Cite as 29 I&N Dec. 642 (BIA 2026)

Cite as 29 I&N Dec. 642 (BIA 2026)

Interim Decision #4195

Matter of A-H-D-, Respondent

Decided May 26, 2026

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

(1) The respondent’s 3-day detention during which he was beaten once but did not sustain

significant injury does not rise to the level of persecution.

(2) Although a government may generally defer to tribal mechanisms for resolving tribal

conflict, doing so does not indicate the government is unable or unwilling to control

persecutors within a tribe.

FOR THE RESPONDENT: Pro se

FOR THE DEPARTMENT OF HOMELAND SECURITY: Bret J. Engstrom, Assistant

Chief Counsel

BEFORE: Board Panel: GOODWIN and VOLKERT, Appellate Immigration Judges;

MCCLOSKEY, Temporary Appellate Immigration Judge.

MCCLOSKEY, Temporary Appellate Immigration Judge:

The Department of Homeland Security (“DHS”) appeals from the

Immigration Judge’s June 12, 2025, decision granting the respondent’s

application for withholding of removal under section 241(b)(3)(A) of the

Immigration and Nationality Act (“INA”), 8 U.S.C. § 1231(b)(3)(A) (2024).

The respondent, a native and citizen of Mauritania, has not responded to the

appeal. The appeal will be sustained, and the record will be remanded.

The respondent set forth two different claims for relief, one based on his

political opinion and one based on membership in a particular social group,

namely the Hadadin minority tribe. The respondent testified that he was

arrested and beaten by the police after he participated in a march in support

of the former president. The respondent also testified that while attending

university, he began a romantic relationship with a woman who was from a

higher ranked tribe. He asked his girlfriend’s family for her hand in

marriage, but the family rejected him because of his status as a member of a

lower tribe. After the respondent proposed marriage, his girlfriend’s brother

and cousins attacked him, resulting in injuries that required a 7-day hospital

stay and multiple surgeries. He fears returning to Mauritania because he

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believes he will be harmed again due to his political opinion and tribal

membership.

The Immigration Judge granted withholding of removal under the INA,

concluding that the respondent demonstrated past persecution on account of

both asserted protected grounds and therefore had a rebuttable presumption

that his life or freedom would be threatened. 1 On appeal, DHS argues that

the Immigration Judge erred in concluding that the respondent established

past persecution because the harm at the hands of the police did not rise to

the level of persecution and the respondent did not show that the Mauritanian

Government was unable or unwilling to control his girlfriend’s family. We

will address each claim in turn.

In order to establish past persecution, the respondent must show that his

mistreatment: (1) rose to the level of persecution; (2) occurred on account of

one or more statutorily protected grounds; and (3) was committed by the

government or forces the government was unable or unwilling to control.

Bringas-Rodriguez v. Sessions, 850 F.3d 1051, 1062 (9th Cir. 2017) (en

banc).

Turning first to the respondent’s political opinion claim, we conclude, on

de novo review, that the Immigration Judge erred in determining that the

harm suffered by the respondent was sufficiently severe to constitute

persecution under the INA. See Matter of A-S-B-, 24 I&N Dec. 493, 497

(BIA 2008) (explaining that whether established facts meet the legal standard

of persecution is a legal question subject to de novo review), overruled on

other grounds by Matter of Z-Z-O-, 26 I&N Dec. 586 (BIA 2015). The

Immigration Judge found that the respondent was arrested and placed in a

cell for 3 days after attending a political march. On the first day, the

respondent was beaten, and he watched the police hit and insult others in his

cell. The Immigration Judge concluded that this mistreatment rises to the

level of persecution. We disagree.

We review the respondent’s harm considering precedent set by the

United States Court of Appeals for the Ninth Circuit, in whose jurisdiction

this case arises. See Matter of U. Singh, 25 I&N Dec. 670, 672 (BIA 2012)

1

The Immigration Judge concluded that the respondent was not eligible for asylum under

section 208(b)(1)(A) of the INA, 8 U.S.C. § 1158(b)(1)(A) (2024), based on the

Circumvention of Lawful Pathways rule. 8 C.F.R. § 1208.33 (2026). The respondent has

not challenged this determination on appeal. Accordingly, we conclude that any further

argument on this issue is waived. See Matter of P-B-B-, 28 I&N Dec. 43, 44 n.1 (BIA 2020)

(stating that arguments not raised on appeal are deemed waived).

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(stating that the Board “appl[ies] the law of the circuit in cases arising in that

jurisdiction”). “Persecution is ‘an extreme concept that does not include

every sort of treatment our society regards as offensive.’” Duran-Rodriguez

v. Barr, 918 F.3d 1025, 1028 (9th Cir. 2019) (citation omitted). “[S]ome

circumstances that cause [applicants] physical discomfort or loss of liberty

do not qualify as persecution, despite the fact that such conditions have

caused the [applicants] some harm.” Mihalev v. Ashcroft, 388 F.3d 722, 729

(9th Cir. 2004). Factors to consider when determining whether past harm

rises to the level of persecution include: “physical violence and resulting

serious injuries, frequency of harm, specific threats combined with

confrontation, length and quality of detention, harm to family and close

friends, economic deprivation, and general societal turmoil.” Sharma v.

Garland, 9 F.4th 1052, 1060–63 (9th Cir. 2021).

The respondent was arrested and detained for 3 days without charges. He

was beaten on the first day but testified that he did not suffer significant

injuries from the beating and did not seek medical treatment. The respondent

also testified that he witnessed police officers insulting and hitting other

individuals in his cell, but he did not provide further details or indicate

whether these individuals suffered injuries. The respondent did not present

evidence of any further encounters or harm on account of his political

opinion. Given this record, we conclude that the respondent’s 3-day

detention during which he was beaten once but did not sustain significant

injury does not rise to the level of persecution. 2 See Sharma, 9 F.4th at

1063–64 (concluding that an applicant did not establish persecution where

he was physically harmed during his arrest and 18- to 19-hour detention but

did not identify any injuries or claim he required medical attention); see also

Gu v. Gonzales, 454 F.3d 1014, 1017–18, 1020–21 (9th Cir. 2006)

(concluding that a 3-day detention, which included a beating that did not

require medical attention, did not rise to the level of persecution); cf.

Mihalev, 388 F.3d at 730 (holding that a 10-day detention, accompanied by

daily beatings and hard labor, rose to the level of persecution). Accordingly,

2

The fact that the respondent did not suffer serious injuries is relevant but not dispositive

to our conclusion. See Sharma, 9 F.4th at 1061–63. We note that serious physical injuries

are not required to demonstrate persecution, and we focus on “the conduct of the

persecutor” rather than solely on “the level of harm” or “subjective suffering” the applicant

experienced. See Flores Molina v. Garland, 37 F.4th 626, 636 (9th Cir. 2022) (citation

omitted). Here, the respondent did not present evidence of other harm or aggravating

factors, such as threats, subsequent encounters, the destruction of property, or the

intimidation of family members. Accordingly, we conclude that he did not show that the

Mauritanian police’s conduct was so extreme that it constituted persecution. See Sharma,

9 F.4th at 1060–63; Matter of O-Z- & I-Z-, 22 I&N Dec. 23, 26 (BIA 1998).

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the Immigration Judge erred in concluding that the respondent suffered past

persecution on account of his political opinion.

We next consider the respondent’s claim of past persecution based on his

tribal membership. We conclude that the respondent did not meet his burden

to demonstrate that the Mauritanian Government was unable or unwilling to

control his girlfriend’s family. See Bringas-Rodriguez, 850 F.3d at 1062–72

(setting forth standard for assessing a government’s ability and willingness

to control persecutors). The Immigration Judge relied on the testimony of

the respondent’s expert witness and found that the Mauritanian Government

does not interfere in tribal conflicts. However, this finding mischaracterizes

the expert’s testimony, as the expert explained that the government usually

does not get involved in the tribes’ resolution of a tribal conflict but will

intervene if a party fails to abide by a tribal agreement or if violence in a

particular situation escalates. This intervention may include the prosecution

and incarceration of those who violate the resolution agreement. The

Immigration Judge, thus, clearly erred in finding that the Mauritanian

Government does not interfere with tribal conflicts.

8 C.F.R.

§ 1003.1(d)(3)(i) (2026).

Efforts at negotiation, mediation, and reconciliation have long been used

by governments to resolve conflicts and prevent additional harm. Such

efforts at conflict resolution do not equate to condoning past harm. See, e.g.,

Garcia-Martinez v. Ashcroft, 371 F.3d 1066, 1074 (9th Cir. 2004)

(recognizing the role of a United Nations-sponsored truth commission in

providing accountability at the end of the Guatemalan civil war); Matter of

O-R-E-, 28 I&N Dec. 330, 332 n.2 (BIA 2021) (recognizing the use of locally

run “gacaca courts” in the aftermath of the Rwandan genocide); see also

Daniel S. McConkie, Jr., Harambee: Lessons from Kenya About Restorative

Justice, 55 Cal. W. Int’l L.J. 297, 301–09, 334 (2025) (comparing the

restorative justice and other alternative dispute resolution programs that are

incorporated into criminal justice systems of Kenya and the United States).

The fact that a country sanctions or incorporates traditional means of conflict

resolution within its justice system does not demonstrate that the government

is unable or unwilling to provide protection. Although a government may

generally defer to tribal mechanisms for resolving tribal conflict, doing so

does not indicate the government is unable or unwilling to control

persecutors within a tribe.

Given the record before us, we conclude that the respondent did not show

that the Mauritanian Government was unable or unwilling to control his

girlfriend’s family. See Matter of A-B-, 28 I&N Dec. 199, 203–06

(A.G. 2021) (explaining that “persecution is defined by a breach of the home

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country’s duty to protect its citizens” and, as such, to show “unable or

unwilling” the applicant must show more than the government’s “failure to

prevent or solve a particular crime”), reinstated by Matter of S-S-F-M-,

29 I&N Dec. 207 (A.G. 2025); see also Nahrvani v. Gonzales,

399 F.3d 1148, 1154 (9th Cir. 2005) (concluding that the applicant did not

establish the government was unable or unwilling to control individuals

harassing him where the police took reports documenting his claims of

mistreatment but “were ultimately unable to solve the crimes”).

The respondent testified that he did not seek assistance from the

leadership in his tribe, despite the fact that recognized mechanisms exist for

the tribes to resolve conflicts such as the one presented here. Furthermore,

the record reflects that the respondent’s family reported the attack to the local

police and the police opened an investigation. Accordingly, we conclude that

the respondent did not demonstrate that the Mauritanian Government was

unable or unwilling to protect him. Thus, the Immigration Judge erred in

concluding that the respondent suffered past persecution on account of his

tribal membership. See Bringas-Rodriguez, 850 F.3d at 1062 (describing

how, for harm to constitute persecution, it must be committed by the

government or by forces that the government was unable or unwilling to

control).

Because the respondent has not demonstrated past persecution, he is not

entitled to a presumption that his life or freedom would be threatened on

account of the same statutorily protected ground.

See 8 C.F.R.

§ 1208.16(b)(1) (2026). However, the respondent may still establish

eligibility for withholding of removal if he shows that it is more likely than

not that his life or freedom will be threatened on account of a statutorily

protected ground if returned to Mauritania. See 8 C.F.R. § 1208.16(b)(2).

The Immigration Judge did not reach the issue of whether the respondent

established such a threat of future harm. Accordingly, we will remand the

record to the Immigration Judge to assess this claim in the first instance. See

Matter of S-H-, 23 I&N Dec. 462, 465 (BIA 2002) (explaining that a remand

is necessary where additional fact-finding is required); 8 C.F.R.

§ 1003.1(d)(3)(iv). Upon remand, the Immigration Judge should consider

whether any likely future harm would rise to the level of persecution and

whether such harm would be inflicted on account of a statutorily protected

ground. See Sharma, 9 F.4th at 1060–63; Barajas-Romero v. Lynch,

846 F.3d 351, 360 (9th Cir. 2017) (articulating the nexus requirement for

withholding of removal under the INA). If so, the Immigration Judge should

then assess whether the Mauritanian Government would be unable or

unwilling to control the persecutor, as well as the availability of internal

relocation to avoid persecution. See Matter of A-B-, 28 I&N Dec. at 203–07.

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On remand, the Immigration Judge should also address the respondent’s

request for protection under the Convention Against Torture. 3 In doing so,

the Immigration Judge should make clear findings as to what is likely to

happen to the respondent if he returns to Mauritania and determine whether

any harm would constitute torture by, or with the consent or acquiescence of,

the Mauritanian Government. See 8 C.F.R. §§ 1208.16(c), 1208.18(a); see

also Parada v. Sessions, 902 F.3d 901, 914–15 (9th Cir. 2018) (holding that

the agency must consider all evidence relevant to an applicant’s risk of

torture). We express no opinion as to the ultimate outcome of this case.

ORDER: DHS’ appeal is sustained, and the record is remanded to the

Immigration Court for further proceedings consistent with the foregoing

opinion and for the entry of a new decision.

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).

3

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