NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

CARLOS EDELMIN SAUCEDA

HERNANDEZ , P etitioner ,

v. WILLIAM P. BARR, Attorney General,

Respondent

. No. 19

- 70658 Agency No. A043

- 563

- 004

MEMORANDUM *

On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted July 14, 2020 San Francisco, California Before: TALLMAN and HUNSAKER, Circuit Judges, and SILVER, * * District Judge.
Carlos Edelmin Sauceda

- Hernandez (“Sauceda”) , a native and citizen of Honduras, petitions for review of the Board of Immigration Appeals ’ (“BIA”)
decision reversing the Immigration Judge’s (“IJ”) granting of deferral of removal

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36

- 3.

** The Honorable Roslyn O. Silver, Senior United States District Judge for the District of Arizona, sitting by designation. 

# FILED

AUG 4 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS2

under the Convention Against Torture (“CAT” ). We have jurisdiction pursuant to 8 U.S.C. § 1252(a) (2)(D) , and we grant the petition.
Sauceda’s sole argument on appeal is that the BIA did not apply the correct
standard of review. “ Whether the BIA applied the correct standard of review to the IJ’s decision is a question of law, and is thus reviewed de novo.” Vitug v. Holder , 723 F.3d 1056, 1062

– 63 (9th Cir. 2013) (citation omitted). Pursuant to the applicable regulations, “the BIA shall not ‘engage in de novo review of findings of fact determined by an immigration judge.’” Ridore v.
Holder , 696 F.3d 907, 911 (9th Cir. 2012) (quoting 8 C.F.R. § 1003.1(d)(3)(i)). Instead, “the BIA may only review the IJ’s factual findings to determine whether they are clearly erroneous.” Guerra v. Barr , 951 F.3d 1128, 1133 (9th Cir. 2020).
A n IJ’s factual finding is clearly erroneous only “ if it is ‘ il logical or implausible, ’
or without ‘ support in inferences that may be drawn from the facts in the record. ’ ” Rodriguez v. Holder , 683 F.3d 1164, 1170 (9th Cir. 2012) (quoting Anderson v. Bessemer City , 470 U.S. 564, 577 (1985))

. The BIA is not entitled t o overturn an IJ’s factual findings “simply because the Board would have weighed the evidence differently or decided the facts differently had it been the factfinder.” Id. at 1171 (quoting Board of Immigration Appeals: Procedural Reforms to Improve Case
M anagement, 67 Fed. Reg. 54,878, 54,889 (Aug. 26, 2002) ). An d an IJ’s factual findings may “include past events, but they are not restricted to historical events.”3

Vitug , 723 F.3d at 1063 (quoting Kaplun v. Att ’ y Gen. , 602 F.3d 260, 269 (3d Cir. 2010)).
Sauceda is a former member of the MS

- 13 gang and has multiple gang related tattoos

. During his immigration proceedings, t he IJ heard from Sauceda , his mother, and an expert witness regarding conditions in Honduras

. The IJ
credited the testimony o f these witnesses and issued a factually detailed written opinion with credibility findings concluding Sauceda “faces a clear probability of
torture in Honduras.” Based on that finding, the IJ granted Sauceda’s application
for deferral of removal under CA T. In reversing the IJ, the BIA claimed it was applying the “clearly erroneous
standard.” But the BIA’s mere recitation of the appropriate standard does not prevent us from examining what standard it actually applied

. See Rodriguez , 683
F.3d at 1170 (“ W e do not rely on the Board’s invocation of the clear error
standard

. ”). Without elaboration, t he BIA determined the threats received by Sauceda and his family , which were credited by the IJ, were “too vague and remote in time to establish that [ he ] is lik ely to be tortured upon his return to Honduras.” But the BIA offered no reasoned explanation as to why the IJ’s conclusion was not supported by permissible inferences from the record . Likewise, the BIA afforded no deference to the IJ’s finding that Sauce da’s tattoos would lead him to be4

tortured , or its determination that the Honduran government would acquiesce in Sauceda’s torture by putting him into a gang

- controlled prison : it simply declared
them erroneous.
While the BIA may disagree with the IJ’ s factual findings , it did not identify facts showing the IJ’s findings were “i llogical, implausible, or not supported by permissible inferences from the record. ” Guerra , 951 F.3d at 1136

. In sum, the BIA did not apply the deferential standard of review it was required to apply. See Zumel v. Lynch , 803 F.3d 463, 476 (9th Cir. 2015) (“The BIA’s failure to evaluate the factual findings of the IJ that were key to the IJ’s holding, indicates the BIA was not re viewing the IJ’s determination for clear
error.” (citation and quotation omitted)). “ Because the BIA applied the wrong legal standard to [ Sauceda’s ] claim, the appropriate relief from this court is remand
for reconsideration under the correct standard. ” Id. at 1137 ( internal quotation
marks and citation omitted ).
PETITION GRANTED AND REMANDED
.