Cite as 29 I&N Dec. 485 (BIA 2026)

Cite as 29 I&N Dec. 485 (BIA 2026)

Interim Decision #4168

Matter of D-J-L-, Applicant

Decided March 5, 2026

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

Where an expert witness’ background and testimony reflect a reluctance to consider

contrary evidence and an inability to impartially assess matters involving the removal of

persons to a given country, an Immigration Judge errs in giving the testimony of that

witness significant weight.

FOR THE APPLICANT: Philip T. Issa, Esquire, Miami, Florida

FOR THE DEPARTMENT OF HOMELAND SECURITY: Margarita I. Cimadevilla,

Assistant Chief Counsel

BEFORE: Board Panel:

Immigration Judges.

HUNSUCKER, GEMOETS, and VOLKERT, Appellate

HUNSUCKER, Appellate Immigration Judge:

This case was last before the Board on July 9, 2024, when we remanded

the record to the Immigration Judge to further consider the applicant’s

eligibility for deferral of removal under the regulations implementing the

Convention Against Torture (“CAT”). 1 On March 24, 2025, the Immigration

Judge issued a new decision granting the applicant’s application for CAT

deferral. 2 The Department of Homeland Security (“DHS”) appeals from that

decision, arguing that the Immigration Judge erred in relying on the

testimony of the expert witness. The applicant, a native and citizen of Haiti,

opposes the appeal. We will sustain the appeal and vacate the Immigration

Judge’s March 24, 2025, decision. The applicant will be removed to Haiti

pursuant to the reinstated order of removal.

The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or

Punishment, Dec. 10, 1984, S. Treaty Doc. No. 100–20, 1465 U.N.T.S. 85 (entered into

force for United States Nov. 20, 1994). 8 C.F.R. §§ 1208.16(c), 1208.17 (2026); 8 C.F.R.

§ 1208.18(a) (2020).

1

In its brief, the Department of Homeland Security refers to March 21, 2025, as the date

of the Immigration Judge’s decision. Although the Immigration Judge signed the decision

on March 21, 2025, the decision was not served on the parties until March 24, 2025.

2

page

485

Cite as 29 I&N Dec. 485 (BIA 2026)

Interim Decision #4168

The applicant contends that as a criminal deportee who suffers from

mental illness, he will be subject to indefinite detention upon removal to

Haiti, will suffer deteriorating mental illness because of the conditions in

detention and lack of medical care, and will be personally targeted for torture

by Haitian Government officials. The applicant also fears that he will be

targeted and tortured by criminal gangs with the acquiescence of the Haitian

Government.

The Immigration Judge found that although the applicant did not

previously suffer torture in Haiti, he would face different and significantly

more dangerous circumstances upon his return. The Immigration Judge

found that the applicant would be subject to indefinite detention if deported

because he would be unable to bribe his way out of detention, and he would

be personally targeted with the most severe abuses in detention due to his

significant physical and mental illnesses. The Immigration Judge further

found that while in detention in a Haitian prison the applicant would be more

likely than not to be starved, deprived of medical care for his physical and

psychological conditions, viewed as a danger due to his behavior and

physical manifestations on account of his head injury and migraines, and

tortured and/or killed. The Immigration Judge determined that the

cumulative conditions of detention the applicant would experience in prison

amount to torture by the Haitian Government. Finally, the Immigration

Judge also found that it is more likely than not a public official would

acquiesce to the applicant’s torture by criminal gangs if he were released.

Accordingly, the Immigration Judge granted the applicant’s request for CAT

deferral.

The Immigration Judge erred in determining that the applicant will more

likely than not suffer harm amounting to torture in Haiti. See Matter of

R-A-F-, 27 I&N Dec. 778, 779 (A.G. 2020) (holding that while the Board

reviews for clear error predictive findings about what will occur, whether the

predicted outcome satisfies the regulatory definition of torture is a legal issue

subject to de novo review). As supporting evidence, the applicant presented

the testimony and declaration of Michelle Karshan, the founder and

Executive Director of a nonprofit organization that assists deportees in Haiti.

The Immigration Judge found Ms. Karshan to be a qualified expert witness,

determined that her declaration was reliable and probative, and relied heavily

upon her testimony and declaration in determining that the applicant

established a clear probability of torture in Haiti.

Immigration Court proceedings are not bound by strict rules of evidence.

See Matter of E-F-N-, 28 I&N Dec. 591, 593 (BIA 2022). “[T]he ‘sole test

for admission of evidence is whether the evidence is probative and its

page

486

Cite as 29 I&N Dec. 485 (BIA 2026)

Interim Decision #4168

admission is fundamentally fair.’” Id. (quoting Matter of D-R-, 25 I&N

Dec. 445, 458 (BIA 2011), remanded on other grounds sub nom.,

Radojkovic v. Holder, 599 F. App’x 646 (9th Cir. 2015)). Under this

generous standard of admissibility, we have defined an expert witness

broadly as someone who, by “knowledge, skill, experience, training, or

education,” has “scientific, technical, or other specialized knowledge” that

will help the trier of fact to understand the evidence or to determine a fact at

issue. Matter of D-R-, 25 I&N Dec. at 459 (quoting Fed. R. Evid. 702);

accord Matter of M-A-M-Z-, 28 I&N Dec. 173, 177 (BIA 2020).

An Immigration Judge has broad discretion regarding whether to admit

evidence and is also given significant deference regarding the evidentiary

weight to accord any particular evidence, including testimony. See Matter of

D-R-, 25 I&N Dec. at 458. Nothing requires an Immigration Judge to give

special consideration to the testimony or declaration of an expert witness.

See Matter of M-A-M-Z-, 28 I&N Dec. at 177 (“Expert witness testimony is

evidence and so is treated the same as all evidence in immigration

proceedings, where the Immigration Judge is the trier of fact and weighs the

evidence in accordance with that role.”); Matter of J-G-T-, 28 I&N Dec. 97,

105–06 (BIA 2020) (holding that an Immigration Judge should weigh the

expert testimony against contradictory evidence in the record). “An

Immigration Judge should only find an expert’s opinion to be persuasive if

there is a reliable factual or evidentiary basis for [the expert’s] conclusions.”

Matter of J-G-T-, 28 I&N Dec. at 103.

In the instant case, although Ms. Karshan demonstrated expertise in her

field, the Immigration Judge clearly erred in the weight she gave to

Ms. Karshan’s testimony and declaration. See id. at 103–05 (describing how

to evaluate the persuasiveness of an expert’s opinion). Ms. Karshan’s

background includes factors that significantly weigh against the reliability

and persuasiveness of her testimony. See id. at 103. DHS objected to the

Immigration Judge designating Ms. Karshan as an expert because of her

advocacy background, specifically arguing that she previously advocated

that no criminal deportees should be returned to Haiti. When DHS

confronted Ms. Karshan on cross-examination about coauthoring an article

advocating that all deportations to Haiti be stopped, Ms. Karshan conceded

that there were periods of time when she believed the United States should

have ceased all deportations to Haiti.

We acknowledge that expert witnesses sometimes exhibit a degree of

bias, such as when an expert routinely testifies only for plaintiffs or only for

defendants. Bias of this type does not necessarily render the testimony of a

witness inadmissible. However, where an expert witness’ background and

page

487

Cite as 29 I&N Dec. 485 (BIA 2026)

Interim Decision #4168

testimony reflect a reluctance to consider contrary evidence and an inability

to impartially assess matters involving the removal of persons to a given

country, an Immigration Judge errs in giving the testimony of that witness

significant weight. Here, Ms. Karshan’s background and testimony reflect

an inability to impartially assess matters involving the removal of aliens to

Haiti. This significantly impacts the reliability of her opinions. Thus, we

conclude the Immigration Judge clearly erred in finding Ms. Karshan’s

opinion persuasive and assigning her testimony significant weight. See

Matter of M-A-M-Z-, 28 I&N Dec. at 177 (stating that the weight and

probative value to give expert testimony is a factual determination).

The record evidence does not establish a clear probability that the

applicant will suffer harm rising to the level of torture in Haiti. Even

assuming the applicant will be detained indefinitely by Haitian authorities

upon his removal, we have held that the indefinite detention of criminal

deportees by authorities in substandard prison conditions does not constitute

torture within the meaning of 8 C.F.R. § 1208.18(a) (2020) where there is no

evidence that the authorities intentionally and deliberately detain deportees

in order to inflict torture. Matter of J-E-, 23 I&N Dec. 291, 300–01

(BIA 2002). We acknowledge that Ms. Karshan’s declaration cites to

country conditions reports stating that some incarcerated individuals have

reported receiving inadequate food in prison and some have died in detention

as a result. The Immigration Judge erred, however, 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.” Matter of

A-A-F-V-, 29 I&N Dec. 118, 120 (BIA 2025); see also Matter of A-A-R-,

29 I&N Dec. 38, 41–42 (BIA 2025) (holding that anecdotal reports of some

incidents of severe harm or death are not sufficient to show that the alien, in

particular, would more likely than not be tortured in prison).

The Immigration Judge’s finding that the applicant will more likely than

not be starved, deprived of medical care, tortured and/or killed by Haitian

Government officials is based primarily on Ms. Karshan’s unreliable

opinion. The Immigration Judge failed to give sufficient credit to the

evidence DHS presented of Ms. Karshan’s bias and did not adequately

consider how her advocacy against deportation to Haiti could taint her

opinion. Ms. Karshan opined that torture is rampant at police stations and

prisons throughout Haiti but did not cite sufficient evidence to support her

opinion. See Matter of J-G-T-, 28 I&N Dec. at 103 (noting that there must

be a reliable factual and evidentiary basis for an expert’s opinion). Similarly,

Ms. Karshan’s assertion that the applicant will more likely than not be placed

in isolation, beaten, abandoned, enslaved, or sexually abused because of his

physical and psychological conditions is not adequately supported by the

page

488

Cite as 29 I&N Dec. 485 (BIA 2026)

Interim Decision #4168

record. Although the record contains evidence of isolated acts of torture in

Haiti, the applicant has not shown that torture “is so common that it is more

likely than not that he will personally experience it.” Matter of J-R-G-P-,

27 I&N Dec. 482, 487 (BIA 2018).

Similarly, the Immigration Judge’s finding that the applicant will more

likely than not be severely harmed or killed by criminal gangs is primarily

tethered to Ms. Karshan’s unreliable opinion and does not have other

objective evidentiary support sufficient to sustain such a finding. “Evidence

of the general possibility of torture does not meet the applicant’s burden of

establishing that it is more likely than not that he will be targeted for such

treatment.” Matter of A-A-F-V-, 29 I&N Dec. at 121; see also Matter of S-V-,

22 I&N Dec. 1306, 1313 (BIA 2000) (“Specific grounds must exist that

indicate the individual would be personally at risk.”). See generally

Matter of S-S-, 29 I&N Dec. 136, 139 (BIA 2025) (finding that an

Immigration Judge erred in concluding that an applicant with mental health

issues would more likely than not be tortured in detention in Haiti).

For the foregoing reasons, we conclude that the Immigration Judge erred

in determining that the applicant will more likely than not suffer harm

amounting to torture upon removal. See Matter of R-A-F-, 27 I&N Dec. at

779. Thus, we reverse the Immigration Judge’s decision granting deferral of

removal under the CAT.

The applicant attached to his reply brief an April 2025 country conditions

article, which states, among other things, that the United Nations can no

longer provide financial assistance to all deportees in Haiti because of

funding cuts. The Board reviews the record that was before the Immigration

Judge and therefore does not generally consider evidence submitted for the

first time on appeal. See Matter of Fedorenko, 19 I&N Dec. 57, 73–74

(BIA 1984) (finding it inappropriate to accept evidence first presented on

appeal). The proffered article was previously unavailable as it post-dates the

Immigration Judge’s decision; however, the applicant has not shown that this

evidence would likely change the result of his application for CAT deferral.

See Dos Santos v. U.S. Att’y Gen., 982 F.3d 1315, 1323 (11th Cir. 2020);

Matter of Coelho, 20 I&N Dec. 464, 473 (BIA 1992). Thus, remand for

consideration of the additional evidence submitted with the applicant’s reply

brief is not warranted.

ORDER: DHS’ appeal is sustained, and the Immigration Judge’s

March 24, 2025, grant of deferral of removal under the Convention Against

Torture is vacated.

page

489

Cite as 29 I&N Dec. 485 (BIA 2026)

Interim Decision #4168

NOTICE: If an applicant is subject to a final order of removal and

willfully fails or refuses to depart from the United States pursuant to the

order, to make timely application in good faith for travel or other documents

necessary to depart the United States, or to present himself or herself at the

time and place required for removal by DHS, or conspires to or takes any

action designed to prevent or hamper the applicant’s departure pursuant to

the order of removal, the applicant shall be subject to a civil monetary penalty

of up to $998 for each day the applicant is in violation. See section 274D of

the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1324d (2024);

8 C.F.R. § 280.53(b)(14) (2026). Further, any applicant that has been denied

admission to, removed from, or has departed the United States while an order

of exclusion, deportation, or removal is outstanding and thereafter enters,

attempts to enter, or is at any time found in the United States shall be fined

or imprisoned not more than 2 years, or both. See INA § 276(a), 8 U.S.C.

§ 1326(a) (2024).

page

490