facts in the record that rendered such a predictive inference implausible, including

that Chopin-Ramos was a child at the time of the rape, lived unharmed in Mexico

for 6 years after the incident, has had no contact with the rapist since the incident,

and does not know where the rapist is. The BIA did not engage in impermissible

factfinding, but rather found that the predicate facts found by the IJ did not support

2 a reasonable inference that the cousin would torture Chopin-Ramos in the future

with the acquiescence of the Mexican government.

2. Chopin-Ramos also claimed that he was more likely than not to be tortured

if removed on account of his status as gay male in a same-sex marriage. But in

challenging the BIA decision that the IJ’s prediction of future torture was not

supported by the record, Chopin-Ramos “does not point to any fact found by the IJ

that was ignored by the BIA, or any fact found by the BIA that was not found by the

IJ” other than the predictive inference. Perez-Palafox v. Holder, 744 F.3d 1138,

1145 (9th Cir. 2014). In contrast to Guerra, the BIA acknowledged and accepted

the “key factual findings on which the IJ based her conclusion,” 974 F.3d at 914;

including that there was discrimination and violence against homosexuals in

Mexico, that LGBTQ individuals were mistreated in prison, and that “the

government did not always investigate” crimes against homosexuals “especially

outside of Mexico City.” But the BIA concluded that these facts were insufficient

to support an inference that Chopin-Ramos likely would be tortured with

government acquiescence if returned to Mexico. The BIA noted that the IJ failed to

make any individualized finding of specific intent to torture by any actor and that

the record showed areas in Mexico, including Mexico City, to which Chopin-Ramos

may be able to safely relocate. Thus, this is not a case in which the BIA

“substitute[d] its own view of the facts” in finding “clear error.” See Ridore, 696

3 F.3d at 919.

3. The remaining issue is whether “the facts found by the IJ (and that the BIA

determines are not clearly erroneous) meet the legal requirements for relief under

the CAT.” See id. at 915 (cleaned up). They do not.

a. Apart from the past rape by the cousin, which the BIA appropriately

addressed for the reasons stated above, Chopin-Ramos’s fear of future torture rests

on country condition reports. But, “[a]lthough the reports confirm that torture takes

place in [Mexico], they do not compel the conclusion that [Chopin-Ramos] would

be tortured if returned.” Almaghzar v. Gonzales, 457 F.3d 915, 923 (9th Cir. 2006).

The BIA also cited evidence showing improved legal protections and increasing

tolerance for same-sex marriages and LGBTQ individuals in various Mexican states,

see Lanza v. Ashcroft, 389 F.3d 917, 936 (9th Cir. 2004) (denial of CAT relief on

similar evidence), and reasonably concluded that Chopin-Ramos may be able to

relocate within Mexico to avoid any feared torture, see 8 C.F.R. § 1208.16(c)(3)(ii).

b. Nor does the record compel the conclusion that the government will

acquiesce in any future torture. See Garcia-Milian v. Holder, 755 F.3d 1026, 1033

(9th Cir. 2014) (even assuming the petitioner would be tortured upon return, he must

show “sufficient state action involved in that torture”) (cleaned up). There is no

claim of government acquiescence in the rape. The IJ cited reports that gays were

tortured in prison and that police outside of Mexico City sometimes did not

4 investigate crimes against gays. But there is no evidence that Chopin-Ramos is

likely to be incarcerated and no suggestion that he could not safely locate to an area,

including Mexico City, where police investigate such crimes.

PETITION FOR REVIEW DENIED.

5

FILED

Luis Chopin-Ramos v. Garland, 20-70576 AUG 19 2022 Paez, Circuit Judge, dissenting: MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

In my view, the Board of Immigration Appeals (“BIA”) erred by failing to

faithfully apply clear error review of the Immigration Judge’s (“IJ”) factual

findings, including the IJ’s predictive inference that Chopin-Ramos is likely to

suffer torture with government acquiescence if he is deported to Mexico. Instead,

the BIA impermissibly substituted its own view of and reweighed the facts.

Therefore, I respectfully dissent from the majority’s denial of Chopin-Ramos’s

petition for review of his claim for protection under the Convention Against

Torture (“CAT”).

The majority correctly observes that the BIA reviews for clear error the IJ’s

prediction whether Chopin-Ramos is more likely than not to suffer torture. In so

doing, “the BIA cannot disregard the IJ’s findings and substitute its own view of

the facts.” Ridore v. Holder, 696 F.3d 907, 919 (9th Cir. 2012). “Either it must find

clear error, explaining why; or, if critical facts are missing, it may remand to the

IJ.” Id. The majority holds that the BIA appropriately determined that the IJ’s

factual findings were clearly erroneous because the IJ’s findings “were insufficient

to support an inference that Chopin-Ramos likely would be tortured with

government acquiescence if returned to Mexico.” Maj. Disp. 3. I disagree.

As the majority acknowledges, the BIA did not take issue with any of the

predicate factual findings relied upon by the IJ. Indeed, the BIA expressly credited 1 the very factual findings that supported the IJ’s grant of deferral of removal.

Nonetheless, the BIA rejected the IJ’s conclusion that those findings supported a

predictive inference that Chopin-Ramos is likely to experience torture in Mexico.

But, in fact, the BIA legally erred because it impermissibly reweighed the

factual findings and record evidence that supported the IJ’s analysis and predictive

inference. The IJ’s inference that Chopin-Ramos is likely to suffer torture was

based on the IJ’s assessment of the aggregate risk posed to Chopin-Ramos, as

demonstrated by the record evidence. Chopin-Ramos credibly testified 1 that he was

raped as a child and that the rape was committed by a family member. Chopin-

Ramos further testified that he fears the rapist will retaliate against him because he

disclosed the perpetrator’s identity to his family. Moreover, the IJ considered

record evidence of country conditions showing that (1) crimes committed against

LGBT individuals are neither investigated nor prosecuted in Mexico and police are

often complicit in the persecution of the community, (2) according to survey data

of LGBT individuals in Mexico, six in ten respondents knew an LGBT person

murdered in the past three years, (3) over 200 murders of LGBT persons were

reported between 2014-16,and (4) attacks against the LGBT community surged in

response to legislation permitting same-sex marriage.

1 The IJ found Chopin-Ramos credible, and the government did not contest this determination in its appeal to the BIA. 2 The BIA did not question the propriety or accuracy of any of the record

evidence or of any of the IJ’s predicate factual findings. Instead, the BIA made

unsupported, conclusory assertions that the evidence did not support the IJ’s

determination that Chopin-Ramos carried his burden to show he was more likely

than not to experience torture in Mexico. To do so, the BIA impermissibly

“substitute[d] its own view of the facts.” Ridore, 696 F.3d at 919.

First, the BIA discounted the weight of the rape that Chopin-Ramos

experienced as a child and ignored Chopin-Ramos’s testimony about his fear that

the perpetrator would target him again. Instead of accounting for the context that

Chopin-Ramos was raped by a family member and that he fears retaliation because

he disclosed the rape and identity of the rapist to his family, the BIA focused on

Chopin-Ramos’s testimony that he lacked personal contact with the person who

raped him to dismiss any possibility that Chopin-Ramos could face future harm by

the rapist. Second, the BIA speculated that “increasing public tolerance of LGBT

individuals in various Mexican states” makes it appear that Chopin-Ramos “may

be able to relocate within Mexico.” But the BIA does not point to record evidence

to support that observation and disregarded country conditions evidence in the

record to the contrary. And third, the BIA provided no basis for recasting record

evidence of pervasive mistreatment and neglect of LGBT persons by Mexican

police, as merely “some dismissive attitudes among police officers.”

3 The criticisms that the BIA lodged against the IJ’s findings and predictive

inference amount to the BIA’s preferred weighing of the evidence. This was error.

“[T]he clear error standard does not allow the BIA to reweigh the evidence when

the IJ’s account of the evidence is plausible.” Guerra v. Barr, 974 F.3d 909, 914

(9th Cir. 2020). Nowhere does the BIA explain why the IJ’s account of the

evidence is implausible. Instead, the BIA asserted a different view of the balance

of the evidence. It may not do so. “[T]he BIA may not reverse an IJ’s finding

simply because it is convinced that it would have decided the case differently.” Id.

at 913 (quotation marks and citation omitted). “Where there are two permissible

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

erroneous.” Id.

Thus, I would grant Chopin-Ramos’s petition for review because the BIA

legally erred by failing to faithfully apply clear error review of the IJs factual

findings. Because this error necessarily infected the BIA’s review of the IJ’s

consideration of “all relevant evidence” related to Chopin-Ramos’s application for

CAT relief, Maldonado v. Lynch, 786 F.3d 1155, 1164 (9th Cir. 2015), I would

remand to the BIA to conduct a proper review.

4