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

BIA Reverses CAT Grant to Mentally Ill Haitian Man with Criminal Record

The Board of Immigration Appeals has reversed a grant of protection under the Convention Against Torture to a severely mentally ill Haitian man, deemed incompetent in removal proceedings. The BIA noted that the expert witness “could not estimate how many criminal deportees were incarcerated or killed in 2022 or 2023. Anecdotal reports of some criminal deportees being indefinitely detained in torturous conditions are insufficient to establish that the respondent is more likely than not to have that experience.“ The BIA also noted that the prison officials in Haiti lack an understanding of mental illness. Therefore, “[t]he respondent’s failure to show that Haitian officials are intentionally and deliberately creating and maintaining the harsh detention conditions that he fears for the specific purpose of inflicting severe pain or suffering warrants reversal of the grant of his application for CAT protection.”

The full text of Matter of S-S- can be found here:

https://www.justice.gov/eoir/media/1407581/dl?inline

Ninth Circuit Finds that Conviction for Shooting at Inhabited Dwelling is CIMT

The Ninth Circuit has determined that a California conviction for shooting an inhabited dwelling is a crime involving moral turpitude. “California Penal Code section 246 requires an intentional shooting of a firearm, that is, the use of a deadly weapon, in circumstances that necessarily pose a significant risk of bodily harm to another. We hold that the BIA correctly concluded that section 246 categorically qualifies as a crime involving moral turpitude.”

In addition, the Court determined that whether evidence is “new” for the purposes of a motion to reopen is a legal question over which the federals court have jurisdiction to review. The Court similarly concluded that it had jurisdiction to review whether an applicant has established a prima facie case for relief.

The decision also contained a detailed analysis regarding the petitioner’s competency and eligibility for protection under the Convention Against Torture.

The full text of Lemus-Escobar v. Bondi can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2025/06/16/18-73423.pdf

BIA Addresses Government Acquiescence to Torture

The Board of Immigration Appeals has determined the acquiescence standard for CAT protection differs from the unable-or-unwilling standard for asylum and withholding of removal; the potential for private actor violence coupled with a speculation that police cannot or will not help is insufficient to prove acquiescence.

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

https://www.justice.gov/eoir/media/1400351/dl?inline

BIA Reverses CAT Grant to Former Gang Member

The Board of Immigration Appeals has reversed a grant of deferral of removal under the Convention Against Torture to a Salvadoran former gang member. While acknowledging that perceived gang members are subject to widespread arrest in El Salvador, the Board stated that, “[t]he evidence the Immigration Judge relied upon does not evaluate whether there are characteristics or circumstances that make certain classes of detainees, such as deportees from the United States, any more or less likely to be victims of torture. Further, the applicant has not shown that the majority of current or former gang members detained in El Salvador are likely to suffer harm satisfying the legal definition of torture, such that he would need to show nothing more than gang affiliation and a likelihood of detention to meet his burden of proof.”

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

https://www.justice.gov/eoir/media/1397466/dl?inline

Fourth Circuit Reverses BIA Denial of CAT to Honduran Man Attacked by Gang Members

The Fourth Circuit has reversed the Board of Immigration Appeals’ reversal of an Immigration Judge’s grant of protection under the Convention Against Torture. The applicant was shot by gang members and his family members threatened and attacked by gang members. During one of these incidents, the gang members were accompanied by a man in a military uniform.

The full text of Funez-Ortiz v. McHenry can be found here: https://www.ca4.uscourts.gov/opinions/232290.P.pdf

First Circuit Remands CAT Claim

The First Circuit has remanded a Convention Against Torture case, finding that the agency applied an erroneous standard by relying solely on “the fact that the government has taken some responsive action to combat private violence.”

“More to the point, looking only to whether a government takes some responsive action to prevent private violence fails to account for instances where a foreign government takes some measures but still does not satisfy its legal duty to intervene. Sometimes, despite having taken some action, a government may still have a legal responsibility to do more.. That is why we require the agency to address whether the government's actions demonstrate that it will adequately meet its legal responsibility to intervene. Addressing this part of the inquiry is especially important where a government's preventative actions have been ineffective.”

The full text of Akinsanya v. Garland can be found here:

https://www.ca1.uscourts.gov/sites/ca1/files/opnfiles/24-1412P-01A.pdf

Ninth Circuit Holds that Abuse in US not Relevant to CAT Analysis

The Ninth Circuit has determined that the agency is not required to consider child abuse that took place in the United States when considering whether a deported parent is likely to torture their child in their country of origin.

The full text of GC v. Garland can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2024/07/30/21-1228.pdf

BIA Confirms that Rape is Torture

The Board of Immigration Appeals has confirmed that rape is a torture and is not a lawful sanction. “Rape clearly rises to the level of torture. It is an extreme form of cruel and inhuman treatment’ that causes severe pain or suffering and is therefore mistreatment sufficiently severe to qualify for protection under the CAT where the other elements are established. As the Immigration Judge noted, torture does not include pain or suffering arising from lawful sanctions. However, a lawful sanction must be judicially imposed or otherwise authorized by law. While incarceration is a lawful sanction, rape by fellow inmates is not. Additionally, a lawful sanction cannot ‘defeat the object and purpose of the Convention Against Torture to prohibit torture. Thus, rape is sufficiently severe to constitute torture and can never be a lawful sanction under the CAT.”

The full text of Matter of H-C-R-C- can be found here:

https://www.justice.gov/d9/2024-06/4077.pdf

Sixth Circuit Endorses Holistic Approach to CAT Determination

Following the Seventh Circuit’s lead, the Sixth Circuit has adopted a holistic analysis - rather than a statistics-based one - for determining whether a non-citizen faces a clear probability of torture.

The full text of Saleh v. Garland can be found here:

https://www.opn.ca6.uscourts.gov/opinions.pdf/24a0102p-06.pdf

Sixth Circuit Adopts Aggregate Risk Analysis in CAT Context

The Sixth Circuit has adopted the aggregate risk analysis in Convention Against Torture cases, requiring that adjudicators consider if the risk of torture from all possible sources exceeds fifty percent.

The full text of Abdulahad v. Garland can be found here:

https://www.opn.ca6.uscourts.gov/opinions.pdf/24a0082p-06.pdf

BIA Discusses "Under Color of Law" for CAT

The Board of Immigration Appeals has abandoned its prior “rogue official” formulation for Convention Against Torture claims, and refocused on whether an official was acting under color of law when inflicting torture. “An act that is motivated by personal objectives may be under color of law when the actor uses his or her official authority to further those objectives.” “[I]t is key to consider whether he or she was only able to accomplish the acts of torture by virtue of holding official status. In evaluating if a public official acted under color of law, circuit courts have often relied on whether the actor’s government connections provided physical access to the victim, or to the victim’s whereabouts or other identifying information.” “Also relevant to, but not dispositive of, the ‘under color of law’ analysis is whether a law enforcement officer was on duty and in official uniform at the time of the torturous conduct.” “Another relevant consideration in determining whether an official’s conduct is under color of law is whether the official threatened and had the ability to retaliate through governmental channels if the victim reported the conduct to authorities.”

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

https://www.justice.gov/eoir/page/file/1592801/download

First Circuit Reverses Agency for Discrediting Expert

The First Circuit has remanded a CAT claim in which the agency discredited an expert’s opinion without sufficient reason.

The full text of G.P. v. Garland can be found here:

http://media.ca1.uscourts.gov/pdf.opinions/21-2002U-01A.pdf

Ninth Circuit has Determined that South Korea's Extra-Territorial Prosecution Law is Not Torture

The Ninth Circuit has determined that South Korea’s extraterritorial-jurisdiction law, allowing it to re-prosecute its citizens for crimes committed and punished outside of South Korea, is not inherently torturous.

The full text of Park v. Garland can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2023/06/29/21-70623.pdf

First Circuit Remands Torture Case

The First Circuit has remanded a claim for protection under the Convention Against Torture, finding that harm inflicted was severe enough to constitute torture. “The assailants not only beat Hernandez-Martinez senseless; they also sliced his waist with a knife and intentionally burned the flesh on his foot as they repeated their threats, sending him unconscious to a hospital where he remained for three to four days.”

The full text of Hernandez-Martinez v. Garland can be found here:

http://media.ca1.uscourts.gov/pdf.opinions/21-1448P-01A.pdf

Eighth Circuit Reverses Denial of CAT to Applicant with Cognitive Deficiencies

The Eighth Circuit has determined that the Board provided insufficient reasoning for reversing the grant of CAT protection to an applicant with an IQ of 55 who had been threatened with death by gang members in El Salvador.

The full text of Alvarez-Gomez v. Garland can be found here:

https://ecf.ca8.uscourts.gov/opndir/22/12/212279P.pdf

Second Circuit Clarifies CAT Standard

The Second Circuit has determined that acquiescence to torture by any official is sufficient to warrant protection under the Convention Against Torture. “Where, as here, the primary perpetrator of likely harm is a gang, the relevant state action question (should the BIA reach it) is whether any public official, or any other person, including low-level local police officers, when acting under color of law, will participate or acquiesce in harm that the gang is likely to inflict and that is recognized as torture under section 1208.18(a).”

The full text of Garcia-Aranda v. Garland can be found here:

https://www.ca2.uscourts.gov/decisions/isysquery/b71fbe28-045a-4166-b765-a790b8752b29/6/doc/18-2281_opn.pdf#xml=https://www.ca2.uscourts.gov/decisions/isysquery/b71fbe28-045a-4166-b765-a790b8752b29/6/hilite/

First Circuit Rejects Willful Acceptance Standard for CAT

The First Circuit has determined that the Board of Immigration Appeals’ use of a “willful acceptance” instead of a “willful blindness” standard in Convention Against Torture cases is unlawful. The court also noted that the question of whether a government official’s conduct constitutes acquiescence to torture is a question of law, subject to de novo review in the court of appeals. Finally, the court remanded for further consideration of whether MS-13 is a de facto government actor.

The full text of H.H. v. Garland can be found here:

http://media.ca1.uscourts.gov/pdf.opinions/21-1150P-01A.pdf

Ninth Circuit Remands CAT Claim for Petitioner Viciously Beaten by Police

The Ninth Circuit has determined that a man who was viciously beaten by a group of men that included two police officers established that he was tortured by government officials.

The full text of De Leon Lopez v. Garland can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2022/10/21/20-71529.pdf