On February 26, 2020, U.S. Attorney General (AG) William Barr directed the Board of Immigration Appeals (BIA or Board) to refer the instant case to him for review of its decision per 8 C.F.R. §1003.1(h)(1)(i), vacating that decision and remanding the case to the BIA for review by a three-member panel. DHS seeks to remove Respondent to Mexico, but Respondent contends that upon his return, he will be sent to a mental health care facility whose poor conditions rise to the level of “torture”. Respondent seeks deferral of removal under CAT; he is ineligible for asylum or withholding of removal because of a prior conviction for attempted sexual abuse of a child.
To qualify for deferral, noted the AG, Respondent must prove that it is more likely than not that he will be tortured if removed to the proposed country of removal, citing 8 C.F.R.§1208.16(c)(2). Here, the Board had dismissed DHS’s appeal of the IJ’s decision granting deferral, concluding there was a clear error in that determination,i.e., “that it is more likely than not that he will be tortured by or at the instigation of with the consent or acquiescence (including willful blindness) of a public official or of another other person acting in an official capacity in Mexico.”
The AG held that the BIA decision was “contrary to law” because, although the Board reviews an IJ’s factual findings for clear error, it reviews de novo questions of law, discretion, and judgment and all other issues in appeals, including the application of law to fact. The BIA had improperly merged the factual and legal question presented by Respondent’s claim that he was likely to be tortured in Mexico, concluded the AG, reasoning that while the IJ’s prediction of what was likely to happen to Respondent if removed may have been a factual determination reviewed only for clear error, whether that predicted outcome satisfies the regulatory definition of “torture” constitutes a “legal judgment” subject to de novo review, as it necessarily involves applying the law to decided facts.
The AG thus ordered the Board on remand to consider de novo whether the deprivations that the IJ found Respondent likely to experience in Mexico “would rise to the level of torture under the governing CAT regulations and the relevant precedents.” In doing so, it must remember that, to constitute “torture,” as act must be specifically intended to inflict severe physical or mental pain or suffering, citing to 8 C.F.R. §1208.18(a)(5). Additionally, the Board “should further address the remaining elements of the legal definition of torture, again considering de novo whether the facts as found” by the IJ “are sufficient to establish each element.” Among other things, Respondent must prove that the Mexican health workers who are alleged to engage in torture would do so by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. Respondent must also show that these healthcare workers would be motivated by such purposes as obtaining from him or her or a third person information or a confession, punishing him or her for an act he or she or a third person has committed or is suspected of having committed, or intimidating or coercing him or her or a third person or for any reason based on discrimination of any kind. Absent these determinations, held the AG, “a claim for protection from removal under the CAT must fail.” Matter of R-A-F-, 27 I&N Dec. 778 (A.G. 2020).