FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JOSE EDUARDO GUERRA,

Petitioner,

v.

WILLIAM P. BARR, Attorney General,

Respondent.

No. 18-71070

Agency No.

A206-351-878

ORDER AND 

AMENDED 

OPINION

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted July 17, 2019

San Francisco, California

Filed March 3, 2020

Amended September 11, 2020

Before: Michael R. Murphy,* Richard A. Paez, and 

Johnnie B. Rawlinson, Circuit Judges.

Order;

Opinion by Judge Paez

* The Honorable Michael R. Murphy, United States Circuit Judge 

for the U.S. Court of Appeals for the Tenth Circuit, sitting by 

designation.
2 GUERRA V. BARR

SUMMARY**

Immigration

The panel filed (1) an order amending its opinion and 

granting the government’s motion for clarification; and 2) an 

amended opinion. In the amended opinion, the panel granted 

a petition for review of the Board of Immigration Appeals’ 

reversal of an immigration judge’s grant of deferral of 

removal under the Convention Against Torture, and 

remanded, holding that the Board erred by conducting a de 

novo review of the IJ’s factual findings, rather than 

reviewing them for clear error, as required by 8 C.F.R. 

§ 1003.1(d)(3)(i).

Petitioner, who suffers from a mental health condition, 

argued that because he had no support system in Mexico, he 

would likely become homeless and end up in the hands of 

either Mexican law enforcement, or a Mexican mental health 

institution, where he would more likely than not be tortured. 

The IJ concluded that petitioner established a clear 

probability of torture and granted CAT relief, but the Board 

reversed.

The panel held that the Board erred by reviewing the IJ’s 

factual findings de novo, rather than for clear error, as 

required by 8 C.F.R. § 1003.1(d)(3)(i). Specifically, the 

panel concluded that in reversing the IJ’s conclusion that 

petitioner had established that Mexican officials would have 

the specific intent to torture him, the Board erred by failing 

** This summary constitutes no part of the opinion of the court. It 

has been prepared by court staff for the convenience of the reader.
GUERRA V. BARR 3

to address the IJ’s key factual findings on which she based 

her conclusion, and by according more weight to country 

conditions evidence which the IJ had considered and found 

unpersuasive. The panel rejected the government’s 

argument, relying on Villegas v. Mukasey, 523 F.3d 984 (9th 

Cir. 2008), that evidence of primitive and abusive practices 

on mental health patients categorically is insufficient to 

support an inference of specific intent to inflict harm. The 

panel also held that in providing an alternative reason why 

harmful practices persist in Mexico mental health 

institutions despite international condemnation, the Board 

appeared to engage in impermissible factfinding in 

concluding that lack of material resources and other 

bureaucratic concerns provide plausible explanations for the 

persistence of problems. Because the Board did not explain 

why the IJ’s findings were illogical, implausible, or not 

supported by permissible inferences from the record, the 

panel held that it had no trouble concluding that the Board 

failed to apply clear error review to the IJ’s finding of 

specific intent.

Similarly, the panel held that the Board failed to engage 

in clear error review in reversing the IJ’s finding that 

petitioner established a clear probability that he would be 

subjected to severe pain or suffering in criminal detention. 

The panel concluded that the Board erred by failing to 

address the IJ’s predicate factual findings, based on 

petitioner’s specific circumstances, that led to the IJ’s 

conclusions. The panel explained that while the Board may 

disagree with the inferences the IJ drew, it cannot disregard 

the IJ’s findings and substitute its own view of the facts. 

Rather, it must either find clear error, explaining why; or, if 

critical facts are missing, remand to the IJ.
4 GUERRA V. BARR

Lastly, the panel held that the Board’s analysis of the 

likelihood of harm was also flawed because it analyzed the 

likelihood of harm by Mexican police and officials in mental 

health institutions separately, rather than considering “the 

aggregate risk” that petitioner faces if removed. 

The panel rejected petitioner’s request for a remand with 

instructions to grant CAT relief, and instead remanded for 

the Board to reconsider its decision applying the correct 

standards.

COUNSEL

Teresa A. Reed Dippo (argued), Munger Tolles & Olson 

LLP, San Francisco, California; Keren Zwick, National 

Immigrant Justice Center, Chicago, Illinois; Elaine J. 

Goldenberg, Munger Tolles & Olson LLP, Washington, 

D.C.; Alison Pennington, Centro Legal de la Raza, Oakland, 

California; for Petitioner.

Linda Y. Cheng (argued) and Madeline Henley, Trial 

Attorneys; Greg D. Mack, Senior Litigation Counsel; Joseph 

H. Hunt, Assistant Attorney General; Office of Immigration 

Litigation, United States Department of Justice,

Washington, D.C.; for Respondent.
GUERRA V. BARR 5

ORDER

The opinion, filed on March 3, 2020, reported at 

951 F.3d 1128, is amended as follows:

On page 8 of the slip opinion, replace <. . . the IJ’s 

determination that it is more likely than not that Guerra faces 

a clear probability of being tortured in criminal detention.> 

with <. . . the IJ’s determination that it is more likely than 

not that Guerra faces a clear probability of enduring severe 

pain or suffering in criminal detention.>.

On page 10 of the slip opinion, replace <Whether 

government officials act with specific intent to torture . . . .> 

with <Whether government officials act with specific intent 

to inflict severe pain or suffering . . . .>.

On page 14 of the slip opinion, replace <In Guerra’s 

case, the IJ made a factual finding on the basis of record 

evidence that there is specific intent to torture, so Villegas

has limited application.> with <In Guerra’s case, the IJ made 

a factual finding on the basis of record evidence that there is 

specific intent to inflict severe pain or suffering, so Villegas

has limited application.>.

On page 15 of the slip opinion, replace <We next turn to 

the IJ’s finding that Guerra is likely to be tortured in criminal 

detention in Mexico.> with <We next turn to the IJ’s finding 

that Guerra is likely to endure severe pain or suffering in 

Mexico.>.

On page 15 of the slip opinion, replace <In other words, 

although the BIA acknowledged there was a possibility that 

Guerra would be subjected to harm amounting to torture as 

a detainee, it concluded that the general possibility of torture 

does not meet the burden of establishing that Guerra 
6 GUERRA V. BARR

individually will be targeted for torture.> with <In other 

words, although the BIA acknowledged there was a 

possibility that Guerra would be subjected to harm

amounting to torture as a detainee, it concluded that the 

general possibility of enduring such harm does not meet the 

burden of establishing that Guerra individually will be 

targeted for such harm.>.

On page 16 of the slip opinion, replace <. . . the IJ 

inferred that Guerra would come into their custody and be 

tortured as others have been in criminal detention.> with 

<. . . the IJ inferred that Guerra would come into their 

custody and endure severe pain or suffering as others have 

in criminal detention.>.

On page 16 of the slip opinion, replace <. . . evidence 

demonstrating that the mentally ill or intellectually disabled 

are specifically targeted for torture . . . .> with <. . . evidence 

demonstrating that the mentally ill or intellectually disabled 

are specifically targeted for the infliction of severe pain or 

suffering . . . .>.

With these changes, the government’s motion for 

clarification (Dkt. 63) is GRANTED. An amended opinion 

is attached and filed concurrently.

OPINION

PAEZ, Circuit Judge:

Jose Eduardo Guerra (“Guerra”), a citizen and national 

of Mexico, petitions for review of an adverse decision by the 

Board of Immigration Appeals (“BIA”). At issue is Guerra’s 

application for deferral of removal under the Convention 
GUERRA V. BARR 7

Against Torture (“CAT”). An Immigration Judge (“IJ”) 

granted Guerra’s application for deferral of removal under 

CAT, but the BIA reversed. Because the BIA did not 

properly review the IJ’s factual findings for clear error, as 

required by 8 C.F.R. § 1003.1(d)(3)(i), we grant the petition 

and remand for further proceedings.

I.

Guerra entered the United States without inspection 

when he was eleven years old to escape severe child abuse, 

neglect, and sexual abuse. After joining his father and 

stepfamily in the United States, Guerra was placed in special 

education classes, was diagnosed with a seizure disorder, 

and started taking anti-seizure medication. Following high 

school, and because he could not live on his own, Guerra was 

placed in a private, single-family dwelling for mentally 

disabled individuals in Bakersfield, California. In late June 

2013, he was arrested for engaging in lewd and lascivious 

acts with a boy in the home.

Guerra was found incompetent to stand trial and was 

referred to a program for evaluation, psychiatric treatment, 

and restoration of competence. In August 2014, he was 

diagnosed with psychosis and began taking antipsychotic 

medication while he underwent treatment to gain trial 

competency. He was deemed competent to stand trial in 

September 2015, shortly after which he pleaded guilty to one 

count of violating California Penal Code § 288(a). The trial 

court sentenced him to three years’ imprisonment. While 

serving his sentence, Guerra started to exhibit 

“bizarre/disruptive behavior” and to experience auditory 

hallucinations. He was taken into immigration custody 

following his incarceration at Wasco State Prison, where he 

was served with an immigration warrant and a notice to 

appear.
8 GUERRA V. BARR

The Department of Homeland Security (“DHS”) charged 

Guerra with removability under 8 U.S.C. § 1182(a)(6)(A)(i) 

(presence in the United States without admission or parole) 

and 8 U.S.C. § 1182(a)(2)(A)(i)(I) (conviction of a crime 

involving moral turpitude). At his first immigration court 

hearing in June 2016, the IJ found, based on a preponderance 

of evidence, that Guerra was incompetent to represent 

himself and ordered appointment of a representative.1

Guerra, through appointed counsel, applied for deferral 

of removal under CAT. He argued that because he had no 

support system in Mexico, he would likely become homeless 

and end up in the hands of either Mexican law enforcement, 

or a Mexican mental health institution. Under either 

scenario, Guerra argued, it was more likely than not that he 

would be tortured. In support of his application, Guerra 

submitted a psychological evaluation and mental health 

records; Mexican court records; letters from his family 

describing his past abuse, lack of support in Mexico, and his 

inability to work or care for himself; and multiple country 

condition reports and news articles about widespread abuse 

of individuals with mental illnesses in Mexican jails and 

mental health facilities. Because Guerra had competency 

issues and was seeking only deferral of removal under CAT, 

1 While in immigration custody, Guerra was informed of his 

membership in the class certified in Franco-Gonzalez v. Napolitano, No. 

10-cv-2211, 2011 WL 11705815 (C.D. Cal. Nov. 21, 2011). Because a 

qualified mental health provider determined that Guerra had a serious 

mental disorder as defined in Franco-Gonzalez—in his case, 

schizophrenia, developmental delay, and intellectual disorder 

dementia—Guerra was entitled to a competency hearing and the 

possibility of appointed counsel, see Franco-Gonzalez v. Holder, 2014 

WL 5475097, at *8 (C.D. Cal. Oct. 29, 2014).
GUERRA V. BARR 9

the IJ granted Guerra’s motion for safeguards and waived his 

testimony.

In August 2017, the IJ issued her decision granting 

Guerra deferral of removal under CAT. The IJ concluded 

that CAT protection was warranted because of Guerra’s 

specific circumstances, which made it more likely than not 

that he would be harmed by police or government officials 

working in psychiatric institutions in Mexico. She also 

relied on the documented conditions in Mexico regarding the 

discrimination against people with disabilities and treatment 

of those in criminal custody and psychiatric institutions that 

qualifies as torture. The IJ also concluded that Guerra could 

not safely and reasonably relocate to avoid torture by police 

or government officials due to the widespread nature of the 

violence.

DHS appealed the IJ’s grant of CAT deferral, which the 

BIA sustained. The BIA disagreed with the IJ’s 

determination that Guerra would be subject to torture in 

either criminal detention or mental health institutions in 

Mexico. Guerra timely petitioned for review of the BIA’s 

vacatur of CAT deferral.

II.

We have jurisdiction to review final orders of removal 

under 8 U.S.C. § 1252(a)(1) and to review CAT claims that 

were denied on the merits. See Pechenkov v. Holder, 

705 F.3d 444, 448 (9th Cir. 2012).

“Where the BIA conducts its own review of the evidence 

and law, rather than adopting the IJ’s decision, our review is 

limited to the BIA’s decision, except to the extent the IJ’s 

opinion is expressly adopted.” Rodriguez v. Holder, 

683 F.3d 1164, 1169 (9th Cir. 2012) (quotations omitted). 
10 GUERRA V. BARR

We review factual findings for substantial evidence and legal 

questions de novo. Ridore v. Holder, 696 F.3d 907, 911 (9th 

Cir. 2012). “Whether the BIA has applied the correct 

standard of review is a question of law.” Id.

III.

Guerra challenges the BIA’s decision on two grounds, 

both of which raise essentially the same issue—whether the 

BIA applied the correct standard when reviewing the IJ’s 

factual findings related to Guerra’s CAT deferral 

application. “The governing regulations explicitly state that 

the BIA shall not ‘engage in de novo review of findings of 

fact determined by an immigration judge.’” Id. (quoting 

8 C.F.R. § 1003.1(d)(3)(i)). Instead, “[f]acts determined by 

the immigration judge, including findings as to the 

credibility of testimony, shall be reviewed only to determine 

whether the findings of the immigration judge are clearly 

erroneous.” 8 C.F.R. § 1003.1(d)(3)(i). “Where the BIA 

engages in de novo review of an IJ’s factual findings instead 

of limiting its review to clear error, it has committed an error 

of law.” Ridore, 696 F.3d at 911 (quoting Rodriguez, 

683 F.3d at 1170). “Further, the BIA may ‘not engage in 

factfinding in the course of deciding appeals.’” Id. (quoting 

8 C.F.R. § 1003.1(d)(3)(iv)).

Guerra argues that the BIA failed to apply clear error 

review in two ways: when rejecting the IJ’s determination 

that Mexican health care workers act with specific intent to 

harm mental health patients, and when rejecting the IJ’s 

determination that it is more likely than not that Guerra faces 

a clear probability of enduring severe pain or suffering in 

criminal detention. We agree with him on both grounds. 

Moreover, we distinguish Guerra’s situation from that in 

Villegas v. Mukasey, 523 F.3d 984 (9th Cir. 2008), for the 

reasons discussed below.
GUERRA V. BARR 11

A.

The essence of Guerra’s CAT application is that he faces 

a more than fifty percent chance of being tortured if removed 

to Mexico because of his particular circumstances and the 

treatment of similarly situated individuals in that country. 

See 8 C.F.R. § 208.16(c)(2). In considering a CAT 

application, the IJ and BIA must consider “all evidence 

relevant to the possibility of future torture,” Cole v. Holder, 

659 F.3d 762, 770 (9th Cir. 2011) (quoting 8 C.F.R. 

§ 1208.16(c)(3)), and must “consider the aggregate risk that 

[the applicant] would face,” id. at 775.

The implementing regulations define torture as “any act 

by which severe pain or suffering, whether physical or 

mental, is intentionally inflicted on a person for such 

purposes as . . . punishing him or her . . . or for any reason 

based on discrimination of any kind . . . [by] or with the 

consent or acquiescence of a public official . . . .” 8 C.F.R. 

§ 208.18(a)(1). “Government acquiescence does not require 

actual knowledge or willful acceptance of torture; awareness 

and willful blindness will suffice.” Aguilar-Ramos v. 

Holder, 594 F.3d 701, 705–06 (9th Cir. 2010). A petitioner 

must show, however, that “severe pain or suffering was 

specifically intended—that is, that the actor intend the actual 

consequences of his conduct, as distinguished from the act 

that causes these consequences.” Villegas, 523 F.3d at 989.

As we have noted, the regulations “preclude [the BIA] 

from reviewing an IJ’s factual findings de novo.” Zumel v. 

Lynch, 803 F.3d 463, 475 (9th Cir. 2015). Under this 

scheme, the BIA may only review the IJ’s factual findings to 

determine whether they are clearly erroneous. Id. Clear 

error review means that “the BIA may not make its own 

findings or rely ‘on its own interpretation of the facts.’” Id.

(citation omitted). Instead, the BIA may find an IJ’s factual 
12 GUERRA V. BARR

finding to be 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, 683 F.3d 

at 1170 (quoting Anderson v. Bessemer City, 470 U.S. 564, 

577 (1985)).2 Importantly, the BIA may not reverse an IJ’s 

finding “simply because it is convinced that it would have 

decided the case differently.” Id. at 1171 (quoting Anderson, 

470 U.S. at 573). “Where there are two permissible views 

of the evidence, the [IJ]’s choice between them cannot be 

clearly erroneous.” Anderson, 470 U.S. at 574.

The government defends the BIA’s decision in this case, 

pointing out how the BIA stated it found clear error no fewer 

than four times in the course of reviewing the IJ’s factual 

findings. We reemphasize that “[w]e do not rely on the 

[BIA]’s invocation of the clear error standard; rather, when 

the issue is raised, our task is to determine whether the BIA 

faithfully employed the clear error standard or engaged in 

improper de novo review of the IJ’s factual findings.” Vitug 

v. Holder, 723 F.3d 1056, 1063 (9th Cir. 2013) (quoting 

Rodriguez, 683 F.3d at 1170) (alteration in Vitug).

B.

First, we consider the BIA’s rejection of the IJ’s finding 

of specific intent to torture by Mexican officials in mental 

health institutions. Whether government officials act with 

specific intent to inflict severe pain or suffering is a question 

of fact that is subject to clear error review. See Ridore, 

696 F.3d at 916–17.

2 The Supreme Court’s decision in Anderson has guided our 

understanding of the clear error standard. See Rodriguez, 683 F.3d 

at 1171; see also United States v. Hinkson, 585 F.3d 1247, 1262 (9th Cir. 

2009) (en banc).
GUERRA V. BARR 13

The IJ found that government officials would 

intentionally inflict harm on Guerra for a proscribed 

purpose. In reaching that conclusion, the IJ made predicate 

factual findings, based on extensive record evidence 

documenting that: (1) individuals like Guerra face 

widespread systemic discrimination on the basis of their 

disabilities; (2) the Mexican government does not enforce 

laws that prohibit discrimination against those with 

disabilities in employment, education, and in the provision 

of services; (3) the Mexican criminal justice system 

frequently denies persons with mental disabilities the right 

to make their own legal decisions and frequently subjects 

them to arbitrary detention during legal proceedings; 

(4) individuals with disabilities are provided health care 

services only within institutions, where they are segregated 

from the rest of the community and have no right to make 

basic daily decisions; and (5) employees of mental health 

institutions carry out actions—including the use of 

permanent physical restraints, physical and sexual abuse, 

and heavy sedation to control the patients’ behavior—that 

qualify as torture under CAT and sometimes cause death.3

The BIA assumed without deciding that Guerra faces a 

likelihood of being institutionalized in a Mexican mental 

health institution. But it rejected the IJ’s finding of specific 

3 As the IJ noted, Guerra submitted extensive documentation of 

country conditions in Mexico. The IJ relied particularly on: the State 

Department’s Mexico 2016 Human Rights Report; a 2013 report from 

the United Nations Special Rapporteur on Torture that focused on 

practices in health care settings; reports from an advocacy group, 

Disability Rights International (“DRI”), documenting their findings in 

Mexico; a New York Times article about DRI’s 2010 report; news articles 

about difficulties faced by deportees, homeless individuals, and those 

with mental illness in Mexico; and reports from Amnesty International, 

Human Rights Watch, and other sources regarding torture in Mexico.
14 GUERRA V. BARR

intent, noting “there is insufficient record evidence from 

which it is reasonable to conclude that health care workers 

implement such [primitive and abusive] practices for the 

specific purpose of inflicting harm on the patients.” Instead, 

the BIA accorded more weight to country reports in the 

record that the extreme measures were taken as a misguided 

effort to prevent patients from harming themselves or others. 

Citing Villegas, 523 F.3d at 989, and Chavarin v. Sessions, 

690 F. App’x 924, 926 (9th Cir. 2017), the BIA also rejected 

Guerra’s argument that specific intent could be inferred from 

the fact that these practices continue to persist despite years 

of condemnation from the international community, 

attributing the persistence of these problems to “the 

difficulties inherent in addressing a complex public policy 

issue with insufficient material resources.” This was not 

clear error review for multiple reasons.

First, “a ‘conclusory pronouncement’ that the IJ has 

erred is insufficient[] . . . .” Zumel, 803 F.3d at 475 (quoting 

Vitug, 723 F.3d at 1063). The BIA failed to “address 

whether the IJ clearly erred in making the key factual 

findings on which she based her conclusion regarding 

[Mexican government officials’] intent,” id. at 476, such as 

the continued patterns of discrimination against individuals 

with disabilities, or the segregation of those individuals from 

the general community. In fact, the BIA did not even 

acknowledge these findings. “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.” Id. (quoting Vitug, 723 F.3d 

at 1064).

The government defends the BIA’s rejection of the 

finding of specific intent by Mexican officials to punish 

patients by arguing that it lacked adequate record support. 
GUERRA V. BARR 15

This is plainly belied by the IJ’s decision and the record. The 

IJ cited various reports from the international advocacy 

group, DRI, which describe the practices in the mental health 

facilities as punishment and torture, and incorporate findings 

by the United Nations Special Rapporteur on Torture that 

treatment such as the use of prolonged restraints and forced 

medication may constitute torture.4

Second, the clear error standard does not allow the BIA 

to reweigh the evidence when the IJ’s account of the 

evidence is plausible. See Rodriguez, 683 F.3d at 1171 

(discussing Anderson, 470 U.S. at 573–74). The IJ 

acknowledged and rejected the alternative explanation that 

mental health officials’ actions can be explained by gross 

negligence and a misunderstanding of the nature of 

psychiatric illness. On appeal, the BIA stated that it 

“accord[ed] more weight to country reports in the record that 

[the IJ] did not find persuasive.” But the BIA cannot reverse 

the IJ’s factual finding “even though [it is] convinced that 

had it been sitting as the trier of fact, it would have weighed 

the evidence differently.” Anderson, 470 U.S. at 574.

The government appears to argue that evidence of 

primitive and abusive practices on mental health patients 

categorically is insufficient to support an inference of 

specific intent to inflict harm, relying heavily on our decision 

in Villegas. This overstates our prior holding. In Villegas, 

the IJ denied CAT relief because he found that the petitioner 

showed no evidence of specific intent to torture, and the BIA 

affirmed that denial. 523 F.3d at 986–87. We agreed with 

4 As an example, one DRI report found that “beatings were a 

common form of punishment used by administrators” at a facility, and 

“individuals who managed to escape were tracked down and forcibly 

returned to the institution where they suffered further punishment.”
16 GUERRA V. BARR

the IJ that a petitioner must show specific intent for purposes 

of CAT relief. Id. at 989. We were not compelled to reverse 

the underlying factual findings because we found nothing in 

the record that indicated specific intent where there was also 

evidence of the Mexican government’s desire to improve 

conditions. Id. at 987–89. In Guerra’s case, the IJ made a 

factual finding on the basis of record evidence that there is 

specific intent to inflict severe pain or suffering, so Villegas

has limited application.5 Critically, the IJ found that Guerra

submitted sufficient evidence to show that he would be 

harmed for a proscribed purpose and explicitly distinguished 

this case from Villegas.

Third, in providing an alternative reason why these 

practices persist in Mexico despite international 

condemnation, the BIA appears to engage in impermissible 

factfinding. See Brezilien v. Holder, 569 F.3d 403, 413 (9th 

Cir. 2009) (“[T]he BIA may not engage in factfinding to 

resolve an appeal . . . .”). While lack of material resources 

and other bureaucratic concerns provide plausible 

explanations for the persistence of problems in Mexican 

mental health institutions, the IJ did not make such a finding. 

Critically, the BIA did not explain why the IJ’s findings were 

illogical, implausible, or not supported by permissible 

inferences from the record. See Rodriguez, 683 F.3d at 1170. 

Thus, we have no trouble concluding that the BIA failed to 

apply clear error review to the IJ’s finding of specific intent.

5 For similar reasons, the government’s reliance on Chavarin, a nonprecedential memorandum, is also unpersuasive because the IJ in that 

case denied CAT deferral and our holding was simply that substantial 

evidence supported the IJ’s finding of no specific intent. See 690 F. 

App’x at 926. Villegas and Chavarin do not support the BIA’s decision 

in this case, where the IJ made different findings on the unique record 

before her.
GUERRA V. BARR 17

C.

We next turn to the IJ’s finding that Guerra is likely to 

endure severe pain or suffering in Mexico. What is likely to 

happen to a petitioner if deported to a certain country is also 

a question of fact that the BIA may reject only for clear error. 

See Ridore, 696 F.3d at 915, 918–19.

In reaching her conclusion, the IJ made predicate factual 

findings including: (1) Guerra’s “abnormal behavior” will 

attract the attention of Mexican police; (2) Guerra will be 

homeless because his family cannot support him from the 

United States; (3) police target for arrest those who are 

homeless and have mental health conditions; and 

(4) Mexican police nationwide torture those whom they 

arrest and detain. In addition to citing the country conditions 

described above, see supra at 13 n.3, the IJ also relied on 

family letters and the psychological evaluation in the record.

The BIA assumed without deciding that Guerra will face 

criminal detention but disagreed with the IJ’s finding that he 

will face a clear probability of being tortured as a result. It 

acknowledged record evidence of harsh conditions in 

Mexican prisons but stated that it “d[id] not find that a 

dysfunctional prison system in itself equates to or requires a 

grant of protection under [CAT] to detainees generally who 

are in the system.” In other words, although the BIA 

acknowledged there was a possibility that Guerra would be 

subjected to harm amounting to torture as a detainee, it 

concluded that the general possibility of enduring such harm 

does not meet the burden of establishing that Guerra 

individually will be targeted for such harm. Again, we hold 

this does not satisfy clear error review.

First, the BIA’s reasoning “misapprehends and thus 

misstates the totality of the IJ’s findings and conclusions.” 
18 GUERRA V. BARR

Ridore, 696 F.3d at 918. Just as in Ridore, “[t]he IJ did not 

find that [Guerra] was likely to be tortured just because there 

were ‘acts of torture in [Mexico]’s prisons.’” Id. In other 

words, the IJ did not simply infer from a finding that torture 

occurs generally in Mexico to a finding that Guerra will 

likely be tortured. Rather, the IJ inferred that Guerra’s 

specific circumstances—namely, his diagnoses for 

schizophrenia and seizure disorder—make him likely to 

attract attention of the police. The IJ also relied on extensive 

letters from Guerra’s family and a psychological evaluation 

to find that he would become homeless because he cannot 

care for himself. Against the backdrop of country condition 

evidence about Mexican police targeting those who are 

homeless and have mental health conditions, the IJ inferred 

that Guerra would come into their custody and endure severe 

pain or suffering as others have in criminal detention. While 

the BIA may disagree with the inferences that the IJ drew, it 

failed to address the IJ’s predicate factual findings and 

simply asserted that Guerra did not meet his burden. See 

Ridore, 696 F.3d at 919. “[T]he BIA cannot disregard the 

IJ’s findings and substitute its own view of the facts. Either 

it must find clear error, explaining why; or, if critical facts 

are missing, it may remand to the IJ.” Id.

Additionally, it is evident that “the BIA failed to grapple 

with the evidentiary record,” id., which includes various 

articles about the vulnerability of certain populations to 

which Guerra belongs, such as three reports discussing how 

people with mental illnesses are discriminated against and 

are at greater risk of abuse in the criminal justice system. 

While the government correctly points out that the IJ did not 

cite any individualized country conditions evidence 

demonstrating that the mentally ill or intellectually disabled 

are specifically targeted for the infliction of severe pain or 

suffering in detention, this was a permissible inference from 
GUERRA V. BARR 19

the record evidence about the discrimination that these 

individuals face in the criminal justice system. It is 

incumbent on the BIA to explain how the IJ’s finding is 

illogical, implausible, or not supported by permissible 

inferences from the record. See Rodriguez, 683 F.3d at 

1170.

Lastly, we note that the BIA’s analysis of the likelihood 

of harm was also flawed because it analyzed the likelihood 

of harm by Mexican police and officials in mental health 

institutions separately. The BIA errs when it does not 

consider “the aggregate risk” that a petitioner faces if 

removed. Cole, 659 F.3d at 775. Guerra “need not prove 

that each group, treated individually, would more likely than 

not torture him.” Id. “Rather, he must establish that, taking 

into account all possible sources of torture, he is more likely 

than not to be tortured, by or with the consent or 

acquiescence of the government, if returned to [Mexico].” 

Id. Thus, “[t]he BIA erred by treating each potential source 

of torture individually, never assessing [Guerra]’s overall 

risk of being tortured.” Id.

D.

Because the BIA applied the wrong legal standard to 

Guerra’s claim, “the appropriate relief from this court is 

remand for reconsideration under the correct standard. . . .” 

Ornelas-Chavez v. Gonzales, 458 F.3d 1052, 1058 (9th Cir. 

2006). Guerra argues that despite this ordinary remand rule, 

we should direct the BIA to grant CAT relief on remand 

because the agency has already fully considered the CAT 

claim and erroneously denied relief based on a misreading 

of the record. The cases Guerra cites, however, are not 

analogous to his situation. See Avendano-Hernandez v. 

Lynch, 800 F.3d 1072, 1075, 1082 (9th Cir. 2015) 

(remanding for grant of relief because BIA’s error 
20 GUERRA V. BARR

constituted a factual confusion over the definition of 

transgender identity, not a legal error involving the standard 

of review); Edu v. Holder, 624 F.3d 1137, 1147 (9th Cir. 

2010) (same where it was uncontested that petitioner was 

tortured in Nigeria for her participation in political activities, 

and the BIA erroneously concluded that she could avoid 

torture by refraining from exercising her political rights).

Unlike in Avendano-Hernandez and Edu, the BIA’s legal 

error here is not isolated to an aspect of Guerra’s CAT claim 

that would lead us to grant relief outright. Where the BIA 

failed to apply the proper standard of review, we have 

generally vacated the agency’s decision and remanded for 

the BIA to apply the appropriate standard of review. See 

Reyes v. Lynch, 842 F.3d 1125, 1142–43 (9th Cir. 2016); 

Zumel, 803 F.3d at 476–77; Ridore, 696 F.3d at 919, 922; 

Rodriguez, 683 F.3d at 1177; Brezilien, 569 F.3d at 414; but 

see Vitug, 723 F.3d at 1064.6

Although we do not remand to grant relief, we do note 

that many facts in Guerra’s case are not in dispute. Cf. 

Estrada-Martinez v. Lynch, 809 F.3d 886, 897–98 (7th Cir. 

2015) (noting undisputed facts). For instance, the BIA did 

6 Guerra’s situation is also distinguishable from Vitug, where we 

decided that remand for reconsideration was unnecessary because there 

was no dispute that petitioner belonged to a protected particular social 

group of gay men from the Philippines, and he was presumed eligible for 

withholding of removal on the basis of a showing of past persecution. 

723 F.3d at 1060, 1064–65. The government failed to rebut that 

presumption, leading us to conclude that “no reasonable factfinder” 

could come to a different conclusion regarding the grant of withholding. 

Id. at 1065–66. Conversely, Guerra has not testified to past instances of 

harm or torture, at least as it relates to his CAT application. See Singh v. 

Whitaker, 914 F.3d 654, 663 (9th Cir. 2019) (“Relevant considerations 

for a CAT claim include evidence of past torture inflicted upon the 

applicant[] . . . .”).
GUERRA V. BARR 21

not question the veracity of evidence about Guerra’s mental 

health conditions and incapacity to take care of himself. The 

IJ found, and the BIA did not challenge, that Guerra will 

likely become homeless in Mexico and attract the attention 

of police or be institutionalized, or both, due to his 

“abnormal behavior,” and that Guerra cannot safely and 

reasonably relocate within Mexico. The IJ found, and the 

BIA agreed, that there is evidence of regressive, primitive, 

and extremely harmful practices in Mexican mental health 

institutions, as well as evidence of harsh conditions and harm 

amounting to torture against detainees in Mexican prisons. 

All these findings appear cogent and well supported by 

evidence in the record. We nonetheless remand this case to 

the BIA to apply clear error review.

IV.

For the reasons set forth above, we grant the petition for 

review, vacate the BIA’s decision, and remand for further 

proceedings consistent with this opinion.

PETITION GRANTED AND REMANDED.