Agency No. A030-689-693 ERIC H. On Petition for Review of an Order of the Board of Immigration Appeals
The opinion of the court was delivered by: Fisher, Circuit Judge:
Argued and Submitted August 31, 2011-San Francisco, California
Before: Raymond C. Fisher and Johnnie B. Rawlinson, Circuit Judges, and George H. Wu, District Judge.*fn1
Jean Baptiste Ridore petitions for review of a decision of the Board of Immigration Appeals (BIA) ordering him removed to his native Haiti. The BIA vacated the decision of the immigration judge (IJ) granting Ridore protection under the Convention Against Torture (CAT) and cancellation of removal. Ridore argues that the BIA acted beyond the scope of its authority under 8 C.F.R. § 1003.1(d)(3) by reviewing the IJ's findings under a de novo rather than clear error standard and improperly engaging in its own factfinding. We agree that the BIA committed legal error in vacating the IJ's decision with respect to the CAT protection claim, and therefore grant Ridore's petition and remand to the BIA to review the IJ's CAT findings applying the clear error standard. As to cancellation of removal, the BIA applied the correct standard of review, so we deny Ridore's petition to that extent. We vacate, however, that part of the BIA's order and remand to the BIA for reconsideration in light of our remand on Ridore's CAT claim.
Ridore, a native and citizen of Haiti, was admitted to the United States as a lawful permanent resident in 1973, at the age of 12. His father, sister and brother are United States citizens. Ridore lived with his mother and grandmother. When he was approximately 21 years old, Ridore's mother and grandmother were killed, and he discovered their murdered bodies in their home. He subsequently developed a problem with alcohol, and between 1991 and 2004 he was convicted of a string of criminal offenses, including petit larceny, theft, criminal trespass, possession of drug paraphernalia, second degree commercial burglary, failure to maintain liability insurance, failure to use a safety restraint, fictitious registration display, obscene conduct, reckless driving, failure to provide proof of insurance, speeding, operating without liability insurance, driving without privileges and, on three occasions, driving while intoxicated. Ridore came to the attention of the federal immigration authorities, who initiated the removal proceedings that are the basis of this appeal.
Initial Proceedings. In 2003, the Department of Homeland Security (DHS) issued Ridore a Notice to Appear (NTA) alleging that he was removable under 8 U.S.C. § 1227(a)(2)(A) for having been convicted of a felony relating to theft or burglary and sentenced to a term of imprisonment of at least one year, and for having committed two crimes of moral turpitude.
Ridore applied for cancellation of removal and moved to terminate removal proceedings, arguing that he had derivative citizenship through his father. The IJ found Ridore removable on both grounds alleged in the NTA, denied cancellation of removal because of Ridore's aggravated felony conviction and denied his motion to terminate removal proceedings because he failed to prove derivative citizenship.
On appeal, the BIA affirmed the finding that there was insufficient evidence of derivative citizenship, but reversed the IJ's finding that Ridore was removable as an aggravated felon. Because reversal of the aggravated felony charge made Ridore potentially eligible for relief that was previously barred, including withholding of removal and cancellation of removal, the BIA remanded the case to the IJ.
2005 Proceedings Before the IJ on Remand. On remand, Ridore in 2005 added applications for asylum, withholding of removal and CAT protection to his pending cancellation of removal proceeding. The IJ heard testimony from Ridore, his brother Evald and - most relevant to this appeal - an expert witness, Michelle Karshan, the founder of Alternative Chance, an organization that provides aid to criminal deportees in Haiti. The IJ also reviewed an affidavit from Karshan, the State Department's 2004 Country Report on Haiti's Human Rights Practices and "numerous background materials" Ridore submitted.
The parties were provided an opportunity to submit briefs on the significance of In re J-E-, 23 I. & N. Dec. 291 (BIA 2002) (en banc), abrogated on other grounds by Azanor v. Ashcroft, 364 F.3d 1013, 1019-20 (9th Cir. 2004), in which the BIA rejected a similar claim for CAT protection based on the detention and life-threatening conditions criminal deportees allegedly faced in Haitian prisons. In April 2005, the IJ denied Ridore's applications for asylum and withholding of removal but granted CAT protection and cancellation of removal. The IJ concluded that CAT protection was warranted because Ridore's specific circumstances and the current conditions in Haiti's prisons were distinguishable from those existing at the time of In re J-E-, such that cancellation was warranted as a matter of discretion.
2007 Appeal to the BIA. The DHS appealed the IJ's decision to the BIA, which sustained the appeal and vacated the IJ's grant of CAT protection and cancellation of removal. The BIA concluded that Ridore's case was controlled by In re JE- for the purposes of his CAT protection claim, and that a discretionary grant of cancellation was unwarranted. Ridore now petitions for review.
JURISDICTION AND STANDARD OF REVIEW
We have exclusive jurisdiction over petitions for review of final orders of removal. See 8 U.S.C. § 1252. We have jurisdiction to review Ridore's legal challenges to the BIA's denial of his CAT claim pursuant to § 1252(a)(2)(D). Although we typically may not review the BIA's finding that a case does not warrant a discretionary grant of cancellation of removal, see id. § 1252(a)(2)(B)(i), such jurisdiction stripping provisions do not apply where, as here, the petitioner raises a question of law - whether the BIA acted within its regulatory authority. See Afridi v. Gonzales, 442 F.3d 1212, 1218 (9th Cir. 2006), abrogated on other grounds by EstradaEspinoza v. Mukasey, 546 F.3d 1147 (9th Cir. 2008).
We review factual findings for substantial evidence, see Azanor, 364 F.3d at 1018, and legal questions de novo, see De Martinez v. Ashcroft, 374 F.3d 759, 761 (9th Cir. 2004). Whether the BIA has applied the correct standard of review is a question of law. See Rodriguez v. Holder, 683 F.3d 1164, 1169 (9th Cir. 2012).
 The central question presented here is whether the BIA, in overruling the IJ's grants of CAT protection and discretionary cancellation of removal, failed to apply a clear error standard of review to the IJ's factual findings and engaged in factfinding that it is not authorized to do in its appellate function. The governing regulations explicitly state that the BIA shall not "engage in de novo review of findings of fact determined by an immigration judge." 8 C.F.R. § 1003.1(d)(3)(i). Rather, "[f]acts determined by the immigration judge, including findings as to the credibility of testimony, shall be reviewed only to determine whether the findings of the immigration judge are clearly erroneous." Id. The BIA may, however, "review questions of law, discretion, and judgment . . . de novo." Id. § 1003.1(d)(3)(ii). "Where the BIA engages in de novo review of an IJ's factual findings instead of limiting its review to clear error, it has committed an error of law." Rodriguez, 683 F.3d at 1170. Further, the BIA may "not engage in factfinding in the course of deciding appeals." 8 C.F.R. § 1003.1(d)(3)(iv).
Ridore argues that the BIA violated these regulations, either by failing to justify its rejection of evidence the IJ relied upon or by ignoring it entirely - essentially engaging in de novo review and its own factfinding. We agree with him as to his CAT claim, but not as to cancellation of removal, although we conclude that the ...