Morales-Morales v. Barr, 933 F.3d 456

Background

Morales-Morales, a Salvadoran national, was removable based on an aggravated-robbery conviction and subsequent illegal reentry; an IJ granted deferral of removal under the Convention Against Torture (CAT).
She testified to prior MS-13 affiliation, family ties to active MS-13 members in El Salvador, past gang-related violence against relatives, and a 2016 gang-related threat (a messenger sent from prison seeking extortion).
An expert (Dr. Boerman) testified that El Salvador’s gangs are widespread and brutal, that government anti-gang measures and corruption have worsened conditions, and that police may acquiesce in or facilitate gang violence, especially toward perceived collaborators or returnees.
The IJ found Morales-Morales credible and that it was more likely than not she would be tortured on return, either by gangs with government acquiescence or directly by Salvadoran officials, and therefore deferred removal under CAT.
The BIA reversed in a single-member decision, concluding several IJ factual findings were clearly erroneous and improperly relying on country-conditions evidence from 2002–2004; it also discounted the 2016 messenger incident and found insufficient showing of government acquiescence.
The Fifth Circuit granted review limited to legal issues, held the BIA applied de novo review to factual findings (legal error), and remanded for the BIA to apply the proper clearly-erroneous standard.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Jurisdiction under 8 U.S.C. §1252(a)(2)(C)/(D)	Morales: BIA reversal of CAT relief is reviewable as a legal issue; deferral order is not a "final" order for §1252(a)(2)(C) bar	Gov: removability for aggravated felony bars review except for legal/constitutional claims	Court: Jurisdiction limited to legal/constitutional questions; review permitted to decide legal errors by BIA under §1252(a)(2)(D)
Whether BIA improperly applied review standard to IJ factfindings	BIA gave lip service to "clearly erroneous" but conducted de novo reweighing of evidence about likelihood of torture and government acquiescence	Gov/BIA argued IJ findings were clearly erroneous and relied on stale or insufficient evidence	Held: BIA legally erred by effectively conducting de novo review; remand required for proper clear-error review
Whether BIA improperly relied on 2002–2004 country conditions	Morales: BIA must consider current and all relevant evidence of future torture; focusing on 2002–2004 ignored post-2004 deterioration and 2016 evidence	Gov: prior removals without harm and 2004 conditions undermine claims	Held: BIA erred by focusing on 2002–2004 and subtracting evidence relied on by the IJ; this was de novo review and legal error
Whether record supports IJ finding government acquiescence or direct torture by officials	Morales: Family gang ties, messenger/extortion incident, and expert testimony about "extraordinary measures" and police complicity make IJ’s findings a permissible view of evidence	Gov: prior returns without targeting, lapse of membership, and lack of direct evidence that police would learn affiliation or torture her	Held: Evidence sufficed for a permissible view supporting IJ findings; BIA unlawfully substituted its view; remand for BIA to reapply clear-error standard

Key Cases Cited

Iruegas-Valdez v. Yates, 846 F.3d 806 (5th Cir. 2017) (limits on review of withholding/CAT decisions under §1252 and standards for CAT claims)
Alvarado de Rodriguez v. Holder, 585 F.3d 227 (5th Cir. 2009) (BIA must not state correct legal standard but apply an incorrect one; remand when BIA fails to apply clear-error review)
Chen v. Bureau of Citizenship & Immigration Servs., 470 F.3d 509 (2d Cir. 2006) (review of BIA’s application of standards to factual findings)
Anderson v. City of Bessemer City, 470 U.S. 564 (U.S. 1985) (where two permissible views of evidence exist, factfinder’s choice cannot be clearly erroneous)
Claudio v. Holder, 601 F.3d 316 (5th Cir. 2010) (jurisdictional principles limiting review under §1252)
Bokhari v. Holder, 622 F.3d 357 (5th Cir. 2010) (BIA’s interpretation and application of regulations presents legal questions reviewable by courts)