FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DELFINA SOTO-SOTO,

Petitioner,

v.

MERRICK B. GARLAND, Attorney 

General,

Respondent.

No. 20-70587

Agency No.

A209-406-355

OPINION

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted January 11, 2021

San Francisco, California

Filed June 11, 2021

Before: J. CLIFFORD WALLACE and MILAN D. 

SMITH, JR., Circuit Judges, and JANE A. RESTANI,*

Judge.

Opinion by Judge Milan D. Smith, Jr.;

Partial Concurrence and Partial Dissent by Judge Wallace

* The Honorable Jane A. Restani, Judge for the United States Court 

of International Trade, sitting by designation.
2 SOTO-SOTO V. GARLAND

SUMMARY**

Immigration

Granting Delfina Soto-Soto’s petition for review of a 

decision of the Board of Immigration Appeals’ reversing an 

immigration judge’s grant of deferral of removal under the 

Convention Against Torture, and remanding for the Board to 

grant CAT relief, the panel held that the Board erred by 

reviewing the IJ’s decision de novo, rather than for clear 

error, and concluded that the record compelled the 

conclusion that Soto-Soto met her burden of proof to 

establish that it is more likely than not that she will suffer 

future torture if removed to Mexico.

Michoacán state police arrested and brutally tortured 

Soto-Soto until she confessed to the kidnapping and murder 

of a five-year old boy. After the Mexican trial court 

dismissed the charges against her as a result of due process 

errors during the investigation, she fled to the United States. 

Mexican prosecutors subsequently conducted a new 

investigation and filed new charges against Soto-Soto, 

INTERPOL put out a Red Notice for her extradition to 

Uruapan in Michoacán, Mexico, which is 67 miles from 

where Soto-Soto was tortured in Morelia, Michoacán. 

Relying on Soto-Soto’s past torture, her reporting of the 

torture to the Michoacán State Commission of Human 

Rights despite warnings not to do so, the reissued arrest 

warrant, and country condition evidence showing that

indigenous women like Soto-Soto are particularly 

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

has been prepared by court staff for the convenience of the reader.
SOTO-SOTO V. GARLAND 3

vulnerable to torture, the IJ held that Soto-Soto was more 

likely than not to be tortured again if removed to Mexico. 

The Board reversed and held that the IJ’s determination was 

clearly erroneous because he did not acknowledge the 

Mexican judicial system’s appropriate steps to correct past 

due process errors, that Soto-Soto was not harmed while in 

custody for eight months after reporting the torture, and that 

members of Soto-Soto’s family remain in Mexico 

unharmed.

The panel concluded that the Board’s decision reflected 

that it engaged in a de novo weighing of the evidence, rather 

than clear error review. The panel explained that the Board 

may find an IJ’s factual finding to be clearly erroneous if it 

is illogical or implausible, or without support in inferences 

that may be drawn from the facts in the record, but in this 

case, the Board failed to explain how the IJ’s decision was 

illogical, implausible, or without support. 

The panel’s majority also concluded that the Board’s 

view of the evidence was not supported by the record. First, 

the majority wrote that the record emphatically did not show 

that the Mexican court took steps to cure the due process 

errors caused by the state police officers torturing a 

confession out of Soto-Soto. Further, the majority wrote that 

even if the record supported the Board’s factual findings, 

that would not be enough to overturn the IJ’s decision under 

clear error review, because the IJ’s predictive finding as to 

the likelihood of torture is entitled to broad deference, which 

the Board failed to provide. Second, the majority wrote that 

because Soto-Soto’s human rights commission complaint 

was not filed until after she was released from custody, and 

nothing in the record suggested that the state police officers 

were aware of her report, Soto-Soto’s physical safety while 

in custody was not probative of the state police officers’ 
4 SOTO-SOTO V. GARLAND

intent to carry out their threat of future torture. Finally, the 

majority wrote that the lack of harm to Soto-Soto’s family 

was irrelevant because threats of such harm hinged on SotoSoto’s return to Mexico, which had not yet occurred. The 

panel also observed that the Board failed to discuss the IJ’s 

other key factual findings, including country condition 

reports establishing that indigenous women are more likely 

to be tortured in Mexico than other groups. 

Reviewed under the proper standard of review, the 

majority concluded that the IJ’s decision was not clearly 

erroneous, and that the record compelled the conclusion that 

Soto-Soto met her burden of proof to establish that it is more 

likely than not that she will suffer future torture if removed 

to Mexico. The majority remanded the petition to the Board 

with the direction to grant deferral of removal.

Concurring in part and dissenting in part, Judge Wallace 

agreed that the Board impermissibly applied de novo review 

in reversing the IJ’s grant of relief. However, Judge Wallace 

wrote that he believes that the IJ erred in the likelihood of 

future torture analysis, and he relatedly disagreed with the 

majority’s and IJ’s conflation of the various Mexican law 

enforcement actors in the state of Michoacán into a unitary 

actor—i.e., the Michoacán state police—in assessing the 

likelihood of torture. Judge Wallace also highlighted that 

the IJ found Soto-Soto was ineligible for asylum and 

withholding of removal because there are serious reasons to 

believe that she did, in fact, kidnap and murder the child 

when his family refused to pay the demanded ransom. Judge 

Wallace believed that her likely guilt should have been 

considered as well because her original criminal case was 

not dismissed due to factual innocence but due process errors 

that have been corrected. Judge Wallace concluded that the 

majority’s direction to the Board to grant CAT relief rather 
SOTO-SOTO V. GARLAND 5

than reversing and remanding the petition to the Board for 

further consideration goes against the court’s ordinary 

practice, especially because the record did not compel the 

conclusion that Soto-Soto satisfied her burden of proof.

COUNSEL

Hector A. Vega-Reyes (argued), Public Defender’s Office,

San Francisco, California, for Petitioner.

Jeff Beelaert (argued) and Virginia Lum, Trial Attorneys; 

Justin Markel, Senior Litigation Counsel; Ethan P. Davis, 

Acting Assistant Attorney General; Office of Immigration 

Litigation, Civil Division, United States Department of 

Justice, Washington, D.C.; for Respondent.

OPINION

M. SMITH, Circuit Judge:

Petitioner Delfina Soto-Soto was brutally tortured by 

Mexican state police until she confessed to the kidnap and 

murder of five-year-old Bernardino Bravo Gomez. After the 

Mexican trial court dismissed the charges against her due to 

lack of evidence of the crimes charged, she fled to the United 

States. Mexican prosecutors subsequently refiled the 

charges against Soto-Soto, INTERPOL put out a Red Notice 

for her extradition to Mexico, and the Department of 

Homeland Security (DHS) placed her in removal 

proceedings. The Immigration Judge (IJ) granted deferral of 

removal under the Convention Against Torture (CAT) based 

on a factual finding that Soto-Soto was more likely than not 

to be tortured again if removed to Mexico. The Board of 
6 SOTO-SOTO V. GARLAND

Immigration Appeals (BIA) reversed the grant of CAT relief 

and ordered Soto-Soto removed. Soto-Soto appealed. We 

vacate the BIA’s order and remand with instructions to grant 

relief.

FACTUAL AND PROCEDURAL BACKGROUND

Delfina Soto-Soto is a 42-year-old indigenous woman 

from Uruapan, a city in the Mexican state of Michoacán. On 

April 20, 2012, Michoacán state police—in plainclothes and 

driving unmarked vehicles—arrested Soto-Soto at her home 

in Uruapan for allegedly kidnapping and murdering 

Bernardino. The police drove her to Morelia, a town 

approximately two hours away from Uruapan. She initially 

denied any involvement in the kidnapping.

Michoacán state police brutalized her for hours. 

According to Soto-Soto’s testimony, the police first grabbed 

her by her hair and threw her to the ground. While she was 

on the ground, they tied her hands behind her back, placed 

her face-up, and kicked her repeatedly. One officer held her 

head between his knees while the others poured water into 

her nose and punched her stomach. The officers then put a 

plastic bag over her head and sat on her stomach so that she 

was unable to breathe, all the while calling her a “fucking 

bitch.”

The torture continued to escalate as Soto-Soto refused to 

admit involvement in the kidnapping. The police officers 

slapped her face, threw her to the ground, tied the plastic bag 

over her head until she was at the point of suffocation, and 

then repeated the sequence for hours. Next, the officers sat 

her in a chair and hit her head against the wall. One officer 

pointed a gun at her head several times, telling her that if she 

did not sign a confession, they would “keep [her] right there 

like a bitch.” Still, with the gun pressed against her forehead, 
SOTO-SOTO V. GARLAND 7

Soto-Soto did not relent. Finally, as relayed in Soto-Soto’s 

testimony, one of the officers told Soto-Soto, “[I]f you don’t 

sign this [confession] in the next 15 minutes, I will give the 

order for them to go get your daughters and bring them here, 

first they will rape them and then they will kill them in front 

of you.” At that point, Soto-Soto signed the confession. The 

officers also told her that she would be tortured again if she 

reported their acts to anyone.

Soto-Soto was held in custody in Uruapan for the next 

eight months and was not tortured again. On December 10, 

2012, the Mexican court dismissed the charges for lack of 

evidence and released Soto-Soto from custody. Upon her 

release, Soto-Soto immediately fled to the United States. On 

December 19, 2012, the Michoacán State Human Rights 

Commission filed a complaint about the torture on SotoSoto’s behalf, but it was dismissed two days later because 

Soto-Soto did not provide an address where she could be 

contacted.

In 2013, the Government renewed its investigation of 

Soto-Soto and secured an arrest warrant after presenting 

testimony of sixteen witnesses to the Mexican trial court. 

Soto-Soto contends that these witnesses’ testimony also 

underlay the first prosecution, and that the witnesses are 

individuals from her village who believe that she is a witch. 

On November 12, 2015, INTERPOL issued a Red Notice for 

Soto-Soto, which called for her return to the state of 

Michoacán. She was taken into custody from her workplace 

in Madera, CA on November 28, 2017.

After a multi-day hearing, the IJ found that Soto-Soto 

was credible and accorded her testimony full evidentiary 

weight. The IJ further held that Soto-Soto was statutorily 

ineligible for asylum, withholding of removal under the 

INA, and withholding of removal under the CAT because 
8 SOTO-SOTO V. GARLAND

the warrant for her arrest in the second investigation 

provided “serious reasons to believe” that she committed a 

“serious nonpolitical crime” before arriving in the United 

States.

The IJ also considered whether Soto-Soto was eligible 

for deferral of removal under CAT, concluding that the 

alleged serious nonpolitical crime did not bar her from this 

remedy. In order to obtain deferral of removal, Soto-Soto 

had the burden to show that it was more likely than not that 

she would be tortured with government involvement or 

acquiescence if removed to Mexico. 8 C.F.R. 

§§ 1208.16(c)(2), 1208.17(a).

In the IJ’s evaluation of the likelihood of future torture, 

the IJ first found that Soto-Soto had suffered torture at the 

hands of Michoacán state police from the Office of AntiKidnapping and Extortions. Based on the reissued arrest 

warrant in the second prosecution, the IJ further found that 

it was more likely than not that Soto-Soto would be stopped 

by authorities upon her return and taken back into custody. 

The IJ noted that country condition evidence for Mexico

documents that indigenous women like Soto-Soto are 

particularly vulnerable to torture. Finally, the IJ determined 

that the fact that Soto-Soto reported the previous torture to 

the Michoacán State Commission of Human Rights also 

makes it more likely that she will be tortured—the state 

police officers specifically threatened her with this. Based 

on these facts, the IJ found that Soto-Soto had satisfied her 

burden to show that she would likely suffer torture with 

government involvement or acquiescence if removed to 

Mexico. The Government appealed.

The BIA reversed the IJ’s grant of deferral of removal 

under CAT. The BIA held that the IJ’s findings were clearly 

erroneous because he did not acknowledge the Mexican 
SOTO-SOTO V. GARLAND 9

judicial system’s appropriate steps to correct past due 

process errors, that Soto-Soto was not harmed while in 

custody for 8 months after reporting the torture, and that 

members of Soto-Soto’s family remain in Mexico 

unharmed.

With respect to the first alleged error, the BIA further 

wrote, “[T]he Immigration Judge clearly erred in finding that 

the Mexican authorities ‘reinitiated the prosecution against 

the Respondent,’ without acknowledging that the Mexican 

judicial system excluded the evidence obtained through 

torture and conducted a new investigation that independently 

resulted in the current charges against the respondent.” 

Furthermore, the BIA stated, “The Immigration Judge 

clearly erred in finding that the respondent’s HRC complaint 

was dismissed on a technicality (IJ at 9); the respondent 

testified that she did not attempt to pursue the claim or 

contact the HRC after she was released and departed the 

country.”1

 For these reasons, the BIA held that the IJ 

committed clear error and reversed the IJ’s grant of CAT 

deferral of removal. Soto-Soto appealed.

On appeal, Soto-Soto contends that—though the BIA’s 

opinion says it reviews the IJ’s finding under the clear error 

standard—the substance of the BIA opinion improperly 

engages in de novo review. We agree.

1 It is undisputed that HRC did not file Soto-Soto’s complaint of 

torture until after she was released from custody, meaning that while 

Soto-Soto was in custody, the state police were not aware that she had 

disclosed the torture.
10 SOTO-SOTO V. GARLAND

STANDARD OF REVIEW

“Whether the BIA has applied the correct standard of 

review is a question of law” that we review de novo. 

Rodriguez v. Holder, 683 F.3d 1164, 1169 (9th Cir. 2012).

ANALYSIS

A.

The parties agree that the BIA ought to have reviewed 

the IJ’s factual findings for clear error. As this court has 

stated:

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, as our sister circuits have 

recognized, and we have no difficulty in 

agreeing with that conclusion. We do not rely 

on the Board’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.

Rodriguez v. Holder, 683 F.3d 1164, 1170 (9th Cir. 2012) 

(citations and footnote omitted).

To determine whether “the BIA faithfully employed the 

clear error standard,” courts look at the BIA’s reasoning for 

reversing the IJ’s decision. Id. “The BIA may find an IJ’s 

factual finding to be clearly erroneous if it is illogical or 

implausible, or without support in inferences that may be 

drawn from the facts in the record.” Id. at 1170 (internal 
SOTO-SOTO V. GARLAND 11

quotation marks omitted). Where the BIA does not address 

the “key factual findings” on which the IJ based its 

conclusion, that strongly suggests that the BIA did not 

faithfully engage in clear error review. Zumel v. Lynch, 

803 F.3d 463, 475, 476 (9th Cir. 2015).

Furthermore, if it appears that the BIA gave more weight 

to certain facts in the record than to others, leading to a 

different conclusion from the IJ, our court may justifiably 

infer that the BIA applied the wrong standard of review. See 

Guerra v. Barr, 974 F.3d 909, 914 (9th Cir. 2020). In 

Guerra, we reversed the BIA for reviewing the IJ’s decision 

de novo, rather than for clear error, reasoning that “the clear 

error standard does not allow the BIA to reweigh the 

evidence when the IJ’s account of the evidence is plausible.” 

Id. (citing Rodriguez, 683 F.3d at 1171). In explaining our 

reasoning, we wrote:

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 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.

Id. at 913–14 (alterations in original). In other words, “[a]n 

appellate court cannot substitute its interpretation of the 
12 SOTO-SOTO V. GARLAND

evidence for that of the trial court simply because the 

reviewing court might give the facts another construction 

[or] resolve the ambiguities differently[.]” Inwood Labs., 

Inc. v. Ives Labs., Inc., 456 U.S. 844, 857–58 (1982) 

(internal quotation marks omitted).

In Soto-Soto’s case, the IJ found: (1) Soto-Soto had 

suffered torture in the past; (2) she would likely be arrested 

if returned to Mexico, putting her back within reach of her 

torturers; (3) her status as an indigenous woman made her 

more likely to be tortured according to the country reports; 

and (4) her report of the torture to the human rights 

commission increased her likelihood of torture.

The BIA disagreed with the IJ’s view of the evidence. 

But its only explanation of why the IJ’s decision was 

illogical, implausible, or without support was that “[the IJ] 

did not acknowledge that ‘the Mexican judicial system took 

appropriate steps to correct any past due process errors 

committed by the officers of the Office of Anti-kidnapping 

and Extortions,’ that the respondent reported the torture and 

was not subsequently harmed or threatened while in custody 

for nearly 8 months, and that other members of her family 

have remained unharmed in Mexico.” The BIA did not 

explain how these alleged errors showed lack of logic, 

plausibility, or support in the record on the part of the IJ. The 

BIA’s reasoning is therefore insufficient to demonstrate that 

the BIA engaged in clear error review. Instead, the BIA’s 

reasoning reflects a de novo weighing of the evidence.

Moreover, the BIA’s view of the evidence lacks support 

in the record. First, the record emphatically does not show 

that the Mexican court took steps to cure the “due process 
SOTO-SOTO V. GARLAND 13

errors”2 caused by the state police officers torturing a 

confession out of Soto-Soto. Instead, the record shows that 

the Mexican court issued “a court order dismissing charges 

. . . for lack of evidence in accordance with the law.” As part 

of its conclusion that the evidence against Soto-Soto was 

insufficient, the Mexican court held that Soto-Soto’s 

confession lacked probative value because “police carried 

out questionings at various domiciles without judicial 

authorization, nor permission from the owners,” and because 

there were “several contradictions regarding . . . the 

confession of the accused[.]” Additionally, the court 

determined that Soto-Soto’s confession lacked probative 

value because she did not have a Purepecha interpreter 

during the questioning. Notably absent from this order is 

any acknowledgment that state police had tortured Soto-Soto 

to obtain her confession, a bar upon her re-prosecution, or 

punishment for the officers who tortured her. The court also 

did not impose safeguards to ensure that the reopened 

investigation would not result in further torture or another 

improper confession. The record therefore contains no facts 

to support the BIA’s finding that the due process errors in 

Soto-Soto’s case were remedied.

Furthermore, even if the record supported the BIA’s 

factual findings, that would not be enough for the BIA to 

overturn the IJ under the clear error standard of review. 

Inwood Labs., Inc., 456 U.S. at 857–58. The IJ’s predictive 

fact finding leading to the holding that Soto-Soto was likely 

to be tortured again upon return to Mexico recognized that 

the second investigation resulted in the issuance of a warrant 

for her arrest. But in its discretion as factfinder, the IJ 

reasoned that this increased her likelihood of torture—rather 

2 Though it strains credulity to call the brutal torture Soto-Soto 

endured a “due process error,” we use the BIA’s terms for consistency.
14 SOTO-SOTO V. GARLAND

than decreasing it—because it meant that Soto-Soto would 

almost certainly end up in the hands of the state police who 

had previously tortured her and had threatened to do so 

again. This type of fact finding—how the facts in the record 

affect the likelihood of future torture—is entitled to broad 

deference from the BIA. See Vitug v. Holder, 723 F.3d 1056, 

1063 (9th Cir. 2013). The BIA’s review of that predictive 

fact finding, however, exhibits no deference to the IJ’s 

decision.

The second reason the BIA gave for reversing the IJ—

that Soto-Soto was unharmed for eight months after 

disclosing the prior torture—is also unmoored from the 

record. The human rights commission complaint was not 

filed until after Soto-Soto was released from custody. 

Nothing in the record suggests that the state police officers, 

who threatened to torture her if she reported the abuse, were 

aware that she had done so. Soto-Soto’s physical safety 

while in custody is therefore not probative of the state police 

officers’ intent to carry out their threat of future torture if 

Soto-Soto reported their past torture.

The BIA’s final point, that Soto-Soto’s family members 

remain unharmed in Mexico, is irrelevant. The current 

threats to Soto-Soto’s family members hinge on whether 

Soto-Soto returns to Mexico. For example, Soto-Soto’s 

daughter, Leonarda Bravo Soto, wrote, “I still receive threats 

that if my mother returns[,] . . . they will take my daughter 

away. . . . [We], her children, do not want her to return to 

the town. . . . We love our mother so much and want her 

alive for many years more.” Because Soto-Soto has not 

returned to Mexico, the current physical safety of her family 

members does not indicate that the threats against them are 

baseless.
SOTO-SOTO V. GARLAND 15

Moreover, the BIA failed to discuss the IJ’s other “key 

factual findings,” specifically that country condition reports 

established that indigenous women are more likely to be 

tortured in Mexico than other groups. See Zumel, 803 F.3d 

at 475, 476. The BIA stated only that “the Mexican 

government has made strident efforts to combat the use of 

torture[.]” In concluding that the government’s “strident 

efforts” to eliminate torture outweighed the country 

conditions report showing that indigenous women are at an 

increased risk of torture, the BIA re-weighed evidence and 

failed to engage in clear error review. Similarly, in 

countering the IJ’s finding that community members had 

credibly threatened Soto-Soto, the BIA wrote that when 

these individuals were actively beating Soto-Soto’s codefendant, “the local police did arrive and intervene to some 

degree[.]” But the local police who arrived testified that they 

did not stop the crowd from beating the co-defendant. The 

BIA’s assertion is, again, both unfounded and reflective of 

an independent weighing of the evidence rather than clear 

error review.

Based on this analysis, the BIA’s decision reflects de 

novo, rather than clear error, review. The BIA therefore 

applied the wrong standard of review, substituting its own 

view of the evidence for the IJ’s.

B.

Reviewed under the proper standard of review, the IJ’s 

factual findings were not clearly erroneous. A court 

“assessing whether it is more likely than not that an applicant 

would be tortured in the proposed country of removal” must 

consider:

(i) Evidence of past torture inflicted 

upon the applicant;
16 SOTO-SOTO V. GARLAND

(ii) Evidence that the applicant could 

relocate to a part of the country of 

removal where he or she is not likely 

to be tortured;

(iii) Evidence of gross, flagrant or mass 

violations of human rights within the 

country of removal, where applicable; 

and

(iv) Other relevant information regarding 

conditions in the country of removal.

8 C.F.R. § 1208.16(c)(3). Of these,

[p]ast torture is ordinarily the principal factor 

on which we rely when an applicant who has 

been previously tortured seeks relief under 

[CAT] because, absent changed 

circumstances, if an individual has been 

tortured and has escaped to another country, 

it is likely that she will be tortured again if 

returned to the site of her prior suffering.

Xochihua-Jaimes v. Barr, 962 F.3d 1175, 1188 (9th Cir. 

2020) (cleaned up).

In accordance with the items listed in 8 C.F.R. 

§ 1208.16(c)(3), the IJ found that the Michoacán state police 

tortured Soto-Soto, and the revived arrest warrant 

guaranteed she would be placed back in custody of the 

Michoacán state police, who previously tortured her, 
SOTO-SOTO V. GARLAND 17

precluding relocation.3 Moreover, the state police officers 

specifically threatened to torture Soto-Soto again if she 

reported their misconduct—which she did.4 Finally, the IJ 

3 Our dissenting colleague believes that we improperly conflate “the 

various Mexican law enforcement actors in the state of Michoacán into 

a unitary actor,” because there is no evidence that the Michoacán Office 

of Anti-Kidnapping and Extortions in the city of Morelia is a 

“component” of the Michoacán police force in the city of Uruapan, 

where Soto-Soto would have been held for trial. We disagree that the 

record lacks such evidence. For instance, the Human Rights 

Commission Complaint filed on Soto-Soto’s behalf states that she was 

tortured by “members of the State Ministry Police of the Office of Antikidnapping and Extortions of the State Attorney General.”

Furthermore, the Anti-Kidnapping Office found Soto-Soto at her 

home in Uruapan and took her to Morelia to brutalize her before she was 

transferred back to Uruapan to be held in prison pending trial. Uruapan 

and Morelia are both in the state of Michoacán. It would be illogical to 

conclude that, although Soto-Soto was not safe from the “State Ministry 

Police of the Office of Anti-kidnapping and Extortions” in her home in 

Uruapan, she would be safe from them in a jail cell there, watched over 

by other state police. Moreover, the BIA never concluded—and the 

Government never argued—that Soto-Soto was ineligible for CAT relief 

because the Michoacán Anti-Kidnapping Office was separate from the 

Michoacán state police. We therefore respectfully disagree with Judge 

Wallace that it would be appropriate for us to base our decision on this 

waived factual issue. See Clem v. Lomeli, 566 F.3d 1177, 1182 (9th Cir. 

2009) (stating that, in general, appellees waive issues that they fail to 

raise in their answering brief); United States v. Dreyer, 804 F.3d 1266, 

1277–78 (9th Cir. 2015) (en banc) (same); Moran v. Screening Pros, 

LLC, 943 F.3d 1175, 1180 (9th Cir. 2019) (same).

4 Our dissenting colleague need not be concerned that our 

disposition of Soto-Soto’s case improperly relies on the dissent in 

Dawson v. Garland, Case No. 19-73142, 2021 WL 2125800 (9th Cir. 

May 26, 2021). Dissent at 23. In Dawson, the majority affirmed the 

denial of CAT relief where the petitioner suffered past torture at the 

hands of her intimate partner before obtaining a protective order that 

stopped the torture because “[t]he inference that future torture is likely 
18 SOTO-SOTO V. GARLAND

considered the country condition reports showing an 

increased threat of torture for indigenous women. The IJ did 

not err, and a proper application of the clear error standard 

of review would have resulted in the BIA affirming the IJ’s 

grant of relief. Indeed, the record compels the conclusion 

that Soto-Soto “met her burden of proof to establish that it is 

more likely than not that she will suffer future torture if 

removed to her native country.” Id. at 1188.

CONCLUSION

Because the record compels the conclusion that SotoSoto carried her evidentiary burden, we GRANT the petition 

and REMAND for the BIA to grant deferral of removal 

pursuant to CAT. Id. (citing Haile v. Holder, 658 F.3d 1122, 

1133 (9th Cir. 2011)).

to recur breaks down where ‘circumstances or conditions have changed 

significantly, not just in general, but with respect to the particular 

individual.’” 2021 WL 2125800, at *6 (quoting Nuru v. Gonzales, 

404 F.3d 1207, 1218 (9th Cir. 2005)). Dawson does not apply to this 

case because—as set forth above—Soto-Soto’s circumstances have not 

significantly changed.

Moreover, the rule that past torture is the principal factor for 

evaluating the likelihood of future torture was established long before 

Dawson. See Xochihua-Jaimes, 962 F.3d at 1188; Avendano-Hernandez 

v. Lynch, 800 F.3d 1072, 1080 (9th Cir. 2015); Nuru, 404 F.3d at 1217–

18. By relying on that rule here, we tread no new or uncertain ground.
SOTO-SOTO V. GARLAND 19

WALLACE, Senior Circuit Judge, concurring in part and 

dissenting in part:

I concur with the majority’s holding limited to the issue 

that the Board of Immigration Appeals (Board) 

impermissibly applied de novo review when it reversed the 

Immigration Judge’s (IJ) grant of relief pursuant to the 

Convention Against Torture (CAT) to Soto-Soto. The 

Board’s use of “clear error” before each respective 

conclusion does not automatically mean it conducted clear 

error review. See Vitug v. Holder, 723 F.3d 1056, 1063 (9th 

Cir. 2013). The Board, instead, reweighed the evidence here 

when it emphasized factors ignored by the IJ rather than 

rejecting reasons relied upon by the IJ as illogical or 

impermissible inferences. See Rodriguez v. Holder, 

683 F.3d 1164, 1170–71 (9th Cir. 2012) (acknowledging the 

Department of Justice’s position that “[a] factfinding may 

not be overturned simply because the Board would have 

weighed the evidence differently or decided the facts 

differently had it been the factfinder”) (alteration in original) 

(citations omitted). This is further evinced by the fact that 

the Board did not discuss the role of Soto-Soto’s status as an 

indigenous woman in its analysis. See Vitug, 723 F.3d at 

1064 (holding that the Board “abuses its discretion where it 

ignores arguments or evidence”). At the most basic level, 

the Board should have conducted a more thorough analysis 

to explain how the IJ’s decision was illogical or not based 

upon permissible inferences from the record to comply with 

the clear error review standard. See Anderson v. Bessemer 

City, 470 U.S. 564, 577 (1985).

Had we gone no further and remanded to the Board for 

reconsideration, I could have joined in the opinion. 

However, the majority decided to add more, resulting in my 

dissent on two grounds. First, while I agree that the Board 
20 SOTO-SOTO V. GARLAND

conducted impermissible de novo review, I nonetheless 

believe the IJ erred in his likelihood of future torture analysis 

when he granted CAT relief. Relatedly, I disagree with the 

majority’s conflation of the various Mexican law 

enforcement actors in the state of Michoacán into a unitary 

actor—i.e., the “Michoacán state police.” See, e.g., Maj. Op. 

at 6. In my opinion, the majority never refers to Soto-Soto’s 

torturers properly because it refers to them as the 

“Michoacán state police,” even though the more accurate 

description, which is used by the Board, is that they were 

members of the Office of Anti-Kidnapping and Extortions in 

Morelia, Michoacán. There is no evidence in the record to 

support the conclusion that the officers from the Office of 

Anti-Kidnapping and Extortions in Morelia are a component 

of the same Michoacán state police force that is in the city of 

Uruapan, where Soto-Soto would have been held for her 

trial. The two cities are 67 miles apart and there is no 

evidence of connection, legal or otherwise, of the police 

units of the two cities.

In my view, the IJ committed the same error during his 

likelihood of future torture analysis when he assumed that 

Soto-Soto would be returned to her torturers stationed at the 

Office of Anti-Kidnapping and Extortions in Morelia, 

Michoacán, despite INTERPOL’s specific direction in the 

Red Notice to return Soto-Soto to the court in Uruapan, 

Michoacán, where she, in fact, safely remained in custody 

for eight months waiting to be tried for the kidnaping and 

murder of a child from her neighborhood when the child’s 

family did not pay the demanded ransom.

Second, I dissent from the majority’s direction to the 

Board to grant CAT relief rather than reversing and 

remanding the petition to the Board for further consideration 

as is our ordinary practice. See Guerra v. Barr, 974 F.3d 
SOTO-SOTO V. GARLAND 21

909, 917 (9th Cir. 2020) (observing that, where the Board 

“failed to apply the proper standard of review, we have 

generally vacated the agency’s decision and remanded for 

the [Board] to apply the appropriate standard of review”); 

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

2006) (reversing and remanding because the Board applied 

the incorrect legal standard).

I.

Even if the issue were properly before us, I would 

disagree with the majority’s decision to grant Soto-Soto’s 

request for CAT relief because I do not believe the evidence 

compels such a conclusion. From my reading of the record, 

the IJ erred in granting CAT relief due to two assumptions 

he made during the likelihood of future torture analysis that 

are neither supported by the record nor qualify as 

permissible inferences. First, the IJ assumed that Soto-Soto 

would be returned to the custody of the officers who tortured 

her in Morelia, Michoacán, despite explicit instructions in 

the Red Notice that Soto-Soto be transferred to authorities in 

Uruapan, Michoacán. As stated earlier, the two cities are 

approximately 67 miles apart. The IJ’s assumption was 

implausible because he ignored that Soto-Soto would have 

been prosecuted in Uruapan, Michoacán, for the new 

criminal charges against her so that she would have been in 

the custody of a separate law enforcement group and under 

the authority of a separate court. Uruapan is a separate 

jurisdiction within the state of Michoacán where, in fact, she 

remained unharmed for eight months awaiting trial, thereby 

proving the implausibility of the IJ’s assumption.

Second, the IJ merged the various law enforcement 

actors involved into the unitary concept of “Mexican 

authorities” rather than the various discrete law enforcement 

authorities throughout the state of Michoacán, i.e., the Office 
22 SOTO-SOTO V. GARLAND

of Anti-Kidnapping and Extortions from Morelia, the 

Michoacán state police in Uruapan, and the judiciary in 

Uruapan. This non-record based unitary law enforcement 

theory muddies the actual factual situation. The IJ made no 

findings that would support such generalizations. We do not 

have the authority to find facts on appeal, and the factual 

issue should be resolved on remand. Cf. Ornelas-Chavez, 

458 F.3d at 1060 (acknowledging that we cannot make 

factual findings and remanding the petition because we 

should not conduct an “independent review of the evidence” 

to determine whether a petitioner is eligible for CAT relief 

when applying the correct legal standard in the first 

instance). The majority repeats this error with its inclusive 

use of “Michoacán state police.”

The majority asserts that this factual issue has been 

waived because it was not raised by the parties; nonetheless, 

an impermissible inference was made by the IJ. Although 

the government did not make this explicit argument, it was 

careful to distinguish between the different law enforcement 

actors throughout the proceedings before the Agency and in 

its answering brief. The Board also acknowledged the 

factual distinction in its decision when it observed that SotoSoto’s torturers were from the Office of Anti-Kidnapping 

and Extortions, as well as highlighted the torture in Morelia 

as opposed to Uruapan.

In addition, the majority’s citation to our decision in 

Clem v. Lomeli, 566 F.3d 1177 (9th Cir. 2009), to support its 

point that this factual distinction issue was waived is 

unavailing because Clem is readily distinguishable from this 

appeal. Clem was a Section 1983 prisoner case, in which 

Clem appealed from an adverse jury verdict and argued that 

the district court gave erroneous jury instructions and that 

the error was not harmless. Clem, 566 F.3d at 1179. We 
SOTO-SOTO V. GARLAND 23

held in Clem that the jury instructions were erroneous. Id.

at 1181–82. We next reasoned that the defendant could not 

overcome the presumption of prejudice because he failed to 

address prejudice in his answering brief. Id. at 1182. The 

majority relies on this point to argue that I should not 

consider the law enforcement distinction point when 

determining that the IJ made an impermissible inference. 

However, the majority forgets that the standard of review is 

different here, and we must consider whether substantial 

evidence supports the IJ’s determination that Soto-Soto is 

entitled to CAT relief in determining whether to remand her 

petition for reconsideration or to grant her request for CAT 

relief. Ultimately, I cannot ignore the IJ’s impermissible 

inference nor the majority’s own factual assumptions to 

reach its conclusion.

Finally, I observe that many of the arguments and 

assumptions the majority makes to support its conclusion 

that Soto-Soto is entitled to CAT relief were rejected by our 

court in a separate, unrelated opinion. See Dawson v. 

Garland, Case No. 19-73124, 2021 WL 2125800 (9th Cir. 

May 26, 2021) (Circuit Judges M. Smith and Ikuta, and 

District Judge Vratil). As I observe in my partial dissent, the 

majority in Dawson reasoned that the petitioner’s individual 

circumstances had changed and the lack of general changes 

in the country should not detract from her personally 

changed circumstances. Id. at *8. The Dawson dissent 

contended that petitioner’s past torture was the “principal 

factor” for evaluating the likelihood of future torture. Id. 

The majority makes a substantially similar argument here, 

with which I disagree.

As to the first point, Soto-Soto carries the burden to 

establish that it is more likely than not that she would be 

tortured if returned to Mexico to be granted CAT relief, in 
24 SOTO-SOTO V. GARLAND

this case deferral of removal. 8 C.F.R. §§ 1208.16(c), 

1208.17(a). Her application should have been reviewed 

under the standards for eligibility set out in section 

1208.16(c)(3). See § 1208.17(a); see also Hamoui v. 

Ashcroft, 389 F.3d 821, 827 (9th Cir. 2004) (holding that 

petitioner must prove there is a “chance greater than fifty 

percent” that they “will be tortured if removed”). While 

“past torture is ordinarily the principal factor on which we 

rely when an applicant who has been previously tortured 

seeks” CAT relief, Xochihua-Jaimes v. Barr, 962 F.3d 1175, 

1188 (9th Cir. 2020) (cleaned up), we must also consider 

whether the circumstances have changed.

Soto-Soto has established her past torture at the hands of 

the Office of Anti-Kidnapping and Extortions in Morelia, 

but there is no evidence in the record that supports imputing 

its conduct to the Michoacán state police in Uruapan, or that 

the separate courts in Uruapan would tolerate such activity. 

Yet the IJ assumed without record citation that the 

Michoacán state police in Uruapan are the same as the Office 

of Anti-Kidnapping and Extortions in Morelia. This was not 

a permissible inference based on the evidence in the record. 

Moreover, I cannot agree with the IJ’s and the majority’s 

refusal to consider the evidence of changed circumstances 

here that mitigate against the likelihood of future torture. I 

believe the Red Notice’s instruction to return Soto-Soto to 

Uruapan is a changed circumstance that shifts the balance 

against Soto-Soto’s claim. She was detained eight months 

in Uruapan, and there is no evidence that any member of the 

Michoacán state police in Uruapan harmed Soto-Soto or 

threatened to harm her. There is also no evidence that the 

Michoacán state police in Uruapan, or the Uruapan court, 

would permit Soto-Soto’s torturers from the Office of AntiKidnapping and Extortions in Morelia to torture her again 

before her trial or that the police in Uruapan would torture 
SOTO-SOTO V. GARLAND 25

Soto-Soto as retribution for reporting her torture by the 

Office of Anti-Kidnapping and Extortions.

Even though Soto-Soto argues that the new criminal 

charges against her are based on the same evidence but 

without her coerced confession, so that she will likely be 

tortured again for a new confession, this argument is pure 

speculation and without support in the record. The argument 

also obscures the fact that the new investigation into the 

child’s kidnapping and murder still found sufficient 

evidence to once again charge Soto-Soto for the crimes, even 

without her coerced confession. The IJ also held that the 

serious, non-political crime bar applied because there are 

serious reasons to believe that Soto-Soto kidnapped and 

murdered the child. It is, therefore, important to emphasize 

that Soto-Soto’s original criminal case was not dismissed 

due to her torture or her factual innocence, but other due 

process errors that the court in Uruapan has corrected.

As to my second point, the record does not support the 

IJ’s assumption that the various police and judiciary actors 

in Michoacán, Mexico are a unitary actor of “Mexican 

authorities”, nor does it support the majority’s similar 

merger of authorities as the “Michoacán state police.” We 

have emphasized the importance of distinguishing between 

local, state, and federal police or countrywide efforts in 

persecution cases. See, e.g., Madrigal v. Holder, 716 F.3d 

499, 510 (9th Cir. 2013). While the circumstances presented 

here are different, I believe the ultimate point rings true that 

we are required to consider which law enforcement group 

was responsible for the torture and whether that group would 

be able to torture her again if she were returned to Mexico.

Yet the majority fails to do so here. My concern is that 

the majority’s holding will lead to the perverse result that 

any victim of torture by law enforcement from one city can 
26 SOTO-SOTO V. GARLAND

essentially claim an omnipresent threat from law 

enforcement throughout that region of the country, 

regardless of individual, ameliorative efforts taken by other 

law enforcement branches in the region. This is particularly 

troubling due to the lack of evidence in this case to support 

such a theory of CAT relief. Indeed, Soto-Soto was ordered 

to be returned to a separate court, 67 miles away from where 

the Office of Anti-Kidnapping and Extortions acted, to be 

tried for the kidnaping and murder of a neighbor’s child. 

There is no evidence that that court in Uruapan would allow 

Soto-Soto’s torture.

II.

Finally, I believe the majority errs by directing the Board 

to grant Soto-Soto CAT relief outright rather than remanding 

her petition to the Board to consider our opinion. Our 

ordinary practice is to remand a petition when the Board 

applied the incorrect standard, as it did here, unless there is 

a special circumstance that requires us to grant the 

underlying relief. See Guerra, 974 F.3d at 916–17. As I do 

not agree with the majority’s conclusion that the evidence 

compels us to grant Soto-Soto CAT relief, I also do not 

believe remanding without requiring further consideration 

by the Board is appropriate here. We should not interfere 

with our usual role as an appellate court to decide factual 

issues. Our usual remand to the Board procedure would 

overcome this mistake.

III.

For these reasons, I concur with the majority’s holding 

that the Board improperly engaged in de novo review and 

dissent from the majority’s failure to remand to the Board 

for reconsideration to determine whether Soto-Soto is 

entitled to CAT relief.