If DOJ expects immigration judges (IJs) to dig themselves out of the 3.8 million case backlog they are in, the attorney general and the Board of Immigration Appeals (BIA) must provide the trial-level courts with “brightline” rules they can follow in adjudicating claims. On February 4, the BIA did just that when it issued an opinion that provides guidelines for assessing so-called “expert witness” evidence in removal cases. To be fair, however, what the Board had to say is so straightforward it raises the question of why the IJ ever trusted the “expert” to begin with.
CAT Deferral
The opinion in question is Matter of G-M-I-, a case that involved an application for deferral of removal under the Convention Against Torture (CAT).
“CAT deferral” is generally the relief of last resort for aliens facing removal, because unlike any other immigration protection (like asylum) or benefit (like adjustment to lawful permanent residence), there are no bars whatsoever that prevent an alien from seeking such relief.
As I explained in September, “Had Osama bin Laden lived to make it to the United States, he almost definitely would have been granted deferral here.”
“To qualify for CAT protection”, as the BIA explained in its April 2025 decision in Matter of N-N-B-, an alien “must demonstrate that it is more likely than not that he will be tortured by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity” if returned home (emphasis in original).
In other words, the simple possibility that an alien may be subjected to torture if removed is insufficient, as is the fact that the country in question has a spotty (or worse) human rights record. The evidence must show something greater than a 50 percent possibility torture will occur.
G-M-I-
The respondent in the case, G-M-I-, is a Chinese national who was convicted in 2014 for “conspiracy to import 150 kilograms or more of cocaine into the United States” — an aggravated felony under sections 101(a)(43)(B) and (U) of the Immigration and Nationality Act (INA) — for which he was sentenced to 14 years in prison.
Because he has been convicted of an aggravated felony, G-M-I- would be barred from receiving asylum (under section 208(b)(2)(B) of the INA), and because he received a sentence of at least five years for that offense, from a grant of “statutory withholding” or “CAT withholding” (under section 241(b)(3)(B) of the INA), as well.
CAT deferral was G-M-I-‘s last option, and the relief from removal he sought.
Expert Opinion in Removal Proceedings
In removal proceedings, IJs are both the triers of law and of fact, meaning they must first make factual determinations and then apply those determinations to the legal standards in the INA, the regulations, and precedent, both with respect to removability and to any relief the alien may seek from removal.
When aliens apply for humanitarian protections like asylum and CAT, that generally requires sifting through reams of documents and hours of testimony to identify the key facts upon which the IJ can determine what harm, if any, the alien is likely to face if returned.
Expert testimony can aid factual determinations, as the BIA has recognized, when the IJ is considering a matter about which the judge “possesses little or no knowledge or substantive expertise”, such as on a technical, scientific, or medical issue.
The opinions of experts are less helpful, in my experience, on questions where there is generally a good deal of objective and reliable documentary evidence, like country conditions or legal standards abroad.
Nevertheless, expert evidence is admissible in removal proceedings provided it is probative and “based on sufficient facts or data” the expert “has been made aware of or personally observed” or has derived from sources “experts in the particular field would reasonably rely on.”
Matter of G-M-I-
In support of his CAT deferral application, G-M-I- offered two affidavits and testimony from an unnamed expert.
The expert concluded G-M-I- “is more likely than not to face torture or execution upon removal to China, based on” his “assessment that (1) China routinely subjects individuals convicted of serious drug trafficking crimes to torture and death and (2) China will know of the respondent’s removal in advance”.
As the BIA explained:
The evidentiary basis underlying the expert’s predictive inference, as outlined in his affidavits, includes articles describing China’s hard line against drug trafficking crimes as a threat to public safety and the country’s concern for its global reputation, China’s relatively high use of the death penalty, and China’s ability to track and monitor citizens and entrants with an extensive surveillance apparatus.
So far, so good.
The IJ accorded the expert’s opinion “full weight” and relied on it in concluding the People’s Republic of China (PRC) “would detain and torture” G-M-I- “upon his return for committing drug crimes and causing reputational damage to China”. Having made those findings, the IJ granted the alien CAT deferral.
The government appealed, challenging both the weight the IJ accorded to the expert witness’s testimony and the CAT deferral grant generally.
The BIA sustained the government’s appeal and reversed the IJ, concluding the expert witness’s opinions lacked a “sufficient factual basis”, on two separate grounds.
First, the expert failed to show he had any “direct knowledge of the extent to which China tortures those convicted of drug trafficking crimes abroad” and also failed to “articulate any past professional experience with death penalty cases in China or the way in which China implements the death penalty”.
Second, he admitted that there wasn’t much in the way of statistics on torture or executions in the PRC and “little official information on the handling of expatriated drug-traffickers”, and moreover “failed to 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”.
Curiously, the anecdotal information he offered was either irrelevant (the abduction of a “tycoon” from a hotel room in Hong Kong in 2017) or inaccurate.
Specifically, the expert contended that a Canadian national was “immediately arrested” after arriving in China following a drug-related conviction in Canada, but as the BIA noted:
This incident did not concern a Canadian national arrested and convicted in Canada for drug-related crimes in Canada, as the expert asserts, but rather a Canadian citizen who was arrested and convicted in a Chinese court for trafficking drugs in China — a fact pointed out by DHS in its opening statement.
“The Relevance and Reliability of an Expert Witness’ Opinions Are Significantly Undercut”
Not surprisingly, the Board held: “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.” Such guidance is helpful, but that the BIA had to offer it just shows how lax certain judges had become — and why there’s a backlog of 3.8 million pending removal cases.