Submitted: January 9, 2018
Petition for Review of an Order of the Board of Immigration
WOLLMAN, COLLOTON, and BENTON, Circuit Judges.
COLLOTON, Circuit Judge.
Garcia-Mata, a citizen of Mexico, petitions for review of a
decision of the Board of Immigration Appeals. After an
immigration judge ordered withholding of removal, the Board
vacated that decision, denied relief, and ordered Garcia-Mata
removed to Mexico. Garcia-Mata argues that the Board
conducted de novo review and made its own findings
of fact, contrary to governing regulations. We cannot tell
from the Board's rather opaque opinion whether the agency
followed its regulations and applied the correct standard of
review, so we remand for the Board to clarify its decision.
entered the United States in the 1990s when she was eight
years old and was deported in 2015 after sustaining criminal
convictions. She attempted to re-enter the country using a
stolen passport, but was caught by border patrol agents. She
served a five-month prison sentence and then was deported to
Mexico for a second time. In an effort to aid her return to
the United States yet again, Garcia-Mata's husband, with
help from her father, hired a group to smuggle her across the
to Garcia-Mata, a member of this group instructed her to take
a bus to the border city of Nogales, Mexico. Once she
arrived, a waiting taxi took her to a house in Nogales.
Garcia-Mata waited at the house for almost two weeks. While
she was waiting, members of the group told her that they were
"not allowed to make any mistakes," and that
"they will never leave a loose string." She
frequently saw armed men come in and out of the house. At one
point, a man allegedly wearing a United States Border Patrol
uniform told Garcia-Mata what questions to expect at the
border and how to answer them.
Patrol agents apprehended Garcia-Mata when she and a member
of the smuggling group entered the United States. Garcia-Mata
was detained as a material witness against the smuggler, but
she was never called to testify against him.
Garcia-Mata was detained by authorities, someone in the
smuggling group contacted her husband to let him know that
she was detained and the reason why. The husband also
received a series of text messages purportedly from someone
in the group. One stated that "your wife . . . pointed
the finger at him. You don't do that shit, man."
Another stated that when Garcia-Mata "got out,"
"they had something to ask [her]."
Mexico, the smuggling group had taken Garcia-Mata's cell
phone and her Mexican identification with addresses for her
grandparents in Mexico and family in Kansas City. The group
began to contact people listed as contacts in the telephone
to find out more about Garcia-Mata, so her sister-in-law
cancelled Garcia-Mata's phone service shortly after
Garcia-Mata was detained. Neither Garcia-Mata nor her family
received any communications from the smuggling group after
the series of text messages sent to the husband.
immigration judge found that Garcia-Mata was a member of the
particular social group "witnesses in criminal
proceedings who will be targeted in Mexico." The judge
found Garcia-Mata credible and concluded that "the
organized smuggling criminal organization would have the
capability and the knowledge of [Garcia-Mata's] address
to carry out any threats." The immigration judge
ultimately concluded that future persecution was more likely
than not to occur if Garcia-Mata were removed to Mexico, so
he granted her application for withholding of removal.
government appealed and argued that the immigration judge
erroneously concluded that Garcia-Mata met her burden of
proof to establish that she was eligible for withholding of
removal. The Board agreed, concluding "that the
Immigration Judge's findings as to whether [Garcia-Mata]
met her burden in establishing the likelihood of future
persecution for purposes of withholding of removal is not
supported by the evidence in the record or the precedent of
the United States Court of Appeals for the Eighth
Circuit." The Board reasoned that the threats were
"nonspecific" and came "from an unidentified
source." The Board criticized the immigration
judge's conclusion that the smuggling group had the
"capability and knowledge" to carry out threats
against Garcia-Mata as "based on his own speculation
rather than evidence contained in the record." One Board
member dissented on the ground that the Board is limited to
"clear error" review of predictive fact-finding,
and that the government had not demonstrated clear error in
the immigration judge's finding that future persecution
was more likely than not.
petitions for review, arguing the Board applied the incorrect
standard of review to the immigration judge's factual
findings. We review this question de novo,
considering both the standard recited by the Board and the
Board's analysis. Waldron v. Holder, 688 F.3d
354, 360-61 (8th Cir. 2012); Ramirez-Peyro v.
Gonzales, 477 F.3d 637, 641 (8th Cir. 2007).
appeal requires attention to two settled principles of
administrative law. One is that an agency, in adjudicating
the rights of individuals, must follow its own procedures and
regulations. Morton v. Ruiz, 415 U.S. 199, 235
(1974); Suciu v. INS, 755 F.2d 127, 129 (8th Cir.
1985) (per curiam); Singh v. U.S. Dep't of
Justice, 461 F.3d 290, 296 (2d Cir. 2006). The second
provides that in rendering an agency decision that is subject
to judicial review, the Board "must describe its
reasoning 'with such clarity as to be