The Board of Immigration Appeals (BIA) issued three precedential decisions in July 2025 relating to the legal standards for protection under the Convention Against Torture (CAT). The BIA found all three noncitizens ineligible for protection under CAT, overturning the grants from the Immigration Judge (IJ) after the Department of Homeland Security (DHS) appealed. This article analyzes the BIA’s three decisions pertaining to CAT protection.

Matter of A-A-F-V-

In the first case, Matter of A-A-F-V-, the BIA overturned a grant of CAT protection to a bisexual “criminal deportee with visible gang tattoos” from El Salvador who sought protection from deportation in part because of his fear of imprisonment in one of El Salvador’s infamous prisons. 29 I&N Dec. 118 (BIA 2025). At the trial level, the IJ had found that it was more likely than not that the respondent would be imprisoned and tortured in El Salvador. In overturning the grant of CAT protection, the BIA found that while the IJ did not clearly err in determining that A-A-F-V- would more likely than not be detained in El Salvador, the BIA found that imprisonment in El Salvador would not meet the legal definition of torture. Specifically, the BIA found that there were only “anecdotal incidents of mistreatment or death” in prison, that substandard prison conditions do not amount to torture as a matter of law, and that imprisonment of former gang members amounts to a “lawful sanction.” Id. at 120-21. The BIA’s decision contained little analysis of how the noncitizen’s sexual orientation could put him at risk, suggesting a results-driven outcome aligned with Trump administration policies aimed at deporting alleged gang members to prison in El Salvador without affording them the opportunity to seek CAT protection. In this decision (and a similar recent decision called Matter of A-A-R-, 29 I&N Dec. 38 (BIA 2025), the BIA also appears to improperly engage in factfinding and substitute its view for that of the IJ.

Matter of E-Z-

In the second case, the BIA overturned a grant of CAT protection to a Russian citizen who sought asylum, withholding of removal, and CAT protection based on his opposition to the Russia-Ukraine war. Matter of E-Z-, 29 I&N Dec. 123 (BIA 2025). The BIA upheld the IJ’s denial of asylum and withholding of removal based on lack of nexus to a protected ground but found that the IJ had erred in finding the respondent eligible for CAT protection, determining that the IJ engaged in “speculation or conjecture” that was not supported by the record. Id. at 126. The BIA found a lack of evidence of torture of those similarly situated to the respondent – Russian citizens who had opposed the war and returned to Russia. As such, the BIA found that the IJ made a series of clearly erroneous factual findings that warranted overturning the grant of protection.

Matter of S-S-

In the third case, Matter of S-S-, 29 I&N Dec. 136 (BIA 2025), the BIA overturned a grant of CAT protection to a Haitian national suffering from severe mental health issues, including schizophrenia. The BIA found no clear error in the IJ’s determination that the respondent would be imprisoned in Haiti upon return, but found that the conditions he would face in detention would not rise to the level of torture. The BIA also found that paying a bribe could limit the respondent’s time in prison. In the BIA’s view, this factor would make the conditions there fall short of torture because the detention would not necessarily be prolonged. Again, the BIA minimized the conditions in Haitian prisons (and in Haiti overall) by characterizing conditions as a result of budgetary and poor economic issues, rather than by a specific intent by government officials to torture individuals there.

Takeaways for Practitioners:

The BIA Is Not a Neutral Decisionmaker

These decisions underscore the extent to which the BIA has functioned in alignment with the Trump administration’s enforcement priorities. Notably, all three precedential decisions were previously unpublished cases that Attorney General Pam Bondi chose for publication. Whether through the removal of BIA members appointed under the Biden administration or the issuance of results-oriented decisions that mirror the extreme policies championed by Stephen Miller, immigration practitioners cannot reasonably expect fair or impartial consideration of their cases by the BIA.

Make Your Record for Federal Court Appeal

Given the current reality, it is all the more important that practitioners make a record for federal court appeal. Note that IJs and the BIA are required to consider each case on the record before it. IJs should not deny a CAT claim based on fear of imprisonment in El Salvador or Haiti merely by citing to A-A-F-V- or S-S-. In theory, a different record and set of facts could produce a different outcome and provide practitioners with a basis for seeking federal court review. Practitioners should also keep in mind the grounds for summary dismissal of appeals under the regulations at 8 CFR § 1003.1(e)(4)(ii) and make a record that avoids those grounds.

As an example of new evidence that could be included in a case moving forward, the very day that the A-A-F-V- decision was published, Kilmar Abrego Garcia’s attorneys submitted an amended complaint outlining the horrific torture that he endured in the prison CECOT in El Salvador. The complaint describes his being struck by wooden batons by guards, being forced to kneel from 9 p.m. to 6 a.m. (with guards striking anyone who fell over from exhaustion), and observing prisoners violently harm each other with no intervention from guards. Similarly, hundreds of imprisoned Venezuelan men were recently released from CECOT in a prisoner exchange, and they too have described shocking conditions amounting to what they call a “horror movie,” including regular beatings. Their accounts are chronicled in a recent Washington Post article, available here. The conditions described by Mr. Abrego Garcia and the Venezuelans amount to the intentional infliction of torture by government officials, not merely “severe overcrowding and lack of food” as the BIA dismissingly referred to it in the A-A-F-V- decision. Id. at 120. The amended complaint by Mr. Abrego Garcia and accounts from the released Venezuelans constitute striking new evidence, describing the conditions at CECOT that can be used to support a claim that conditions in El Salvador’s prisons amount to torture.

Remember the Standard of Review

The BIA does not engage in fact-finding and must defer to IJ findings of fact unless they are clearly erroneous. The BIA reviews questions of law de novo. Practitioners should be sure to highlight what the standards of review should be in their briefs and explain how these standards apply to the specifics of each particular case.

In these decisions, the BIA appears to be blurring the line between questions of law and questions of fact and substituting its judgment for that of the factfinder. The circuit courts have previously criticized the BIA for this. For example, in Arreaga Bravo v. Att'y Gen. United States, 27 F.4th 182 (3d Cir. 2022), the Third Circuit criticized 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 we do not know exactly what the record below contained in each case, this remains a possible avenue of appeal for a determined federal court litigator.

Conclusion

As the BIA continues to publish politically driven, results-oriented decisions, practitioners must be meticulous in developing the record to preserve grounds for federal court review. Even practitioners who do not litigate in federal court must develop the strongest possible evidentiary record to position their clients for success on appeal. The three recent decisions overturning grants of CAT protection are emblematic of the deeply flawed and politically influenced decision-making characterized by the BIA under the Trump administration.