PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

______________

No. 20-3300

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JULIANA MARTIREZ ARREAGA BRAVO,

Petitioner

v.

ATTORNEY GENERAL UNITED STATES OF AMERICA

______________

On Petition for Review of a Decision

And Order of the Board of Immigration Appeals

(BIA-1: A209-004-970)

Immigration Judge: Dinesh C. Verma

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Submitted Under Third Circuit L.A.R. 34.1(a)

July 13, 2021

Before: MCKEE, GREENAWAY, JR., and RESTREPO, 

Circuit Judges

(Filed: March 2, 2022)
2

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OPINION

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Brett A. Tarver

Troutman Pepper

600 Peachtree Street, N.E.

Suite 2500, Bank of America Plaza

Atlanta, GA 30308 

Anthony C. Vale 

Troutman Pepper Hamilton Sanders

3000 Two Logan Square

18th and Arch Streets

Philadelphia, PA 19103

Attorneys for Petitioner

Merrick Garland, Attorney General

Lindsay Marshall

Jeffrey R. Meyer 

United States Department of Justice

Office of Immigration Litigation

P.O. Box 878

Ben Franklin Station

Washington, DC 20044

Attorneys for Respondent
3

GREENAWAY, JR., Circuit Judge.

When an Immigration Judge (“IJ”) makes findings of 

fact in relation to an individual’s petition for relief under the 

Convention Against Torture (“CAT”), the Board of 

Immigration Appeals (“BIA”), in reviewing the IJ’s decision, 

must defer to the IJ’s factual findings unless they are clearly 

erroneous. 

Here, the IJ held that Petitioner Juliana Martirez

Arreaga-Bravo demonstrated that she will more likely than 

not experience torture if she returns to Guatemala, and that 

the Guatemalan government would acquiesce in such torture. 

The IJ thus granted her application for CAT relief and 

ordered withholding of removal. The Department of 

Homeland Security appealed, and the BIA reversed—

instituting a removal order. In coming to its conclusion, the 

BIA explained that it was not “sufficiently persuade[d]” that 

Arreaga-Bravo faces a particularized risk of torture and that it 
4

was “unable to agree” with the IJ’s conclusions. A.R. 5. 

Rather than defer to the IJ’s factual findings and review for 

clear error, the BIA inserted itself into the factfinder role and 

disagreed with the IJ’s weighing of the evidence. This was 

error. As a result, we will vacate the BIA’s final order of 

removal and remand for further proceedings consistent with 

this opinion.

I. BACKGROUND

Arreaga-Bravo is a thirty-one-year-old woman from 

Tacana, Guatemala. She arrived in the United States in May

2016. Shortly after entering the country, the Department of 

Homeland Security began removal proceedings by issuing a 

Notice to Appear (“NTA”). At a Master Calendar hearing in 

December 2016, Arreaga-Bravo admitted to the factual 

allegations in the NTA. In May 2017, she applied for asylum 

and withholding of removal under CAT. 
5

Arreaga-Bravo claimed that she had fled Guatemala to 

escape harassment and sexual violence by the Mara 18 gang. 

She testified that violence against women is prevalent in 

Guatemala. To support this claim, she discussed the rape of 

her older sister, who was fifteen years old at the time of the 

incident. Arreaga-Bravo noted the rape was not reported to 

the police because the nearest police station was four hours 

away. After the incident, Arreaga-Bravo’s family moved to a 

town called Amorisan. Arreaga-Bravo alleged that after 

moving, her youngest sister was raped by a man. ArreagaBravo stated that there was a police report filed, but the police 

never investigated the complaint further or arrested the man 

for rape. Arreaga-Bravo also alleged that the rapist’s mother 

offered her family a bribe, which the family turned down and 

also reported to the police.

Arreaga-Bravo explained that after the incident with 

her younger sister, her family once again moved, this time, to 
6

a town called Malacatan. Arreaga-Bravo stated that while 

living in Malacatan, she worked in Talisman, a dangerous 

town near the Mexican border. In her amended affidavit, 

Arreaga-Bravo detailed an event in which a friend in 

Talisman was raped by multiple men while working.

As for her own experiences, Arreaga-Bravo discussed 

an event in which a man came inside her store and asked how 

much it would cost to sleep with her. She alleged that in 

early 2016, she was targeted by Mara 18 gang members to be 

enlisted to become a gang member’s girlfriend. ArreagaBravo refused and from that point she began to receive 

threatening messages. Arreaga-Bravo was told that 

eventually she would have to capitulate to the gang’s 

demands. The harassment against her escalated until one day,

two men grabbed her on the street, pulled out a knife, and 

threatened to kill her unless she surrendered to the gang. 

Arreaga-Bravo described this event as the impetus for her 
7

fleeing to the United States. She testified that she did not 

relocate within the country because she felt that the Mara 18 

gang would threaten her wherever she lived and that if she

returned to Guatemala, gang members would find her and kill 

her. 

In April 2018, the IJ issued a thorough and wellreasoned twenty-four-page decision. The IJ found that 

Arreaga-Bravo was generally credible, candid, and 

forthcoming. As for Arreaga-Bravo’s claim for asylum, the IJ 

found that she had not established past persecution or wellfounded fear of future persecution because her proposed 

social groups—“Guatemalan women,” “Young Guatemalan 

females,” and “Guatemalan females subjected to gang 

recruitment who refuse such recruitment”—did not qualify as 

particular social groups sufficient to obtain relief. The IJ 

explained that Arreaga-Bravo’s complaints of harassment did 

not rise to the level of past persecution because the 
8

harassment was not “imminent, concrete and menacing” as to 

cause actual harm. A.R. 76 (quoting Chavarria v. Gonzalez, 

446 F.3d 508, 518 (3d Cir. 2006)).

But as for her withholding of removal claim under 

CAT, the IJ found that it is more likely than not that ArreagaBravo will be harmed if she returns to Guatemala. The IJ 

assessed that based on the evidence—including events 

experienced by Arreaga-Bravo, her sisters, and friend, and a 

country conditions report outlining that Guatemala has the 

third highest rate of femicide in the world—Arreaga-Bravo 

was vulnerable and would more likely than not be raped or 

killed in Guatemala.

The IJ further found that, based on evidence presented, 

the Guatemalan government would acquiesce in ArreagaBravo’s torture. The IJ explained that evidence presented—

including the police not filing charges against her younger 

sister’s rapist and country conditions evidence showing that 
9

the Guatemalan government cannot control violence against 

women—was enough to establish the government would

acquiesce in the torture of Arreaga-Bravo. The IJ noted that 

while the Guatemalan government has passed a law to combat 

violence against women, the law is not fully prosecuted, and 

did not preclude the finding that the government would still

acquiesce to torture. Accordingly, the IJ granted ArreagaBravo’s application for CAT relief.

The Government appealed the IJ’s decision. Before 

reviewing the IJ’s findings, the BIA acknowledged that it was

reviewing findings of fact for clear error, including any 

credibility determinations, and reviewing de novo all other 

issues. The BIA found that Arreaga-Bravo had not 

established eligibility for protection under CAT, concluding 

that the record did not support that it was more likely than not 

that she would be tortured with the acquiescence of the 

government. The BIA explained that the IJ had speculated in 
10

determining Arreaga-Bravo’s likelihood of torture. The BIA 

explained that, while the country conditions report evidenced 

violence against women in Guatemala generally, it was not 

persuaded that Arreaga-Bravo faced a particularized risk of 

harm. As such, the BIA held it was “unable to uphold” the 

IJ’s decision granting the application for protection under 

CAT. A.R. 5. This appeal followed. 

II. JURISDICTION AND STANDARD OF REVIEW

The BIA had jurisdiction under 8 C.F.R. §

1003.1(b)(3). We have jurisdiction under 8 U.S.C. § 1252(a). 

For findings of fact, the BIA is required to apply a 

clearly erroneous standard of review to the IJ’s 

determinations, 8 C.F.R. § 1003.1(d)(3)(i), and a de novo 

standard of review to the IJ’s decisions of law, 8 C.F.R. § 

1003.1(d)(3)(ii). We review de novo whether the agency 

properly analyzed the applicant’s CAT protection claim. See 

Quinteros v. Att’y Gen., 945 F.3d 772, 786 (3d Cir. 2019).
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III. DISCUSSION

Arreaga-Bravo argues that the BIA erred in rejecting 

the IJ’s factual finding that it was more likely than not that 

she would be tortured if she returned to Guatemala. She also 

maintains that the BIA applied the wrong standard of review 

to the IJ’s finding that the Guatemalan government will 

acquiesce in that torture. 

A. LIKELIHOOD OF FUTURE TORTURE

We agree with Arreaga-Bravo that the BIA failed to 

apply the clearly erroneous standard in reversing the IJ’s 

factual determination on the likelihood of future torture.

To qualify for relief under CAT, an individual must 

establish that “it is more likely than not that he or she would 

be tortured if removed to the proposed country of removal.” 

8 C.F.R. § 1208.16(c)(2); see Kaplun v. Att’y Gen., 602 F.3d 

260, 268 (3d Cir. 2010). Torture is defined as “an extreme 

form of cruel and inhuman treatment and does not include 
12

lesser forms of cruel, inhuman or degrading treatment or 

punishment that do not amount to torture.” 8 C.F.R. § 

1208.18(a)(2). Likelihood of future torture is “a mixed 

question of law and fact” which requires “the IJ [to] address 

two questions: ‘(1) what is likely to happen if the petitioner is 

removed; and (2) does what is likely to happen amount to the 

legal definition of torture?’” Myrie v. Att’y Gen., 855 F.3d 

509, 516 (3d Cir. 2017) (quoting Kaplun, 602 F.3d at 271).

In support of her CAT claim, Arreaga-Bravo provided:

her own testimony; an amended affidavit describing her 

experiences; police and medical reports on the 2005 rape of 

her sister in Malacatan; news articles describing the existent 

country conditions in Guatemala; and the declarations of 

three experts about gender-based violence in Guatemala and 

the effect of trauma on an asylum applicant’s ability to recall 

and recount his or her experiences. 
13

The IJ made a factual determination that ArreagaBravo would “more likely than not . . . be raped or killed if 

she returned to Guatemala.” A.R. 84. The IJ explained that 

Arreaga-Bravo’s “childhood, adolescence, and early 

adulthood in Guatemala were plagued with instances of 

violence against women.” A.R. 84-85. The IJ detailed these 

events:

When [Arreaga-Bravo] was very young, her 

older sister was raped by a gang member while 

they were living in La Batalia. Years later, 

[Arreaga-Bravo’s] younger sister was also raped

by a known gang member while they were living 

in Amorisan. When [Arreaga-Bravo] began 

working in Talisman, a border town close to 

Mexico, men often propositioned her for sex, and 

her friend, who sold ice cream in Talisman, was 

raped by multiple gang members. When 

[Arreaga-Bravo] moved to Mal[a]catan, her and 

her friend were held up at gunpoint and, on 

another occasion, gang members broke into her 

family’s home and stole all of their valuables. 

Beginning in 2016, Mara 18 attempted to recruit 

[Arreaga-Bravo] to be the girlfriend of one of 

their gang members. When [Arreaga-Bravo] 

refused, she started receiving threatening phone 

messages. [Arreaga-Bravo] changed her 
14

telephone number, but the gang members 

somehow found her new number and continued 

sending her messages. Two Mara 18 gang 

members subsequently approached [ArreagaBravo] on the street, held her a[t] knifepoint, and 

threatened to kill her and her family if she 

refused to join their gang. [Arreaga-Bravo] fled 

Guatemala shortly after this incident in April 

2016.

A.R. 85.

These events, combined with country conditions 

evidence presented about the “persistent” and “lethal violence 

against women” in Guatemala, led the IJ to find that ArreagaBravo had satisfied her burden of establishing likelihood of 

future torture. A.R. 85; see id. (“[Arreaga-Bravo’s] prior 

encounters with Mara 18, coupled with her sisters’ instances 

of past torture, her inability to internally relocate, and her 

return to a country with a staggering rate of violence against 

women, makes it more likely than not that [Arreaga-Bravo] 

would be raped or killed in Guatemala.”).
15

In reviewing this finding on appeal, the BIA concluded

“that the record does not support that it is more likely than not 

that [Arreaga-Bravo] will be tortured in Guatemala.” A.R. 4. 

The BIA acknowledged the horrific incidents involving 

Arreaga-Bravo’s sisters and friend. But it noted that “the 

record is unclear” if there are ongoing problems related to

Arreaga-Bravo’s sisters. A.R. 4–5. It explained that “the 

absence of past torture and sufficiently individualized 

evidence that it is more likely than not that specifically 

[Arreaga-Bravo] will be tortured” means it is “unable to agree 

with the Immigration Judge’s predictive finding.” A.R. 5-6. 

And overall, “on this record, the overall evidence does not 

sufficiently persuade us that [Arreaga-Bravo] faces a 

particularized risk of torture.” A.R. 5. 

We have explained that a finding is clearly erroneous 

“when . . . the reviewing court on the entire evidence is left 

with the definite and firm conviction that a mistake has been 
16

committed.” United States v. Murray, 821 F.3d 386, 391 (3d 

Cir. 2016) (internal quotation marks and citation omitted). 

But if “there are two permissible views of the evidence, the 

factfinder’s choice between them cannot be clearly 

erroneous.” Fed. Trade Comm’n v. AbbVie Inc., 976 F.3d

327, 368 (3d Cir. 2020) (internal quotation marks and citation 

omitted). That is the case here. 

It was not the BIA’s role to determine whether it 

agreed with the IJ’s weighing of the evidence in ArreagaBravo’s favor. Its role was to point to findings by the IJ that 

were “an obvious, plain, gross, significant, or manifest error 

or miscalculation.” Mendoza-Ordonez v. Att’y Gen., 869 F.3d 

164, 169 (3d Cir. 2017) (internal quotation marks and citation 

omitted).

1

 Rather than do this, the BIA substituted its view of 

1 The only instance in which the BIA seemingly applied clear 

error review was in addressing whether Arreaga-Bravo would 

be “an ideal target for gang recruitment.” A.R. 4. The BIA 
17

the evidence for that of the IJ, rather than reviewing for clear 

error, and concluded that it was “not sufficiently persuade[d]” 

with the IJ’s conclusion. A.R. 5. But the clear error 

“standard plainly does not entitle a reviewing court to reverse 

the finding of the trier of fact simply because it is convinced 

that it would have decided the case differently.” Alimbaev v. 

Att’y Gen., 872 F.3d 188, 195 (3d Cir. 2017) (quoting 

Anderson v. City of Bessemer, 470 U.S. 564, 573 (1985)).

B. GOVERNMENT ACQUIESENCE

The BIA’s misapplication of the clearly erroneous 

standard also plagued its analysis of the IJ’s determination 

about government acquiescence. 

held that the IJ’s description of Arreaga-Bravo “as a single 

female” was “clearly erroneous” because “the record reflects 

that she is no longer single.” A.R. 4. But as Arreaga-Bravo 

correctly points out, “[n]ot only is there no such evidence in 

the record, but this small point does not provide sufficient 

reasoning to overturn the IJ’s broader findings.” Pet’r’s Br. 

24.
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In Myrie, we explained that:

In assessing whether an applicant has established 

that public officials will acquiesce to the feared 

tortuous [sic] acts of a non-state actor, the IJ also 

must conduct a two-part analysis. First, the IJ 

makes a factual finding or findings as to how 

public officials will likely act in response to the 

harm the petitioner fears. Next, the IJ assesses 

whether the likely response from public officials 

qualifies as acquiescence under the governing 

regulations. . . . While the Board reviews the first 

part for clear error, it must review the second de 

novo.

855 F.3d at 516-17. The BIA and the IJ “must answer” both 

prongs “when evaluating a CAT claim,” and they “may not 

ignore evidence favorable to the alien.” Quinteros, 945 F.3d 

at 786.

The IJ determined that “[b]ased on the evidence before 

the Court . . . the Guatemalan government would remain 

willfully blind to the tortuous [sic] actions carried out by 

gangs and other criminal organizations against women in 
19

Guatemala.” A.R. 85–86. The IJ first invoked ArreagaBravo’s own experience as support:

[Arreaga-Bravo] credibly testified that her 

younger sister . . . was raped by a known gang 

member in 2005. [Arreaga-Bravo’s] parents 

reported the rape to the police, but, despite 

providing medical proof of the rape and 

identifying the individual responsible, the police 

stopped investigating [the] rape. Shortly before 

this, the mother of [Arreaga-Bravo’s sister’s] 

rapist bribed [Arreaga-Bravo’s] mother to drop 

the charges. When [Arreaga-Bravo]’s mother

refused the bribe, [Arreaga-Bravo] heard rumors 

that the mother of [Arreaga-Bravo’s sister’s] 

rapist then bribed the police to drop the charges. 

[The] rapist was never arrested and no charges 

were filed against him.

A.R. 86. 

Then, the IJ expounded on the country conditions 

evidence in the record, which bolstered the IJ’s conclusion 

that the Guatemalan government would remain willfully blind 

to foreseeable torture of Arreaga-Bravo. The IJ noted that 

statistics continue to show “one woman killed every twelve 

hours” and “a new case of sexual violence reported every 
20

forty-six minutes,” A.R. 86 (citing the 2016 Human Rights 

Report), and the government’s efforts to prosecute these 

crimes remain poor. See A.R. 87 (“In 2011, more than

20,000 cases were filed with the courts under the 2008 Law 

Against Femicide, however, less than three percent of those 

cases resulted in a judgment”).

On appeal, the BIA held that “the record does not 

support that it is more likely than not that [Arreaga-Bravo] 

will be tortured ‘by or at the instigation of or with the consent 

of a public official or other person acting in an official 

capacity.’” A.R. 5 (citing 8 C.F.R. § 1208.18(a)(7)). The 

BIA noted that there was no evidence that Arreaga-Bravo was 

“harmed by a government official.” A.R. 5. The BIA added 

that it is “unclear whether [Arreaga-Bravo] ever reported her 

own mistreatments to the police,” and that the “record does 

not support that the younger sister’s incident from more than 

a decade earlier, which allegedly involved police bribery and 
21

corruption, is indicative of government acquiescence 

involving [Arreaga-Bravo].” A.R. 5. It therefore concluded 

that “the overall evidence is insufficient to show that the 

police would specifically fail to act, or that their inability to 

provide assistance would constitute ‘consent or acquiescence’ 

under the regulations.’” A.R. 5.

Again, the BIA improperly reviewed the IJ’s factual 

findings. In accordance with 8 C.F.R. § 1003.1(d)(3)(i), the 

BIA needed to review the IJ’s finding of fact on the 

government acquiescence question for clear error. But the

BIA did not state that it was clearly erroneous for the IJ to 

find that the Guatemalan government would be unable to 

protect Arreaga-Bravo from the serious harm he found she 

was likely to suffer if removed back to Guatemala. Instead, 

the BIA seemed to review de novo the IJ’s factual findings as 

to how the government is likely to respond to Arreaga-
22

Bravo’s harm.

2 This was error. The BIA stepped out of the 

bounds of its permissible role. 

IV. CONCLUSION

Given the strength and rigor of the IJ’s underlying 

opinion, along with the BIA having exceeded its proper scope 

of review, we will vacate the BIA’s final order of removal 

and remand for further proceedings consistent with this 

opinion.

2

In its opposition brief, the Government appears to admit as 

such. Resp’t’s Br. 29 (“[T]he Board reviewed de novo the 

Immigration Judge’s determination that the Guatemalan 

authorities would acquiesce to Petitioner’s torture by Mara 

18.”).