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Interim Decision #4109

Matter of S-S-, Respondent

Decided by Board June 16, 2025 1

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

The Immigration Judge erred in concluding that the respondent would more likely than

not be tortured in detention in Haiti where the Immigration Judge did not find that his

detention would be long term and where the record did not establish that the harsh

conditions in Haitian detention were specifically intended to torture.

FOR THE RESPONDENT: Lisa M. Rosado, Esquire, Miami, Florida

FOR THE DEPARTMENT OF HOMELAND SECURITY: Evelin Mac Clay Migueles,

Assistant Chief Counsel

BEFORE: Board Panel: MALPHRUS, Chief Appellate Immigration Judge; MULLANE

and GOODWIN, Appellate Immigration Judges.

MULLANE, Appellate Immigration Judge:

The respondent is a native and citizen of Haiti. The Department of

Homeland Security (“DHS”) appeals from an Immigration Judge’s

October 28, 2024, decision granting his application for deferral of removal

under the regulations implementing the Convention Against Torture

(“CAT”). 2 The respondent has filed a brief in opposition to the appeal. The

appeal will be sustained.

The respondent has been diagnosed with schizophrenia; schizoaffective

disorder, depressive type; and major depressive disorder with psychotic

symptoms. He also has been hospitalized while detained and described

as “actively psychotic with suicide ideations with a plan.”

The

Immigration Judge’s finding that the respondent lacked sufficient

mental competency to represent himself in removal proceedings under

1

Pursuant to Order No. 6319-2025, dated July 8, 2025, the Attorney General designated

the Board’s decision in Matter of S-S- (BIA Jun. 16, 2025), as precedent in all proceedings

involving the same issue or issues. See 8 C.F.R. § 1003.1(g)(3) (2025). Editorial changes

have been made consistent with the designation of the case as a precedent.

2

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 (2025);

8 C.F.R.§ 1208.18(a) (2020).

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Matter of M-A-M-, 25 I&N Dec. 474 (BIA 2011), is not at issue on appeal.

Likewise, the Immigration Judge’s implementation of safeguards, including

appointment of counsel, is not at issue.

The parties dispute whether the Immigration Judge erred in concluding

that the respondent established that he more likely than not would be tortured

upon removal to Haiti. To establish eligibility for CAT protection, the

respondent must show that he more likely than not will be tortured if removed

to Haiti. See 8 C.F.R. §§ 1208.16(c)(2), 1208.18(a); see also Reyes Sanchez

v. U.S. Att’y Gen., 369 F.3d 1239, 1242 (11th Cir. 2004). The respondent

fears: (1) as a mentally ill criminal deportee, he will be indefinitely detained

upon removal to Haiti in conditions constituting torture; and (2) he will be

tortured for being mentally ill, whether detained or not, by Haitian

authorities, gangs, or members of the community, by or with the

acquiescence of a public official.

Relying on the United States Department of State, Bureau of Democracy,

Human Rights, and Labor, 2023 Country Reports on Human Rights Practices

for Haiti and the testimony of expert witness Michelle Karshan, the

Immigration Judge found that the respondent more likely than not would be

detained upon removal to Haiti as a criminal deportee without family

available to secure his release. The Immigration Judge further found that the

respondent faced increased risk of subsequent arrest and detention as a

criminal deportee, even after his release into Haiti.

The Immigration Judge did not determine whether the respondent’s

detention would more likely than not continue long term. See Bonnet v.

Garland, 20 F.4th 80, 85–86 (1st Cir. 2021) (affirming the agency’s

determination that there was insufficient evidence that the respondent would

be held in prolonged detention upon removal to Haiti). Along these lines,

Ms. Karshan provided different scenarios of what could happen to the

respondent upon return to Haiti, which included him being quickly released

and being released upon a family member’s payment of a bribe. Ms. Karshan

also could not estimate how many criminal deportees were incarcerated or

killed in 2022 or 2023. Anecdotal reports of some criminal deportees being

indefinitely detained in torturous conditions are insufficient to establish that

the respondent is more likely than not to have that experience. See Matter of

A-A-R-, 29 I&N Dec. 38, 41–42 (BIA 2025). It is thus unclear whether the

respondent will be subjected to the detention conditions that he claims will

constitute torture. See Matter of J-F-F-, 23 I&N Dec. 912, 917–18, 918 n.4

(A.G. 2006) (emphasizing that the Immigration Judge must identify each step

in the hypothetical chain of events that will lead to the alien’s torture and that

each link must be more likely than not to occur).

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Moreover, even assuming arguendo that the respondent is detained long

term upon removal, we conclude upon de novo review that the Immigration

Judge erred in determining that the conditions of the respondent’s detention

would constitute torture. See Matter of R-A-F-, 27 I&N Dec. 778, 779

(A.G. 2020); 8 C.F.R. § 1003.1(d)(3)(ii) (2025). The respondent’s

allegations about the conditions he would face in long-term detention are

similar to the conditions that we considered in Matter of J-E-, 23 I&N

Dec. 291 (BIA 2002). In that case, the respondent presented articles

confirming the assessment of the United States Department of State that

prison conditions in Haiti were inhumane. Matter of J-E-, 23 I&N Dec.

at 293. We concluded that although Haitian authorities were intentionally

detaining criminal deportees in knowingly substandard detention facilities,

the respondent did not show that they were intentionally and deliberately

maintaining such conditions to inflict torture. Id. at 301. The record instead

demonstrated that Haitian prison conditions were “the result of budgetary

and management problems as well as the country’s severe economic

difficulties.” Id. The record also showed that the Haitian government freely

permitted human rights groups to enter detention settings. Id. We therefore

concluded that the respondent had not demonstrated that the inhumane prison

conditions were “specifically intended to inflict severe pain or suffering,” as

required to constitute torture under the regulations. Id. at 300–01.

In this case, the respondent presented similar evidence of dangerous and

unsanitary detention conditions in Haiti. The Immigration Judge did not find

that public officials are “intentionally and deliberately creating and

maintaining [harsh detention] conditions” that the respondent could be

exposed to for the specific purpose of inflicting pain or suffering. Matter of

J-R-G-P-, 27 I&N Dec. 482, 484 (BIA 2018) (emphasis omitted) (quoting

Matter of J-E-, 23 I&N Dec. at 301). Rather, the Immigration Judge’s

finding, based on Ms. Karshan’s testimony, that “prison guards and police

have the same lack of understanding of mental illness that is widespread

among Haitian society” shows a lack of specific intent to torture mentally-ill

detainees. The instant case is therefore indistinguishable from Matter of

J-E-. The respondent’s failure to show that Haitian officials are intentionally

and deliberately creating and maintaining the harsh detention conditions that

he fears for the specific purpose of inflicting severe pain or suffering warrants

reversal of the grant of his application for CAT protection. See Matter of

A-A-R-, 29 I&N Dec. at 43; cf. Jean-Pierre v. U.S. Att’y Gen., 500 F.3d 1315,

1324–27 (11th Cir. 2007) (remanding for additional analysis of whether the

respondent would specifically and individually be singled out for torture).

In addition, the Immigration Judge did not evaluate an IOM U.N.

Migration report stating that the organization provides counseling,

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medication, and bus money to deportees upon arrival in Haiti. Ms. Karshan

further admitted that deportees sometimes receive necessary medication. As

discussed, the respondent also has not shown that Haitian authorities

maintain inhumane detention conditions with the specific intent of torturing

detainees. See Matter of J-E-, 23 I&N Dec. at 300–01. We therefore reverse,

as clearly erroneous, the Immigration Judge’s findings that the respondent is

more likely than not to be: (1) unable to receive medical treatment;

(2) detained as a result; and (3) tortured in detention because he exhibits

mental health symptoms. See Matter of J-F-F-, 23 I&N Dec. at 917-18, 918

n.4; see also Matter of R-A-F-, 27 I&N Dec. at 779 (holding that while the

Board reviews Immigration Judge’s predictive findings about what is likely

to happen for clear error, whether the predicted outcome satisfies the legal

definition of torture is a legal determination). Anecdotal reports of some

instances of people having been tortured in detention in Haiti, although

deplorable, are insufficient to show that the respondent is more likely than

not to experience harm rising to that level. See Matter of A-A-R-, 29 I&N

Dec. at 41–42; Matter of J-E-, 23 I&N Dec. at 303–04.

Regarding the respondent’s fear of being tortured outside of a detention

setting in Haiti, the Immigration Judge found that the respondent is

vulnerable to being tortured by members of the community because his

mental health conditions make it likely that he will exhibit erratic and

abnormal behavior. The Immigration Judge did not identify each step in a

hypothetical chain of events that would lead to the respondent’s torture in the

community and did not find that each event is more likely than not to occur.

See Matter of J-F-F-, 23 I&N Dec. at 917–18, 918 n.4. The Immigration

Judge’s finding that the respondent would be “vulnerable” to torture is

insufficient, as the respondent bears the burden of showing that he more

likely than not will be tortured upon removal to Haiti. See Reyes Sanchez,

369 F.3d at 1242; 8 C.F.R. §§ 1208.16(c)(2), 1208.18(a); see also Matter of

N-N-B-, 29 I&N Dec. 79, 80 (BIA 2025) (concluding that in finding the

respondent “could be” subject to torture, the Immigration Judge applied the

wrong legal standard). Further, generalized evidence that some gangs have

ties to politicians and police in Haiti is insufficient to establish that the police

cannot or will not help the respondent in his individual case, as required for

him to prove acquiescence. See Matter of M-S-I-, 29 I&N Dec. 61, 64

(BIA 2025).

Overall, we conclude that the Immigration Judge factually and legally

erred in determining that the respondent established that he more likely

than not would be “tortured” by or with the acquiescence (including

the concept of willful blindness) of a public official of the Haitian

government upon removal. See Reyes Sanchez, 369 F.3d at 1242;

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8 C.F.R. §§ 1208.16(c)(2), 1208.18(a); see also Matter of Z-Z-O-, 26 I&N

Dec. 586, 590 (BIA 2015) (holding that an Immigration Judge’s predictive

findings of what may or may not occur are reviewed for clear error). We

therefore will sustain DHS’ appeal and vacate the Immigration Judge’s

decision granting the respondent’s application for deferral of removal under

the CAT. The respondent shall be removed to Haiti pursuant to the

Immigration Judge’s order of removal.

ORDER: The appeal is sustained.

FURTHER ORDER: The Immigration Judge’s October 28, 2024,

decision granting the respondent’s application for deferral of removal under

the CAT is vacated.

NOTICE: If a respondent 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 respondent’s departure pursuant to

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

penalty of up to $998 for each day the respondent is in violation. See section

274D of the Immigration and Nationality Act, 8 U.S.C. § 1324d (2018);

8 C.F.R. § 280.53(b)(14) (2025).

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