The Board of Immigration Appeals (BIA) — the DOJ tribunal that reviews immigration decisions — issued a precedent opinion this week in Matter of J-E-L-, reversing an immigration judge’s grant of deferral of removal under the Convention Against Torture (CAT) to a Mexican national who had informed on Mexican cartels to U.S. authorities. It’s a major opinion, because it puts adjudicators on notice about the rigorous standards for what is usually the “last option” for dangerous aliens seeking to remain in the United States.
Asylum, Statutory Withholding, and CAT
While most people commonly refer to all forms of humanitarian protection under the Immigration and Nationality Act (INA) as “asylum”, that is only one of three laws that protect aliens who fear harm abroad.
Briefly, asylum under section 208 of the INA is an immigration benefit or “relief” from removal that is available to aliens in the United States, and an asylum grant places an alien on a path to a green card and citizenship.
To be granted asylum, an alien must first file a Form I-589, “Application for Asylum and for Withholding of Removal” with either USCIS (if the alien is not in removal proceedings) or with the immigration court (if the alien is in proceedings), along with any supporting documentation, such as affidavits or police or medical reports.
An I-589 filed with USCIS is known as an “affirmative” asylum application, whereas one filed with an immigration judge at a removal hearing is referred to as a “defensive” application, but an affirmative I-589 can become a defensive one if USCIS refers the application to an immigration judge in removal proceedings.
To be granted asylum, aliens must demonstrate that they satisfy the “refugee” definition in section 101(a)(42)(A) of the INA by showing they either suffered past “persecution” or have a “well-founded fear of” future persecution on account of one of five “grounds”: race, religion, nationality, “membership in a particular social group”, or political opinion.
Poverty, war, food shortages, “climate change”, etc. don’t count, and the statutory requirement that the fear be on account of one of the five grounds is commonly called the “nexus requirement”.
There are, however, a number of “exceptions” to an asylum grant, including where the alien has engaged in persecution, has been convicted of “a particularly serious crime” (including an aggravated felony), has committed a “serious nonpolitical crime outside the United States”, is a threat to the national security, is removable on terrorism grounds, or was “firmly resettled” elsewhere before coming here.
In addition, asylum is a discretionary benefit, so even if the alien shows statutory eligibility for that protection, an adjudicator may still deny asylum “in the exercise of discretion”.
By contrast, withholding of removal under section 241(b)(3) of the INA, commonly referred to as “statutory withholding”, is “mandatory”, meaning the adjudicator must grant it to an alien who shows statutory eligibility for the protection.
To be granted statutory withholding, aliens must again file an I-589 and demonstrate a “substantial likelihood” (i.e., that it’s “more likely than not”) they will be persecuted if returned based on one of the same five factors: race, religion, nationality, membership in a particular social group, or political opinion.
There are slightly different exceptions to statutory withholding, barring protection to an alien who: has engaged in persecution, has been convicted of a particularly serious crime, has committed a serious nonpolitical crime outside the United States, or is a danger to the national security.
Aliens convicted of an aggravated felony or felonies for which an “aggregate term of imprisonment of 5 years” or more is imposed are deemed to have been convicted of a particularly serious crime for statutory withholding, but other offenses and aggravated felonies for which the alien received a lesser sentence may also bar a statutory withholding grant as “particularly serious” crimes.
To receive statutory withholding, the immigration judge must first order the alien removed and then “withhold” removal to one or more designated countries, meaning DHS may remove that alien to any other country willing to accept the alien.
Finally, aliens granted statutory withholding may work but aren’t eligible to receive green cards or U.S. citizenship.
Then there’s CAT, a protection that is not found in the INA but rather in the regulations implementing the act, which applicants again apply for using the I-589.
Unlike asylum and statutory withholding, there is no nexus requirement for CAT, though like statutory withholding, CAT is mandatory, not discretionary, and must be granted to any alien who satisfies the regulatory requirements.
That said, the burden of proof for CAT is high, requiring aliens to show it’s more likely than not they will be tortured “by, or at the instigation of, or with the consent or acquiescence of, a public official acting in an official capacity or other person acting in an official capacity”.
There are two separate forms of CAT protection, “withholding of removal under CAT” and “deferral of removal under CAT”, the former for aliens who would not be barred under the exceptions to statutory withholding set forth above, and the latter for aliens who would be barred under those exceptions.
As with statutory withholding, an immigration judge must order an alien removed before withholding or deferring removal under CAT to a specified country or countries (again, meaning they may be sent elsewhere), and neither a grant of CAT withholding nor CAT deferral entitles an alien to any additional immigration benefit aside from work authorization.
Matter of J-E-L-
As the foregoing suggests, CAT deferral is usually the only option available to aliens barred from any form of protection or relief under the INA due to criminal or terrorist activity, persecution of others, or a threat the alien poses to national security.
Or, as I put it last September: “Had Osama bin Laden lived to make it to the United States, he almost definitely would have been granted deferral here.”
And it was the sole protection the alien respondent in Matter of J-E-L- (a Mexican national who entered the United States in November 2023 under the Biden administration’s CBP One app interview scheme) sought, although that opinion fails to explain why he was barred from other forms of relief despite the fact that he has a U.S. citizen wife and children, who resided with him in Mexico between 2018 and 2023.
When J-E-L- was last in the United States, in 2009, he “worked with authorities” here “to incarcerate two gang members, one of whom is the respondent’s relative”, after which he was removed to Mexico, where he remained for the next 13 years.
During his residence on the other side of the border, he “received threats via phone calls and posters”, and his house was shot at twice, once in 2010 when he was living in Zacatecas and again in 2015 when he resided in Jalisco.
Each time he received threats, he moved within Mexico, and although neither he nor his family had any contact with the individuals who sent him those threats, J-E-L- believes members of two cartels, the Surenos and the Jalisco Cartel New Generation (CJNG) were responsible.
J-E-G- and his wife went to the public ministry in March 2023 to tell the authorities about the threats. “The following month”, the BIA explained, J-E-G- “was kidnapped outside his home in Jalisco”, though “he does not know who kidnapped him”.
His kidnappers detained him “for several days” during which time he was “mistreated”, but he “managed to escape” and relocated to Colima, “where he had no problems”.
It wasn’t until seven months later, after receiving a port appointment using the CBP One app, that J-E-L- left Mexico after living in Colima “where he had no problems”.
The immigration judge found J-E-L- to be credible, and granted him CAT deferral, a decision that DHS appealed.
The “Forward-Looking” Inquiry
In its opinion, the BIA explained, “The inquiry into whether a respondent is eligible for CAT protection is forward-looking”, requiring the adjudicator to consider “all evidence relevant to the possibility of future torture”, which includes:
evidence of past torture, evidence that the respondent could relocate to another part of the prospective country of removal where he is not likely to be tortured, and evidence of gross, flagrant, or mass violations of human rights within the country of removal.
The immigration judge concluded the past mistreatment J-E-L- alleged failed to rise to the level of torture, but also “found there to be an escalating pattern of violence against him and ... that he would be unable to relocate to avoid harm by the CJNG and the Surenos”.
The BIA reversed, noting J-E-L- “lived in Mexico for approximately 13 years without any physical harm or direct contact with cartel or gang members despite the threats and the shootings”, didn’t “allege any in-person contact with cartel or gang members in Mexico until the kidnapping in 2023”, never saw who shot at his residences and left the threats, and admittedly didn’t know who the kidnappers were.
In addition, the BIA found that while:
The Immigration Judge discussed the country conditions evidence, finding that it illustrated high levels of violence perpetrated by criminal organizations, high levels of impunity, targeting of perceived informants, and collusion between public officials and criminal elements ... this evidence is not particularized to the respondent or his situation. Moreover, the country conditions evidence does not reflect that the CJNG and the Surenos control all territory in Mexico.
Finally, as J-E-L-‘s CAT claim is premised on “his fear of cartel and gang members”, not Mexican public officials, the BIA held that even if it were to assume he “faced an individualized risk of harm rising to the level of torture based on his ties to the CJNG and the Surenos”, it would still have denied respondent’s application because he failed to carry his burden of establishing “the harm he fears by gang or cartel members would be inflicted with the consent or acquiescence of a public official”.
Many if not most Mexican CAT applicants assert that the cartels there collude with the government and thus argue that harm by the cartels is either inflicted with the “willful blindness” of public officials or at their direct behest.
The Board here found “no specific evidence” of such collusion and specifically noted that the respondent went to the authorities just once in 13 years and was able to file a police report about the threats he had received — suggesting no ties between the government and the source of those threats.
Putting CAT Adjudicators on Notice
Based on the facts and evidence, the BIA concluded the immigration judge had erred in relying on “unsupported inferences” in concluding “a public official would more likely than not consent or acquiesce to” any torture J-E-L- may be subjected to if returned to Mexico.
CAT deferral is the only option for many dangerous aliens seeking to avoid removal, and in Matter of J-E-L-, the BIA made clear the standards for that extraordinary protection are rigorous, and that adjudicators should avoid allowing conjecture to take the place of evidence when weighing such claims.