Oscar Higueros v. Eric Holder, Jr.

FILED
NOT FOR PUBLICATION JUL 03 2014

MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

OSCAR HUMBERTO HIGUEROS, No. 11-71380

Petitioner, Agency No. A087-913-490

v.
MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,

Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals

Submitted June 25, 2014**

Before: HAWKINS, TALLMAN, and NGUYEN, Circuit Judges.

Oscar Humberto Higueros, a native and citizen of Guatemala, petitions for

review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal

from an immigration judge’s decision denying his application for relief under the

Convention Against Torture (“CAT”). We have jurisdiction under 8 U.S.C.

*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
§ 1252. We review for substantial evidence the agency’s factual findings, Tapia

Madrigal v. Holder, 716 F.3d 499, 503 (9th Cir. 2013), and we grant the petition

for review and remand.

In assessing Higueros’s fear of torture, the BIA acknowledged the evidence

showed the existence of “rogue officials” in Guatemala, and found the existence of

rogue officials “cannot be used” to demonstrate that government officials would

acquiesce to any torture of Higueros. The BIA’s finding is not supported, see

Tapia Madrigal, 716 F.3d at 509-10 (“[A]n application for CAT relief need not

show that the entire foreign government would consent to or acquiesce in his

torture. He need show only that ‘a public official’ would so acquiesce.”), and its

analysis is otherwise not clear, see Recinos De Leon v. Gonzales, 400 F.3d 1185,

1189 (9th Cir. 2005) (“When the agency’s reasoning is indiscernible, the courts

cannot exercise their duty of review, and instead must remand to the agency.”)

(internal citations and quotation omitted). Accordingly, we grant the petition and

remand Higueros’s CAT claim for further proceedings consistent with this

disposition. See INS v. Ventura, 537 U.S. 12, 16-18 (2002).

In light of our disposition, we do address Higueros’s remaining contentions.

PETITION FOR REVIEW GRANTED; REMANDED.

2 11-71380