NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CARLOS EDELMIN SAUCEDAHERNANDEZ, 

Petitioner, 

 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 APPEALS
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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). 

An IJ’s factual finding is clearly erroneous only “if it is ‘illogical 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 to 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 

Management, 67 Fed. Reg. 54,878, 54,889 (Aug. 26, 2002)). And an IJ’s factual 

findings may “include past events, but they are not restricted to historical events.” 
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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 gangrelated tattoos. During his immigration proceedings, the IJ heard from Sauceda, 

his mother, and an expert witness regarding conditions in Honduras. The IJ 

credited the testimony of 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 CAT.

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 (“We do not rely on the Board’s invocation of the clear error 

standard.”). 

Without elaboration, the 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 likely 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 Sauceda’s tattoos would lead him to be 
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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 “illogical, 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 reviewing 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.