appeal. Anderson 

Appellate Case: 20-9502 Document: 010110718259 Date Filed: 08/01/2022 Page: 15
6

v. City of Bessemer City, 470 U.S. 564, 574–75 (1985). The Department of 

Justice adopted this rationale in the immigration context, enacting 

regulations requiring the Board of Immigration Appeals to use the clearerror standard when reviewing an immigration judge’s factual findings. 

Board of Immigration Appeals: Procedural Reforms to Improve Case 

Management 67 Fed. Reg. 54,878, 54,889–90 (Aug. 26, 2002) (codified at 

8 C.F.R. § 1003.1(d)(3)).

Deference to the original fact-finders makes no sense, however, when 

they base their factual findings on the wrong legal test. See Inwood Lab’ys, 

Inc. v. Ives Lab’ys, Inc., 456 U.S. 844, 855 n.15 (1982) (“Of course, if the 

trial court bases its findings upon a mistaken impression of applicable 

legal principles, the reviewing court is not bound by the clearly erroneous 

standard.”); see also Solantic, LLC v. City of Neptune Beach, 410 F.3d 

1250, 1254 (11th Cir. 2005) (stating that application of the clear-error 

standard to a district court’s factual findings is “premised on the 

understanding that ‘[a]pplication of an improper legal standard . . . is 

never within the district court’s discretion’” (quoting Johnson & Johnson 

Vision Care, Inc. v. 1-800 Contacts, Inc., 299 F.3d 1242, 1246 (11th Cir. 

2002))). So we’ve held that “when a lower court’s factual findings are 

premised on improper legal standards . . . , they are not entitled to the 

protection of the clearly erroneous standard, but are subject to de novo 

review.” In re Kretzinger, 103 F.3d 943, 946 (10th Cir. 1996) (quoting In 

Appellate Case: 20-9502 Document: 010110718259 Date Filed: 08/01/2022 Page: 16
7

re Osborn, 24 F.3d 1199, 1203 (10th Cir. 1994), abrogated in part on other 

grounds by Eastman v. Union Pac. R.R., 493 F.3d 1151 (10th Cir. 2007)); 

see also Kabba v. Mukasey, 530 F.3d 1239, 1245 (10th Cir. 2008) (calling 

Kretizinger’s holding “uncontroversial”). Other circuits routinely take the 

same approach, replacing the clear-error standard with de novo review 

when the original fact-finder has premised a factual finding on an incorrect 

application of legal principles. Harrison v. United States, 284 F.3d 293, 

297–98 (1st Cir. 2002); Star Indus., Inc. v. Bacardi & Co., 412 F.3d 373, 

382 (2d Cir. 2005); Sara Lee Corp. v. Kayser-Roth Corp., 81 F.3d 455, 460 

(4th Cir. 1996); Aransas Project v. Shaw, 775 F.3d 641, 658 (5th Cir. 

2014); Lincoln v. Board of Regents, 697 F.2d 928, 942 n.13 (11th Cir. 

1983).

The Board not only deferred to the immigration judge’s factual 

finding under the clear-error standard but also adopted her factual finding 

on the ability to relocate:

Further, we agree with the Immigration Judge that the respondent 

could avoid future harm by relocating within Mexico. “Evidence 

that the applicant could relocate to a part of the country of 

removal where he . . . is not likely to be tortured” is relevant to 

determining that clear probability of future torture. 8 C.F.R. 

§ 1208.16(c)(3)(ii). As the Immigration Judge found, the 

respondent was able to move to a different area of Mexico 

without experiencing physical harm for at least two years after 

the final kidnapping incident (IJ at 9). Therefore, we find no 

clear error in the Immigration Judge’s factual findings with 

regard to internal relocation. 

R. vol. I, at 4.

Appellate Case: 20-9502 Document: 010110718259 Date Filed: 08/01/2022 Page: 17
8

The Board erred by applying the clear-error standard and adopting 

the immigration judge’s factual finding despite her use of the wrong legal 

test. Given the immigration judge’s error, our precedent required the Board 

to conduct de novo review. The majority compounds the Board’s mistake 

by disregarding its deference to a factual finding that had been based on 

the wrong legal test.

B. The Board’s use of the wrong standard of review tainted its 

decision.

The Board’s application of the wrong standard of review requires us 

to remand because we don’t know what the Board would have decided if it 

hadn’t relied on the immigration judge’s factual finding as to relocation.

See, e.g., United States v. Cordery, 656 F.3d 1103, 1108 (10th Cir. 2011) 

(“There is no way for us to know exactly what . . . the court would have 

chosen in the absence of the . . . impermissible factor.”); accord Rafiq v. 

Gonzales, 468 F.3d 165, 167 (2d Cir. 2006) (granting the petition for 

judicial review because the Board of Immigration Appeals didn’t apply the 

correct standard). 

To predict the outcome without the Board’s mistaken use of the 

clear-error standard, we’d consider the account of Mr. Lockwood Alvarez, 

who the immigration judge regarded as generally credible. R. vol. I, at 

124–27. Mr. Lockwood Alvarez testified that after the second kidnapping, 

he had safely moved to a gated community in Tijuana. But he later left the 

Appellate Case: 20-9502 Document: 010110718259 Date Filed: 08/01/2022 Page: 18
9

gated community, explaining that he couldn’t afford to stay there. After

leaving, Mr. Lockwood Alvarez allegedly encountered threats and 

harassment. 

From this evidence, the Board could reasonably infer that Mr. 

Lockwood Alvarez might have difficulty relocating even if relocation were

not foreclosed. This inference could support Mr. Lockwood Alvarez’s 

claim even if he hadn’t shown that relocation would be foreclosed. See

Manning v. Barr, 954 F.3d 477, 488 (2d Cir. 2020) (rejecting the 

immigration judge’s conclusion that the ability to relocate weighed against 

the petitioner when relocation would have required avoidance of any 

familial contact).

Had the Board considered this difficulty in relocating (rather than 

consider only whether relocation had been foreclosed), the Board might 

have come to a different decision when weighing the other evidence 

presented by Mr. Lockwood Alvarez. For example, the Board might have 

put greater weight on the two earlier kidnappings. Or the Board might have 

responded differently to Mr. Lockwood Alvarez’s arguments that he’d be 

targeted again—no matter where he relocated—because of his 

characteristics, including self-identification as an American, lack of 

Spanish fluency, and foreign mannerisms. See Wanjinru v. Holder, 705 

F.3d 258, 266 (7th Cir. 2013) (remanding in part because the noncitizen 

Appellate Case: 20-9502 Document: 010110718259 Date Filed: 08/01/2022 Page: 19
10

“would stick out” if he relocated because he couldn’t speak “the local 

language (at least without an accent)”).

* * *

Because the immigration judge based her factual finding on the 

wrong legal test, the Board should have conducted de novo review on 

relocation rather than use the deferential clear-error standard. Because the 

Board used the wrong standard of review, we have no way of knowing what 

it would have decided under de novo review. So I would vacate the 

decision and remand for the Board to conduct de novo review of the factual 

finding on relocation.

Appellate Case: 20-9502 Document: 010110718259 Date Filed: 08/01/2022 Page: 20