NOT FOR PUBLICATION                        FILED
                    UNITED STATES COURT OF APPEALS                       MAR 13 2020
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                              FOR THE NINTH CIRCUIT

RUDIS O. VASQUEZ CHAVEZ, AKA                    No.    17-71544
Rudis Omar Vasquez Chavez,
                                                Agency No. A095-019-996
                Petitioner,

 v.                                             MEMORANDUM*

WILLIAM P. BARR, Attorney General,

                Respondent.

                     On Petition for Review of an Order of the
                         Board of Immigration Appeals

                      Argued and Submitted February 5, 2020
                            San Francisco, California

Before: PAEZ, BEA, and FRIEDLAND, Circuit Judges.

      Rudis Vasquez Chavez (“Vasquez”) petitions for review of his final order of

removal after the Board of Immigration Appeals (“BIA”) reversed the decision of

the Immigration Judge (“IJ”), which had allowed Vasquez to avoid removal by

adjusting his status to that of a lawful permanent resident under 8 U.S.C. § 1255(i).

We have jurisdiction under 8 U.S.C. § 1252, grant the petition, and remand the



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
matter to the BIA.

      Although we lack jurisdiction to review the discretionary decisions of the

BIA to deny adjustment of status, see 8 U.S.C. § 1252(a)(2)(B)(i), we have

jurisdiction to address “questions of law” pertaining to the BIA’s exercise of

discretion, 8 U.S.C. § 1252(a)(2)(D). Whether the BIA accorded the factual

findings of the IJ appropriate deference under the “clear error” standard and

whether the BIA engaged in impermissible fact finding are legal claims we

evaluate de novo. Rodriguez v. Holder, 

, 1170 (9th Cir. 2012); see 8

C.F.R. § 1003.1(d)(3)(i), (iv).

      After the government agreed that Vasquez was eligible for adjustment of

status under 8 U.S.C. § 1255(i), the IJ held an evidentiary hearing to determine

whether to exercise his discretion to grant Vasquez’s application for adjustment of

status. At the conclusion of the hearing, after receiving Vasquez’s testimony and

reviewing documentary evidence, the IJ took “into account the social and humane

considerations presented in [Vasquez’s] favor and balance[ed] them against the

adverse factors that evidence[d] [Vasquez’s] undesirability as a permanent

resident.” Then the IJ, in his discretion, granted Vasquez’s application for

adjustment of status. Despite Vasquez’s history of arrests and convictions for

DUIs, the IJ found that Vasquez “readily admitted his wrongdoings” and that

Vasquez was “both able and willing to take the steps necessary to ensure that he


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does not drink again and, more importantly, that he never drinks and drives again.”

The IJ credited Vasquez’s testimony that this time would be different because the

removal proceedings “appear[ed] to have been the incident that served as

[Vasquez’s] rock bottom.” The IJ found that Vasquez’s commitment to substance

abuse counseling and his family’s professed willingness to support him—both

emotionally and by driving him to future counseling sessions—would assist him in

“maintain[ing] his newfound sobriety.”

      Supporting his decision to grant adjustment of status, the IJ’s decision is best

read as making the predictive, factual finding that Vasquez is unlikely to commit

another DUI offense. The scope of this finding is embodied in the IJ’s statement

that Vasquez was “able and willing to take the steps necessary to ensure . . . that he

never drinks and drives again.” Under established law, the BIA was required to

credit this factual determination unless the finding was “clearly erroneous.” 8

C.F.R. § 1003.1(d)(3)(i); see Ridore v. Holder, 

, 911 (9th Cir. 2012).

      There is nothing unusual about an IJ making predictive, factual

determinations about the likelihood that crimes will be committed in the future. In

removal proceedings, IJs regularly must determine whether an alien is likely to be

the victim of persecution or torture in another country if removed from the United

States. See 8 U.S.C. § 1231(b)(3); 8 C.F.R. § 1208.16(c)(4). These factual

determinations are accorded deference and reviewed under the clear error standard.


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Vitug v. Holder, 

, 1063 (9th Cir. 2013) (“‘Facts include . . . states of

mind such as intentions and opinions’ and ‘expressions of likelihood based on

testimony (both lay and expert) and/or documentary evidence.’” (quoting Kaplun

v. Att’y Gen., 

, 269–70 (3d Cir. 2010)); Matter of Z-Z-O-, 26 I. & N.

Dec. 586, 590 (BIA 2015) (“[A]n Immigration Judge’s predictive findings of what

may or may not occur in the future are findings of fact, which are subject to a

clearly erroneous standard of review.”). Nothing about the IJ’s predictive, factual

determination here that Vasquez is unlikely to be a perpetrator (rather than a

victim) of a crime in the United States (rather than in another country)

distinguishes the finding from the more typical predictive finding in removal

proceedings that is accorded deference.

      Although the BIA was required to credit the IJ’s factual determinations,

unless they were clearly erroneous, “[t]he Board may review questions of law,

discretion, and judgment” de novo. 8 C.F.R. § 1003.1(d)(3)(ii). Thus, in reviewing

the IJ’s grant of adjustment of status, the BIA was bound (absent clear error) by the

IJ’s factual findings about the existence and nature of equities weighing for and

against granting the application for adjustment of status, including the finding that

Vasquez was unlikely to commit a DUI in the future. Accepting these findings

true, the BIA was free to reweigh the equities as it saw fit. See 

–22.


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      In reversing the IJ’s decision to grant adjustment of status, the BIA held that

Vasquez’s “history of recidivism undermine[d] his claim of rehabilitation,” that he

“ha[d] not shown persuasive evidence of rehabilitation,” and that he posed “a

continuing risk to the public.” The most natural reading of these statements is that

the BIA disagreed with the IJ that Vasquez was “able and willing to take the steps

necessary to ensure . . . that he never drinks and drives again.” In doing so, the BIA

rejected the IJ’s factual determination without applying the clear error standard.

      To be sure, the BIA’s overall conclusion was that “consider[ing] the totality

of the circumstances,” Vasquez’s “pattern of criminal conduct outweigh[ed] the

positive factors in this case.” Unlike its other statements, this conclusion is most

naturally read as the BIA properly applying de novo review to the IJ’s

discretionary decision to grant Vasquez adjustment of status. But the BIA reached

that conclusion only after having failed to “faithfully employ[] the clear error

standard” to the facts found by the IJ, so its “invocation of” the correct standard of

review is insufficient. See 

.

      The BIA’s decision to reverse the IJ thus presents a section that reads as an

impermissible rejection of the IJ’s factual findings but a conclusion that reflects the

BIA’s awareness of the permissible scope of its discretion. Therefore, we grant

Vasquez’s petition for review and remand the matter to the BIA with instructions

to reconsider Vasquez’s application for adjustment of status while according the


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IJ’s factual findings deference under the clear error standard.

      PETITION FOR REVIEW GRANTED AND REMANDED.




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