Fourth Circuit Vacates BIA's Reversal of CAT Relief for Improper De Novo Review

The Fourth Circuit, on remand from the Supreme Court, has granted a Jamaican petitioner's amended petition for review challenging the BIA's reversal of an immigration judge's grant of deferral of removal under the Convention Against Torture. The petitioner feared torture at the hands of a Jamaican drug lord who had allegedly ordered the killing of two of his cousins, with the acquiescence of local police.

Addressing threshold issues left open by the Supreme Court's decision in Riley v. Bondi, the Court permitted the petitioner to amend his petition to include his original removal order, curing any jurisdictional defect. On the merits, the Court held that the BIA had improperly reweighed the evidence and substituted its own factual findings for the immigration judge's, rather than applying the deferential clear-error standard required for review of CAT determinations. The Court vacated the BIA's decision and remanded for the agency to reconsider under the correct standard.

The full text of Riley v. Blanche can be found here: https://www.ca4.uscourts.gov/opinions/221609.P.pdf

Second Circuit Vacates CAT Denial for Failure to Assess Torture Conditions in Salvadoran Prisons

The Second Circuit has granted in part a petition for review filed by a Salvadoran former gang member found removable after a firearms conviction. The agency had denied asylum, withholding of removal, and protection under the Convention Against Torture, finding the petitioner not credible and unlikely to be tortured if detained upon return to El Salvador.

The Court upheld the adverse credibility finding, concluding it was supported by substantial evidence given inconsistencies in the petitioner's account of his gang involvement. However, the Court found that the agency failed to properly evaluate whether the harsh conditions in Salvadoran prisons, imposed under the government's "state of exception," amount to torture, and did not consider evidence that those conditions are intentionally maintained rather than merely the product of neglect or lack of resources. The case was remanded for further consideration of the CAT claim.

The full text of Aguilar-Villalobos v. Blanche can be found here: https://ww3.ca2.uscourts.gov/decisions/OPN/23-6899_opn.pdf

BIA Finds Pennsylvania Drug Trafficking Conviction Is a Particularly Serious Crime

The Board of Immigration Appeals has held that a Pennsylvania conviction for possession with intent to deliver a controlled substance was a particularly serious crime. The respondent, a transgender woman from Jamaica, had previously been granted asylum, and DHS appealed.

The Board found that the offense involved serious drug trafficking conduct, including a significant sentence and circumstances showing a large packaged quantity of marijuana and attempted concealment from police. The Board also denied CAT protection, finding that past harm was inflicted by private actors and that the respondent had not shown likely government acquiescence in future torture. The Board sustained DHS’s appeal and ordered removal to Jamaica.

The full text of Matter of G-L-C- can be found here: https://www.justice.gov/eoir/media/1449211/dl?inline

BIA Finds Safeguards Adequate for Incompetent Applicant in Withholding-Only Proceedings

The Board of Immigration Appeals has held that an incompetent applicant in withholding-only proceedings received adequate safeguards where a qualified representative was appointed and provided meaningful assistance. The Honduran applicant had serious mental health diagnoses and sought withholding of removal and CAT protection based on fear of harm in Honduras.

The Board held that termination was unavailable in withholding-only proceedings and that the safeguards provided satisfied due process. The Board also found that the applicant did not establish a particularized risk of future persecution based on mental illness, or that he was more likely than not to be tortured. The appeal was dismissed.

The full text of Matter of C-L-R- can be found here: https://www.justice.gov/eoir/media/1449436/dl?inline

Eleventh Circuit Dismisses Standalone CAT Petition for Lack of Jurisdiction

The Eleventh Circuit has held that it lacks jurisdiction to review a standalone CAT denial where the petition for review does not challenge the underlying final order of removal. The petitioner, a Jamaican citizen with aggravated felony convictions, sought review only of the BIA’s denial of CAT deferral and expressly did not challenge DHS’s final administrative removal order.

The Court held that CAT review is available only through review of a final order of removal. Because the petition did not challenge that order, the Court dismissed for lack of jurisdiction. The Court agreed with the Ninth Circuit’s approach and disagreed with the Third Circuit’s contrary view.

The Court also held that the petitioner’s subsequent briefing on due process violations in his removal order did not cure the fact that the challenge was not raised in his pro se petition for review.

The full text of Hayles v. U.S. Attorney General can be found here: https://media.ca11.uscourts.gov/opinions/pub/files/202410516.pdf

BIA Finds Health Care Fraud Conviction Is a Particularly Serious Crime

The Board of Immigration Appeals has determined that a federal health care fraud conviction under 18 USC 1347 is a particularly serious crime. The respondent, a lawful permanent resident from Nigeria, had been convicted of health care fraud involving millions of dollars in loss and sought asylum, withholding, and CAT protection.

The Board concluded that health care fraud inherently involves deceitful conduct and can qualify as a particularly serious crime, even though it is a property offense. The Board noted that aggravated felonies are a category of crimes that are more likely to fall within the ambit of a particularly serious crime. The amount of loss, restitution, and the respondent’s role in the offense supported the particularly serious crime finding. The Board also upheld the denial of CAT protection, finding that the respondent had not shown that kidnapping or torture in Nigeria was more likely than not.

The full text of Matter of J-O-A- can be found here: https://www.justice.gov/eoir/media/1444231/dl?inline

BIA Vacates CAT Deferral Where Gang and Cartel Harm Was Speculative

The Board of Immigration Appeals has determined that a Mexican respondent did not establish eligibility for deferral of removal under the Convention Against Torture based on feared harm from the Sureños and the CJNG. The respondent claimed that he would be tortured because he had cooperated with U.S. authorities in 2009, but the Board found that the record did not establish a clear probability of torture.

The Board emphasized that the respondent had lived in Mexico for approximately 13 years after his cooperation without physical harm or direct contact from the feared actors, had relocated within Mexico without problems, and had not shown that any later threats or violence were connected to his cooperation beyond speculation. The Board also found that generalized evidence of cartel violence, impunity, and corruption did not establish that Mexican officials would consent to or acquiesce in the respondent's torture.

The full text of Matter of J-E-L- can be found here: https://www.justice.gov/eoir/media/1439331/dl?inline

BIA Undermines Expert Testimony

The Board of Immigration Appeals has again undermined the testimony of an expert witness, finding it insufficiently supported.

“First, the expert did not profess any direct knowledge of the extent to which China tortures those convicted of drug trafficking crimes abroad, nor did he articulate any past professional experience with death penalty cases in China or the way in which China implements the death penalty. Second, the expert noted in his report that ‘there is a paucity of statistics on torture and executions in China’ and ‘little official information on the handling of expatriated drug-traffickers.’ He also did not provide any meaningful estimations on the number of individuals sentenced to death or the percentage of those convicted of crimes who were sentenced to death. Although he cited a law journal article stating that 95 percent of death sentences in China involve drug crimes, intentional homicide, and robbery, this statistic was not broken down further as to how likely a person convicted of drug crimes was to receive the death penalty or the likelihood of that the death penalty would be inflicted on individuals, like the respondent, who were convicted of drug trafficking in another country.”

“The relevance and the reliability of an expert witness’ opinions are significantly undercut when those opinions are informed by anecdotal or inaccurate facts or data. Because the expert relied on two anecdotes that are not analogous to the respondent’s circumstances to support his prediction that the respondent would be detained and tortured due to his drug trafficking conviction in the United States, the Immigration Judge clearly erred in assigning significant weight to the expert’s opinion without reasonably considering the apparent deficient underlying factual basis.”

The BIA concluded that “[t]he general evidence of China’s harsh penalties for individuals convicted of drug trafficking crimes committed in China and the use of torture in Chinese prisons is insufficient to establish that the respondent will more likely than not be detained and tortured, extralegally or otherwise, based on his drug trafficking conviction in the United States.“

The full text of Matter of G-M-I- can be found here:

https://www.justice.gov/eoir/media/1426556/dl?inline

Fifth Circuit Affirms Agency's Determination that Harsh Prison Conditions in El Salvador are not Torture

The Fifth Circuit has affirmed the agency’s determination that harsh prison conditions in El Salvador do not constitute torture. Some of the agency’s conclusions include:

-evidence is not sufficient to show that the dismal and harmful conditions of detention are specifically intended to torture

- pursuant to El Salvador’s State of Exception, Fuentes-Pineda would likely be detained and imprisoned upon his arrival

-the IJ was “unable to speculate” that deaths in Salvadoran prisons were “the result of extreme cruel and inhuman treatment rather than other causes such as substandard conditions of prison”

-evidence that the government is attempting to obfuscate the number of deaths does not necessarily indicate these deaths were specifically intended, rather than the result of of negligence caused by the overcrowded conditions

-advertising the poor conditions as a deterrent to criminal conduct is not inconsistent with attempts to improve those conditions as they currently exist

The full text of Fuentes-Pineda v. Bondi can be found here: https://www.ca5.uscourts.gov/opinions/pub/24/24-60592-CV0.pdf

An amended opinion - which the BIA determines that El Salvador’s harsh prison conditions are not specifically intended by the government to inflict torture. And although Salvadoran police officers previously tortured Fuentes-Pineda on two occasions, the BIA justifiably determined his future risk of torture is only speculative - can be found here: https://www.ca5.uscourts.gov/opinions/pub/24/24-60592-CV1.pdf

BIA Reverses CAT Grant to Snitch

The Board of Immigration Appeals has determined that a non-citizen who cooperated with United States law enforcement against a cartel did not demonstrate a clear probability of torture because his fear was based on unsubstantiated statements from a coconspirator and generalized evidence of cartel violence.

The full text of Matter of J-C-A-G- can be found here: https://www.justice.gov/eoir/media/1420746/dl?inline

BIA Reverses CAT Grant to Haitian Applicant

The Board of Immigration Appeals has reversed a grant of protection under the Convention Against Torture to a Haitian applicant, finding that “anecdotal reports” (i.e., expert testimony) of Haitian prison guards taking bribes to withhold torture is not sufficient to show that it is more likely than not that the respondent himself will be tortured.

The full text of Matter of W-F- can be found here: https://www.justice.gov/eoir/media/1420631/dl?inline

Second Circuit Grants PFR for Guatemalan Ex-Gang Member Seeking CAT Protection

The Second Circuit has granted the petition for review of a Guatemalan ex-gang member, finding that the acquiesce to torture inflicted by other gang members in prison settings.

The full text of B.G.S. v. Bondi can be found here: https://ww3.ca2.uscourts.gov/decisions/isysquery/4efc466b-0c89-4622-8b1e-ff3fd98078ce/23/doc/23-6862_complete_opn.pdf

Third Circuit Remands Fear-Related Claims

The Third Circuit has remanded a Nigerian man’s fear-related claims, finding the agency failed to properly analyze the elements of conviction before concluding it was a particularly serious crime and finding that the agency failed to employ the proper CAT analysis.

The full text of Amos v. Attorney General can be found here:

https://www2.ca3.uscourts.gov/opinarch/222095p.pdf

Second Circuit Remands CAT Claim

The Second Circuit has remanded a tattooed Salvadoran man’s CAT claim, which the IJ had originally granted, finding the BIA gave insufficient justification under the clear error standard for disturbing the IJ’s decision.

The full text of Villalta Martinez v. Bondi can be found here:

https://ww3.ca2.uscourts.gov/decisions/isysquery/1cc5b830-c675-4753-8a34-321a78bedcdc/3/doc/24-115_opn.pdf

BIA Overturns CAT Grant to Uzbek National

The Board of Immigration Appeals has overturned a grant of protection under the Convention Against Torture to an Uzbek national despite evidence that he is likely to be detained upon arrival in Uzbekistan, finding that evidence of “ill treatment” and anecdotes of torture in Uzbek prisons were insufficient to show a clear probability of torture.

The full text of Matter of J-A- can be found here:

https://www.justice.gov/eoir/media/1415011/dl?inline

Ninth Circuit Remands CAT Claim for Mexican National, Declines to Apply Fugitive Disentitlement Doctrine

The Ninth Circuit has remanded an application for protection under the Convention Against Torture, citing the “extreme violence against individuals on the basis of perceived gang affiliation, deportee status, indigenous heritage, mental illness, and substance abuse. Petitioner has all of these characteristics, each of which would independently place him at risk of torture if he were removed to Mexico.” In addition, the Court declined to dismiss the petition for review under the fugitive disentitlement doctrine, citing the government’s delay of over two years from the petitioner’s missed appointment with ICE to the filing of the motion to dismiss and the government’s own evidence that the petitioner was likely in criminal custody, and thus, his whereabouts were likely known to the parties and the Court.

The full text of Uc Encarcion v. Bondi can be found here: https://cdn.ca9.uscourts.gov/datastore/opinions/2025/09/30/22-1601.pdf

Fourth Circuit Remands CAT Claim

The Fourth Circuit has remanded an application for protection under the Convention Against Torture filed by a disabled and mentally ill black Guyanese man, finding the agency “ignored relevant evidence relating to McDougall’s claims based on race, physical disability, and criminal-deportee status.”

The full text of McDougall v. Bondi can be found here:

https://www.ca4.uscourts.gov/opinions/231722.P.pdf

First Circuit Remands CAT Claim

The First Circuit has remanded a claim for protection under the Convention Against Torture filed by a Haitian citizen, on the ground that the Board of Immigration Appeals failed to address the risk that low-level prison officials would torture the applicant.

The full text of Fleurimond v. Bondi can be found here: https://www.ca1.uscourts.gov/sites/ca1/files/opnfiles/24-1913P-01A.pdf

BIA Reverses Grant of CAT to Bisexual Individual with Gang Tattoos and Criminal History from El Salvador

The Board of Immigration Appeals has reversed a grant of protection under the Convention Against Torture to a bisexual Salvadoran with a criminal history and gang tattoos.

“The Immigration Judge did not clearly err in finding that the applicant is a bisexual criminal deportee with visible gang tattoos. Further, the Immigration Judge did not clearly err in finding that if the applicant is removed, he will likely be detained upon his arrival in El Salvador pursuant to the state of exception policy because he will be identified as a suspected gang member deported from the United States with numerous gang-related tattoos and a criminal history. The record establishes that the applicant has a serious criminal history in the United States, and the information about his criminal history would likely be shared with the Salvadoran Government through the Criminal History Information Sharing Program between the United States and El Salvador. Further, the evidence establishes a history of widespread detention of prior and suspected gang members in El Salvador.”

“In finding that the applicant would suffer harm satisfying the definition of torture in detention, the Immigration Judge relied heavily on statistical information and country conditions evidence showing that some detainees and suspected gang members have been subjected to mistreatment, torture, or death while in detention. However, the Immigration Judge relied on a relatively small number of anecdotal incidents of mistreatment or death that fall well short of supporting a clear probability of torture. Overall, out of a total prison population of approximately 95,000 detainees as of November 2022, the Salvadoran Government documented 90 deaths in custody, some of which were attributable to lack of access to medication. Even if the actual number of abuses and deaths is higher than that documented by the Salvadoran Government, the evidence still demonstrates that only a small percentage of detainees died out of the tens of thousands detained.”

“Moreover, the Immigration Judge’s finding that numerous detainees have died in detention does not establish that public officials caused those deaths or that the unspecified human rights abuses rise to the level of torture. The substandard prison conditions referenced by the Immigration Judge, which may include severe overcrowding and lack of food, do not amount to torture as a matter of law unless ‘specifically intended to inflict severe physical or mental pain or suffering.’”

The full text of Matter of A-A-F-V- can be found here:

https://www.justice.gov/eoir/media/1406751/dl?inline

BIA Reverses CAT Grant to Russian Citizen

The Board of Immigration Appeals has reversed a grant of protection under the Convention Against Torture to a Russian citizen who was supportive of Ukraine and who had twice been detained by the FSB, finding that the record supported the Immigration Judge’s finding that the applicant might be detained and interrogated upon arrival in Russia, there was insufficient evidence that this treatment would rise to the level of torture.

The full text of Matter of E-Z- can be found here:

https://www.justice.gov/eoir/media/1407026/dl?inline