NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FILED
FOR THE NINTH CIRCUIT
JUN 14 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FROYLAN RODRIGUEZ-HUERTA, No. 15-70137
AKA Froylan Rodriguez,
Agency No. A200-885-276
Petitioner,
v. MEMORANDUM*
JEFFERSON B. SESSIONS III, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted June 11, 2018**
Seattle, Washington
Before: D.W. NELSON and WATFORD, Circuit Judges, and PREGERSON,***
District Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Dean D. Pregerson, United States District Judge for
the Central District of California, sitting by designation.
Froylan Rodriguez-Huerta, a native and citizen of Mexico, petitions for
review of the Board of Immigration Appeals’s (“BIA”) denial of his application for
withholding of removal and relief under the Convention Against Torture (“CAT”).1
We have jurisdiction pursuant to 8 U.S.C. § 1252. We review the agency’s factual
findings for substantial evidence. Wakkary v. Holder, 558 F.3d 1049, 1056 (9th
Cir. 2009). Whether the BIA has applied the correct standard of review is a
question of law that we review de novo. See Rodriguez v. Holder, 683 F.3d 1164,
1169 (9th Cir. 2012). We grant Rodriguez-Huerta’s petition and remand.
I. Withholding of Removal
The BIA is required to review findings of fact for clear error and cannot
conduct de novo review of those facts. 8 C.F.R. § 1003.1(d)(3)(i), (iv). “Where
there are mixed questions of fact and law, the BIA must break down the inquiry
into its parts and apply the correct standard of review to the respective
components; it cannot glue the two questions together and review the factual
question de novo.” Vitug v. Holder, 723 F.3d 1056, 1063 (9th Cir. 2013)
(citations, internal alterations, and quotations omitted).
1
The agency also denied Rodriguez-Huerta’s application for cancellation of
removal, but he does not petition for review on this ground.
2
As to Rodriguez-Huerta’s withholding of removal claim, the Immigration
Judge (“IJ”) erred when he did not consider or find facts related to Rodriguez-
Huerta’s argument that he would be targeted as a former government informant.
See Sagaydak v. Gonzales, 405 F.3d 1035, 1040 (9th Cir. 2005) (holding that
agency may not ignore arguments raised by a petitioner). The IJ made findings
related to Rodriguez-Huerta’s fear that he may experience random violence based
on being perceived as a wealthy person returning from the United States.
However, the IJ made no findings of fact on Rodriguez-Huerta’s claim that he
would be persecuted based on his membership in the government informant group,
including whether Rodriguez-Huerta would be recognized as a government
informant. See Henriquez-Rivas v. Holder, 707 F.3d 1081, 1089 (9th Cir. 2013)
(en banc) (holding that “perception of the persecutors may matter the most” in a
well-founded fear of future persecution claim); Vitug, 723 F.3d at 1063–64 (stating
that intentions of persecutors are factual determinations). “Where the IJ has not
made a finding of fact on a disputed matter, and such a finding is necessary to
resolution of the case, the BIA must remand to the IJ to make the required finding;
it may not conduct its own fact-finding.” Rodriguez, 683 F.3d at 1170 (citing 8
C.F.R. § 1003.1(d)(3)(iv)). We therefore remand so that the IJ can conduct the
3
necessary fact finding on Rodriguez-Huerta’s claim that he will more likely than
not face persecution on account of being a former government informant.
As Petitioner argues, the IJ also did not make any findings as to the
government’s willingness or ability to control persecutors. “And in determining
that the record does not support the conclusion that the government would be
unable or unwilling to protect [Rodriguez-Huerta], the BIA made additional factual
findings that the IJ never made.” Vitug, 723 F.3d at 1063–64 (internal quotations
omitted). Thus, we remand so that the IJ can make factual determinations about
the government’s willingness or ability to control persecutors. Rodriguez, 683
F.3d at 1170.
II. CAT Relief
Neither the BIA nor the IJ considered the Country Conditions report.
“[F]ailure of the BIA to consider evidence of country conditions constitutes
reversible error where the Country Report has been submitted as evidence, it
addresses the risk of torture, and the BIA does not even mention it.” Andrade v.
Lynch, 798 F.3d 1242, 1244 (9th Cir. 2015) (per curiam). “The government argues
that the Country Report fails to demonstrate a likelihood of torture by the
government or with the government's acquiescence. Such an argument is
premature.” Aguilar-Ramos v. Holder, 594 F.3d 701, 705 (9th Cir. 2010). We
4
therefore grant the petition for review as to Rodriguez-Huerta’s application for
CAT relief and remand to the BIA with instructions to reconsider his CAT claim in
light of the country conditions in Mexico and state its conclusions in the record.
Id. at 705.
PETITION FOR REVIEW GRANTED; REMANDED FOR FURTHER
PROCEEDINGS IN CONFORMITY WITH THIS MEMORANDUM.
5
Froylan Rodriguez-Huerta v. Jefferson Sessions
Combined Opinion