BIA: ‘Isolated Incidents of Torture’ Not Sufficient to Support CAT Claim

The Board of Immigration Appeals (BIA) – the DOJ tribunal that reviews immigration judges’ decisions – last week published a precedential opinion, Matter of J-A-. The BIA concluded that evidence of “isolated incidents of torture” are insufficient to support an Uzbekistani national’s request for protection under Article III of the Convention Against Torture (CAT) – providing a needed refresher for adjudicating one of the most complicated forms of immigration relief. 

Humanitarian Relief

As I’ve explained elsewhere, three related and yet distinct forms of humanitarian relief are available to aliens facing removal: 1) asylum under section 208 of the Immigration and Nationality Act (INA); 2) “withholding of removal” under section 241(b)(3) of the INA; and 3) protection under CAT. 

Asylum applicants must show proof of past persecution or a “well-founded fear” of persecution based on race, religion, nationality, “membership in a particular social group”, or political opinion. 

Withholding of removal – also referred to as “statutory withholding” – like asylum also requires proof of persecution based on one or more those five grounds, but proving eligibility requires the applicant to bear a higher burden of proof (“clear probability” of persecution) and provides fewer benefits aside from work authorization and protection from removal to a designated country or countries. 

And an immigration judge or the BIA must first order an applicant for statutory withholding removed before granting that protection.

CAT Protection

CAT protection, on the other hand, doesn’t focus so much on the reasons for claimed abuse as it does on the sources and nature of that abuse. Let me explain. 

Like statutory withholding, CAT is country-specific and is only available to aliens ordered removed. 

But CAT does not require an applicant to prove an alleged torturer is or will be motivated by the applicant’s race, religion, nationality, membership in a particular social group, or political opinion, though it does protect against “severe pain or suffering” imposed “for any reason based on discrimination of any kind”.

CAT protection isn’t in the INA, though regulations implementing the INA also govern CAT relief. Rather, it flows from the United States’ ratification of the U.N. Convention Against Torture on October 21, 1994.

Our government’s ratification of CAT was not “self-executing”, though, and required congressional legislation to make it effective.

That implementing legislation was section 2242 of the Foreign Affairs Reform and Restructuring Act of 1998 (FARRA), which made it U.S. policy “not to expel, extradite, or otherwise effect the involuntary removal of any person to a country where there are substantial grounds for believing that the person would be in danger of being subjected to torture.” 

FARRA did not expressly explain how that policy was to be implemented, however, leaving it up to the “appropriate” executive-branch agencies to enact regulations to enforce CAT protections.

Initially, responsibility for enforcing CAT restrictions on removal fell on the former Immigration and Naturalization Service (INS), with INS officers making torture determinations immediately before they removed aliens.

In February 1999, however, DOJ published regulations assigning immigration judges the responsibility for adjudicating CAT claims in conjunction with other applications for relief, like asylum and statutory withholding. 

Those regulations also created two different forms of CAT protection: withholding of removal under CAT (hence why withholding of removal under section 241(b)(3) of the INA is called “statutory withholding”); and CAT deferral.

The latter is a more limited form of protection for applicants barred from statutory withholding under section 241(b)(3)(B) of the INA, because (for example) they are persecutors, have been convicted of particularly serious crimes, or pose a danger to the national security of the United States.

In essence, no matter how significant a danger aliens pose to national security or the community, or whatever horrible acts they have committed, they can be granted CAT deferral. removal. (Had Osama bin Laden lived to make it to the United States, he almost definitely would have been granted deferral here.)

The vague legislative directive in FARRA aside, CAT protection is implemented by regulations at 8 C.F.R. §§ 1208.16 (CAT withholding), 1208.17 (deferral), and 1208.18 (definitions and general standards). 

Most basically, paragraph (a)(1) of the latter regulation defines “torture” for purposes of CAT as: 

any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for 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 . . . has committed or is suspected of having committed, . . . intimidating or coercing him or her, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted 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. Pain or suffering inflicted by a public official who is not acting under color of law shall not constitute pain or suffering inflicted 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 . . . . (Emphasis added.) 

In other words, harm is only torture for purposes of CAT when (1), it is “severe” and (2), there’s official government involvement or acquiescence in the act. 

In addition, “pain or suffering arising only from, inherent in or incidental to lawful sanctions” doesn’t satisfy that standard, and such harm must be intentionally inflicted to qualify; “an act that results in unanticipated or unintended severity of pain and suffering is not torture” under the regulations. 

The burden for CAT protection – both withholding and deferral – under 8 C.F.R. §1208.16(c)(2) is high, requiring the applicant to “to establish that it is more likely than not that he or she would be tortured if removed to the proposed country of removal”. (Emphasis added.) 

Evidence such as past torture or “gross, flagrant or mass violations of human rights within the country of removal, where applicable” is relevant to that analysis, as is the applicant’s ability to safely relocate within the country of removal.

Matter of J-A-

J-A- is an Uzbekistani national, and while it’s not clear from the BIA’s opinion where and how he entered the United States, he was here in April 2024 when was arrested pursuant to an Interpol Red Notice. 

DHS thereafter placed him into removal proceedings, where he sought asylum, statutory withholding, and withholding and deferral under CAT. 

J-A- claimed that prior to his arrival here, “Uzbek Government officials orchestrated his arrest in Russia based on false allegations that he joined an online group affiliated with a terrorist organization”, leading to him being detained in that country for a year while Uzbekistan sought his extradition. 

He alleged he thereafter traveled to Turkey “where six men with Uzbek accents attacked and tried to kidnap him”, apparently unsuccessfully.

The immigration judge denied J-A- asylum and statutory withholding, concluding he “was not a credible witness and did not present sufficient, reliable, and persuasive evidence to rehabilitate his noncredible testimony”. 

The immigration judge also denied application for CAT withholding, as per the BIA, after determining J-A- “presents a national security risk and is thereby barred from” that protection, but granted him deferral under CAT – which, as noted, is not subject to any regulatory restrictions.

Despite the aforementioned credibility issues, and the fact J-A- did not claim to have suffered torture in Uzbekistan in the past, the immigration judge reasoned he “will more likely than not be detained immediately upon his return to Uzbekistan and subjected to torture by Uzbek Government officials”. 

On that basis, the immigration judge granted him CAT deferral.

The BIA Reverses

The BIA affirmed the immigration judge’s denial of asylum, statutory withholding, and CAT withholding, but reversed the lower court’s CAT deferral grant. 

It concluded the immigration judge erred in conflating the likelihood of J-A- being detained in Uzbekistan and prosecuted for his alleged ties to terrorism (which based upon the sparse record provided is highly likely) with the probability “he will face harm rising to the level of torture”. 

In reaching that conclusion, the immigration judge apparently relied on a European Court of Human Rights (ECHR) decision finding the “existence of substantial grounds for believing that the applicant faces a real risk of ill-treatment”, though it’s not clear whether that decision related to J-A-. 

The BIA concluded, however, that ECHR’s “real risk” finding was insufficient to meet the “more likely than not” burden of proof for CAT under U.S. law. 

In addition, the BIA held that the immigration judge “erred in his analysis by relying upon a ‘relatively small number of anecdotal incidents of mistreatment or death that fall well short of supporting a clear probability of torture.’”

Many countries fail to protect their citizens, especially those deemed security risks, to the degree the United States does. That, however, does not mean that any resulting harm is “torture” as defined or more likely than not to occur in a given case. 

Most significantly, the BIA concluded that the immigration judge also “erred in analyzing whether” J-A- “demonstrated that Uzbek Government officials have a specific intent to torture him”. 

As the BIA concluded: “Even assuming [J-A-] will be detained upon removal to Uzbekistan, the Immigration Judge’s decision does not provide a sufficient basis for concluding that the Uzbek Government will more likely than not be motivated to purposely inflict torture upon him.”

In reaching this conclusion, the BIA reiterated an evidentiary CAT standard Attorney General Alberto Gonzales established in his 2006 opinion in Matter of J-F-F-, where he held: 

An alien’s eligibility for [CAT deferral] cannot be established by stringing together a series of suppositions to show that it is more likely than not that torture will result where the evidence does not establish that each step in the hypothetical chain of events is more likely than not to happen.

In this instance, the immigration judge relied upon two suppositions in granting J-A- CAT deferral: (1) he would be imprisoned in Uzbekistan; and (2) he would be tortured as defined while imprisoned. 

The first appears to be highly likely based upon the limited record in the BIA’s opinion, while the second (more crucial) supposition hinges on the possibility J-A- will be “tortured” in custody on Uzbekistan. Here, the BIA concluded the facts did not show that torture is more likely than not to occur upon J-A-‘s return and imprisonment. 

Attorney General’s Designation

As noted at the outset, Matter of J-A- was published on September 25, but I left out that the BIA issued it nearly two months before, on August 8. It was only after Attorney General Pam Bondi issued Order No. 6404-2025 directing the BIA to designate the case as precedent to be followed in future CAT claims that it was published. 

While Order No. 6404-2025 is not publicly available, and may not be that enlightening, I believe Bondi ordered the BIA to publish Matter of J-A- for a couple of reasons. 

The first is to remind immigration judges generally that the burden of proof in CAT cases is high, as noted requiring aliens to prove it is “more likely than not” they will be “tortured” as defined in the regulations if returned. 

The second is that other, similar cases involving Uzbekistani nationals accused of terrorism are likely to be filed in other immigration courts, assuming they haven’t already. 

As my erstwhile colleague Todd Bensman and I have reported previously, a number of Uzbeks with terrorist connections allegedly came illegally under the Biden administration and sought asylum here, while other Uzbek nationals have engaged in terrorist activity in the United States in the past decade. 

Most notably, in April 2024, ICE arrested Jovokhir Attoev, an Uzbekistani national “with alleged ISIS ties” two years after he crossed illegally into the United States, was apprehended by CBP, and was released under the last administration. 

State Department reports reveal both that “hundreds” of Uzbekistani nationals are members of terrorist groups and that the country has a spotty human rights record. But, as the BIA makes clear, those facts alone don’t prove suspected terrorists sought by the Uzbekistani government will be tortured if returned.