The Board of Immigration Appeals (BIA) held that a respondent from El Salvador who was formerly a member of the Salvadoran gang MS-13 could not meet his burden to show he was eligible for deferral of removal under the Convention Against Torture (CAT) even though the BIA deferred to the immigration judge’s (IJ’s) factual finding that he would be imprisoned in El Salvador upon his return. Matter of A-A-R-, 29 I&N Dec. 38 (BIA 2025).

The Respondent came to the United States in 1999. Sometime after his arrival, he joined his local MS-13 gang. In 2006, he was convicted of murder. After serving his sentence, he was deported to El Salvador. He reentered the United States in 2022. After his return, ICE reinstated his removal order, intending to remove him from the United States.

If a noncitizen subject to reinstatement of removal or administrative removal expresses a fear of persecution or torture, he or she must be referred to an asylum officer with U.S. Citizenship and Immigration Services (USCIS) for a reasonable fear interview (RFI). If the asylum officer determines that there exists a reasonable possibility that the noncitizen will face persecution or torture, the case will be referred to an IJ for a “Withholding Only” hearing. At that hearing, the noncitizen is limited to seeking two forms of relief: withholding of removal under the statute, and protection (either withholding or deferral of removal) under the Convention Against Torture (CAT). The IJ cannot grant asylum to a noncitizen in Withholding Only proceedings. To be eligible for CAT, a noncitizen must show that it is more likely than not to be tortured by or at the acquiescence of a public official in the country of removal.

Here, the Respondent sought CAT protection because he asserted that he would be “detained, imprisoned, and tortured in El Salvador because of the government’s state of exception policy and its treatment of gang members.” El Salvador declared a “state of exception” in March 2022. The state of exception permits law enforcement to arrest anyone suspected of belonging to or supporting gangs without further due process. Based on the way that the state of exception has been used in El Salvador, the Respondent feared he would be detained immediately upon arrival to El Salvador and tortured in El Salvador’s prisons by government officials. He also feared torture by MS-13 gang members in prison.

In support of his claim, the Respondent submitted a report from an expert witness, as well as country conditions evidence from the Department of State (DOS) Human Rights Report, Amnesty International, and Human Rights Watch. These reports supported his claim that his gang-related tattoos and serious criminal history would be shared with the Salvadoran government prior to his arrival in the country. Government officials would detain him immediately upon entering El Salvador on a U.S. deportation flight. The evidence he provided showed widespread detention and torture of gang members and former gang members while in prison. The evidence included statements from public officials stating that gang members deserve this treatment. In addition to accounts of torture by the government, the evidence submitted included instances of torture by gang members against former gang members in Salvadoran prisons, with reports that there have been dozens of violent deaths in Salvadoran prisons.

In granting CAT protection, the IJ found that it was more likely than not that the Respondent would be identified as a former gang member, detained by the Salvadoran government, and tortured by public officials and MS-13 gang members in prison. The Department of Homeland Security (DHS) appealed the decision to the BIA, which ultimately overturned the IJ’s decision.

BIA Decision

The BIA first determined that the IJ had not erred in finding that the Respondent would be identified as a gang member and would be detained immediately under the state of exception. The BIA further agreed that the state of exception permits the government to detain suspected gang members without due process and that some gang members and former gang members are tortured in El Salvador’s prisons. However, the BIA disagreed that the IJ’s findings meant that this Respondent was more likely than not to be tortured in El Salvador.

As mentioned above, the record in this case included an expert witness report, the (DOS) Human Rights Report, as well as reports by Amnesty International and Human Rights Watch. The BIA stated that these reports did not establish that torture happened with enough frequency in Salvadoran prisons to meet the more-likely-than-not standard. Additionally, the BIA found the evidence did not meaningfully explain “why he, an over 40-year-old deportee whose gang activity occurred while in the United States” was more likely to be tortured when the examples in the record tended to give examples of younger men who participated in gang activity in El Salvador. Matter of A-A-R- at 42.

The BIA also found that the IJ erred by finding that Salvadoran officials “intentionally and deliberately” created harsh prison conditions. The BIA acknowledged that Salvadoran officials have made public statements stating that gang members deserve poor prison conditions. The BIA relegated this statement to public officials’ “moral judgment about gang members” with no further explanation of how their moral judgments can be meaningfully separated from their actions. The BIA found further error in the IJ’s decision by finding that the IJ did not take into account the Salvadoran government’s efforts to improve prison conditions, as detailed in the (DOS) report. Notably, however, the Salvadoran government made efforts to improve conditions prior to the state of exception in March 2022. Finally, the BIA stated that the risk of torture by other gang members in prison was insufficient to make the Respondent eligible for CAT protection, because he could not show that this torture would be done with the acquiescence of prison officials.

Takeaways

• Human Rights Reports: In Matter of A-A-R-, the BIA placed greater weight on the (DOS) Human Rights Report than reports from nongovernmental organizations or the expert witness. Advocates should directly address any information from the (DOS) Human Rights Report that could be adverse to their clients’ claim. This can be accomplished by explaining how it is distinguishable from a client’s case, through other country conditions materials or expert testimony. It also may include pointing out that circumstances have changed since the report was written. For example, the BIA relied on pre-state of exception policy to Salvadoran prisons without grappling with the horrific conditions that have been documented in recent months and years since the state of exception was implemented and the mega-prison CECOT opened in January 2023. Notably, the 2024 Human Rights Reports have been delayed beyond their normal timeline for release, and there has been reporting indicating that (DOS) officials have been asked to dramatically slim down these reports. The sections of the reports that will be removed or reduced include those that criticized foreign governments for denying freedom of movement or peaceful assembly, retaining political prisoners without due process, or restrictions on free and fair elections. The reports will also remove sections on reports of violence and discrimination against LGBTQ+ people, involuntary or coercive medical or psychological practices, arbitrary or unlawful interference with privacy, serious restrictions to internet freedom, extensive gender-based violence, and violence or threats of violence targeting people with disabilities. NPR, among other outlets, has reported on these changes. Practitioners may consider including proof of this reporting, such as a copy of the NPR article, as well as prior versions of the reports, with their evidence submissions to the immigration court in order to show that DOS Human Rights Reports are not as comprehensive or reliable as they once were.

   

• Expert Testimony: The respondent in A-A-R- submitted a report by an expert, but the expert did not testify. Experts can provide a greater level of detail and assist in addressing gaps and/or address adverse information in country conditions reports, especially when they provide testimony in court. It is common for government officials to publicly state they are making efforts to improve conditions that put clients at risk, while failing to take any action to follow up on those statements. Where possible, expert testimony should be taken during a client’s merits hearing that refutes claims from government officials and gives a better sense of conditions on the ground. Even when an expert is unable to testify, advocates should consider working with an expert to tailor a written report to the client’s circumstances. The Center for Gender and Refugee Studies (CGRS) maintains a comprehensive database of available experts that can be filtered by country or form of relief.

   

• Trump Administration Priorities: El Salvador’s state of exception has been brought to the forefront of the news following the deportation of Venezuelans to El Salvador in March 2025. The Venezuelans and others are held in the mega-prison CECOT, which was built in 2022 following the state of exception. Conditions there are horrific, with detainees deprived of any contact with the outside world, including family members, friends, or attorneys. The BIA’s decision aligns with the Trump administration’s contention that the Salvadoran prisons are an appropriate place to deport alleged gang members without the opportunity to seek CAT protection. Advocates should be aware of Trump administration policies, which could influence the outcome of a client’s case, as the agency may be under political pressure to find that conditions in these prisons do not amount to torture.

   

• Standards of Review: The BIA’s review of an IJ’s decision depends on the specific issue under consideration. When either party appeals based on a fact-finding error by an IJ, the BIA reviews the decision under a “clear error” standard of review. Under that standard, the BIA does not reweigh factual findings by the IJ, but rather determines if any findings were clearly erroneous.

  When either party appeals a legal error, the BIA reviews the legal question under a “de novo” standard of review. Under that standard, the BIA does not give the IJ’s legal decision any deference. Neither standard of review permits the BIA itself to engage in fact-finding on behalf of the IJ.

  In overturning the IJ’s decision, the BIA stated it was engaging in de novo review and was not disturbing the facts found by the IJ. The BIA explained that its decision evaluated whether the facts found by the IJ met the more-likely-than-not standard required by the CAT. However, there is reason to question whether this is true, as the BIA is clearly weighing the evidence differently than the IJ did. The BIA characterized the Respondent’s evidence as anecdotal and reinterpreted country conditions evidence. The BIA decision fails to explain how its decision does not constitute impermissible fact-finding.

  The BIA’s decision is especially concerning given the Third Circuit’s recent decision in Arreaga Bravo v. Att'y Gen. United States, 27 F.4th 182 (3d Cir. 2022). In that case, the Third Circuit admonished the BIA for not applying the proper standard of review when considering a CAT protection claim that the IJ had granted. The Third Circuit held that “it was not the BIA's role to determine whether it agreed with the IJ's weighing of the evidence in [petitioner’s] favor” but rather to point out factual findings that were clearly erroneous. Id. At 187. While A-A-R- cites the Third Circuit’s decision in Arreaga Bravo, it does not fully engage with its reasoning. Practitioners should continue to emphasize that the BIA cannot engage in fact-finding on behalf of the IJ. On appeal, clearly outline facts found by the IJ and make clear that those facts are subject to the clear error standard of review.

   

• The Importance of Building a Record: Advocates should continue to prepare CAT cases, both for merits hearings and future appeals. Evidence should include country conditions reports and be as tailored to the client as possible. Keep in mind that A-A-R- does not permit an IJ to deny CAT based on the use of general country conditions evidence alone. IJs may need to be reminded that they are required to make an individual determination based on the record before them. It is also important to emphasize that the A-A-R- decision does not specifically discuss the CECOT facility, which is now infamous for its human rights violations. Practitioners should also consider arguing — apart from any physical harm imposed — that complete separation from the outside world rises to the level of torture. Recall that the CAT regulations allow for the possibility that mental suffering can, in certain specific situations, constitute torture. 8 CFR § 1208.18(a). Consider building a record specific to the conditions in CECOT, a prison which is known for its inhumane treatment of prisoners and its complete severing of their contact with the outside world.