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Interim Decision #4106

Matter of A-A-F-V-, Respondent

Decided by Board June 6, 2025 1

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

The applicant, a bisexual criminal deportee with visible gang tattoos, has not established

an individualized risk of torture in detention in El Salvador.

FOR THE RESPONDENT: Pro se

FOR THE DEPARTMENT OF HOMELAND SECURITY: Lauren N. Mattioni, Assistant

Chief Counsel

BEFORE: Board Panel:

Immigration Judges.

MULLANE, GOODWIN, and HUNSUCKER, Appellate

HUNSUCKER, Appellate Immigration Judge:

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

Immigration Judge’s decision dated December 13, 2024, granting the

applicant’s 2 request for deferral of removal under the Convention Against

Torture (“CAT”). 3 See 8 C.F.R. §§ 1208.16(c), 1208.17 (2025); 8 C.F.R.

§ 1208.18(a) (2020). DHS’ appeal will be sustained.

The applicant claims a fear of torture in El Salvador by the Salvadoran

government based on his status as a bisexual criminal deportee with visible

gang tattoos. The Immigration Judge found the applicant carried his burden

of establishing that it is more likely than not he would be targeted for torture

upon return to El Salvador. DHS argues that the Immigration Judge

erroneously conflated the applicant’s risk of arrest with his risk of torture,

1

Pursuant to Order No. 6309-2025, dated June 30, 2025, the Attorney General designated

the Board’s decision in Matter of A-A-F-V- (BIA Jun. 6, 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 applicant is in withholding-only proceedings.

3

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).

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Interim Decision #4106

and that the Immigration Judge clearly erred in finding that the applicant is

more likely than not to be tortured upon removal to El Salvador even

considering the current state of exception. We agree with DHS and will

reverse the Immigration Judge’s grant of CAT protection.

When evaluating a claim for protection under the CAT, an Immigration

Judge must examine: (1) what is likely to happen to the applicant if he is

removed, and (2) whether what is likely to happen amounts to the legal

definition of torture. Ibarra Chevez v. Garland, 31 F.4th 279, 291 (4th Cir.

2022). The question of what will happen to an applicant is a factual finding

the Board reviews for clear error. Id. Whether such harm amounts to torture

is a legal determination that we review de novo. Id.; see also Matter of

R-A-F-, 27 I&N Dec. 778, 779 (A.G. 2020).

The applicant seeks protection under the CAT based on a fear that he will

be detained, imprisoned, and tortured in El Salvador because of the

government’s state of exception policy and its treatment of bisexual criminal

deportees with visible gang tattoos. The evidence of record establishes that

the Salvadoran Government announced a state of exception in March 2022

following an increase in gang-related homicide, including the murder of

87 people in 1 weekend. Under the state of exception, which must be

renewed monthly, security forces are empowered to arrest anyone suspected

of belonging to a gang or providing support to gangs.

The Immigration Judge did not clearly err in finding that the applicant is

a bisexual criminal deportee with visible gang tattoos. See 8 C.F.R.

§ 1003.1(d)(3)(i) (2025). Further, the Immigration Judge did not clearly err

in finding that if the applicant is removed, he will likely be detained upon his

arrival in El Salvador pursuant to the state of exception policy because he

will be identified as a suspected gang member deported from the

United States with numerous gang-related tattoos and a criminal history. See

Matter of Z-Z-O-, 26 I&N Dec. 586, 590 (BIA 2015) (explaining that “an

Immigration Judge’s predictive findings of what may or may not occur in the

future are findings of fact, which are subject to a clearly erroneous standard

of review”). The record establishes that the applicant has a serious criminal

history in the United States, and the information about his criminal history

would likely be shared with the Salvadoran Government through the

Criminal History Information Sharing Program between the United States

and El Salvador. Further, the evidence establishes a history of widespread

detention of prior and suspected gang members in El Salvador.

We reverse the Immigration Judge’s determination that the applicant has

established a clear probability of torture in El Salvador. We review the

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Immigration Judge’s predictive factual findings for clear error, considering

all relevant evidence in the record. Turkson v. Holder, 667 F.3d 523, 529–30

(4th Cir. 2012) (holding that an Immigration Judge’s predictions of likely

future mistreatment are factual findings subject to clear error review);

Matter of Z-Z-O-, 26 I&N Dec. at 590. In finding that the applicant would

suffer harm satisfying the definition of torture in detention, the

Immigration Judge relied heavily on statistical information and country

conditions evidence showing that some detainees and suspected gang

members have been subjected to mistreatment, torture, or death while in

detention. However, the Immigration Judge relied on a relatively small

number of anecdotal incidents of mistreatment or death that fall well short of

supporting a clear probability of torture. Overall, out of a total prison

population of approximately 95,000 detainees as of November 2022, the

Salvadoran Government documented 90 deaths in custody, some of which

were attributable to lack of access to medication. Even if the actual number

of abuses and deaths is higher than that documented by the Salvadoran

Government, the evidence still demonstrates that only a small percentage of

detainees died out of the tens of thousands detained.

Moreover, the Immigration Judge’s finding that numerous detainees have

died in detention does not establish that public officials caused those deaths

or that the unspecified human rights abuses rise to the level of torture. See

8 C.F.R. § 1208.18(a) (defining torture). The substandard prison conditions

referenced by the Immigration Judge, which may include severe

overcrowding and lack of food, do not amount to torture as a matter of law

unless “specifically intended to inflict severe physical or mental pain or

suffering.” 8 C.F.R. § 1208.18(a)(5); see also Matter of A-A-R-, 29 I&N

Dec. 38, 43–45 (BIA 2025) (holding that the record did not establish that

harsh prison conditions in El Salvador are specifically intended to torture

detained gang members); Matter of R-A-F-, 27 I&N Dec. at 780; Matter of

J-R-G-P-, 27 I&N Dec. 482, 484 (BIA 2018) (“‘[T]orture’ does not cover

‘negligent acts’ or harm stemming from a lack of resources.”).

There are significant similarities between this case and the Board’s

decision in Matter of J-E-, 23 I&N Dec. 291 (BIA 2002). In Matter of J-E-,

the Haitian Government had a policy of incarcerating criminal deportees to

deter criminal activity in Haiti. Matter of J-E-, 23 I&N Dec. at 293, 299–300.

We concluded that the Haitian Government had a legitimate national interest

in protecting its citizens from increased criminal activity, and that Haitian

authorities did not use torture as a matter of policy. Id. at 300, 303. The

Salvadoran Government’s policy of incarcerating suspected gang members

as a method of addressing historic violence in the country is similar to the

policy in Matter of J-E-. Like in Matter of J-E-, the Salvadoran state of

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exception policy “in itself appears to be a lawful enforcement sanction

designed . . . to protect the populous from criminal acts” committed by gang

members. Id. at 300; see also 8 C.F.R § 1208. 18(a)(3) (“Torture does not

include pain or suffering arising only from, inherent in or incidental to lawful

sanctions.”).

While the Immigration Judge found that bisexual individuals in

El Salvador may face human rights abuses, violence, and discrimination, the

record fails to establish the individualized risk of torture as required for CAT

protection. See Kerr v. Garland, 66 F.4th 462, 471 (4th Cir. 2023) (affirming

the agency’s denial of CAT protection where the alien had not established

“that he would be singled out for torture as . . . a ‘bisexual former gang

member’”); Matter of A-A-R-, 29 I&N at 41–42 (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 a Salvadoran prison); see also Paredes v. Bondi, No. 24-1105,

2025 WL 1249367, at *7 (4th Cir. Apr. 30, 2025) (unpublished). 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. See 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 also Lizama v. Holder, 629 F.3d 440, 449–50

(4th Cir. 2011) (denying CAT protection where a respondent did not

demonstrate a specific risk of harm to himself). The applicant cannot

establish eligibility for CAT protection by stringing together a “series of

suppositions” to show that torture is more likely than not to occur and instead

must shows that each step in the hypothetical chain of events is more likely

than not to happen. Matter of J-F-F-, 23 I&N Dec. 912, 917–18 (A.G. 2006);

see also Matter of M-B-A-, 23 I&N Dec. 474, 479 (BIA 2002) (rejecting a

CAT claim based upon a chain of assumptions and the applicant’s subjective

fear of what might happen).

The Immigration Judge’s predictive factual findings draw unsupported

inferences from the record and fall short of demonstrating that the applicant

has a greater than 50 percent chance of being tortured upon removal to

El Salvador. See Kerr, 66 F.4th at 468 (holding that the applicant must

demonstrate that the aggregate risk of torture exceeds 50 percent). Although

some individuals arrested and detained under the state of exception as

suspected gang members have been abused or died while in detention, the

record does not establish a clear probability of future torture for the applicant.

Thus, although there is no clear error in the Immigration Judge’s finding

that the applicant will likely be identified as a criminal deportee with visible

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gang tattoos and detained upon return to El Salvador, we disagree with the

Immigration Judge’s conclusion that the applicant has satisfied his burden of

proving that it is more likely than not that he will suffer harm amounting to

“torture” by, at the instigation of, or with the consent or acquiescence of a

public official, even considering his sexuality.

See 8 C.F.R.

§§ 1208.16(c)(2), 1208.18(a)(1); see also Matter of R-A-F-, 27 I&N Dec.

at 779 (emphasizing that the Board reviews de novo the ultimate question of

whether the alien’s predicted harm satisfies the legal definition of torture);

Paredes, 2025 WL 1249367, at *9 (concluding that the BIA’s reversal of an

Immigration Judge’s grant of CAT protection was “was not only reasonable

but compelled by the evidentiary gaps in the record”). As the cumulative

record does not establish the applicant would likely be tortured by, at the

instigation of, or with the consent or acquiescence of a Salvadoran public

official, we need not remand for additional factfinding.

See

Pullman-Standard v. Swint, 456 U.S. 273, 292 (1982) (“[R]emand is the

proper course unless the record permits only one resolution of the factual

issue.”); accord N.C. State Conf. of NAACP v. McCrory, 831 F.3d 204, 220

(4th Cir. 2016). Accordingly, DHS’ appeal will be sustained, and the

Immigration Judge’s grant of CAT protection will be vacated. The applicant

will be removed pursuant to his prior removal order.

ORDER: DHS’ appeal is sustained.

FURTHER ORDER: The Immigration Judge’s order dated

December 13, 2024, granting protection 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 the Department of Homeland

Security, 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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