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Matter of H-C-R-C-, Respondent

Decided June 20, 2024

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

(1) Applicants bear the burden of establishing their own credibility, and no statute or legal 

precedent compels an Immigration Judge to conclude that an applicant’s testimony is 

credible.

(2) Rape is sufficiently severe to constitute torture and can never be a lawful sanction 

under the Convention Against Torture. 

FOR THE RESPONDENT: Nancy Oretskin, Esquire, Las Cruces, New Mexico

FOR THE DEPARTMENT OF HOMELAND SECURITY: Evan S. Qarana, Assistant 

Chief Counsel

BEFORE: Board Panel: CREPPY, HUNSUCKER, and PETTY, Appellate Immigration 

Judges.

HUNSUCKER, Appellate Immigration Judge:

The respondent, a native and citizen of El Salvador, appeals from the 

Immigration Judge’s April 19, 2023, decision denying his applications for 

asylum and withholding of removal under sections 208(b)(1)(A) and 

241(b)(3)(A) of the Immigration and Nationality Act (“INA”), 8 U.S.C. 

§§ 1158(b)(1)(A), 1231(b)(3)(A) (2018), and protection under the 

regulations implementing the Convention Against Torture (“CAT”).1

 The 

Department of Homeland Security filed a brief opposing the appeal. Because 

we conclude that the Immigration Judge’s credibility determination was 

based on an error of law and the Immigration Judge made insufficient factual 

findings, the record will be remanded.

I. FACTUAL AND PROCEDURAL HISTORY

The respondent claims he suffered past persecution and fears future 

persecution at the hands of the police and gang members in El Salvador. He

1 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)–1208.18 (2020).
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testified that he was detained and falsely accused of a crime by police during 

a sweep of his neighborhood. The respondent testified that he stood up to a 

corrupt police officer and, in retaliation, was jailed, beaten, and transferred 

to a prison for gang members. He further testified that he was beaten and 

raped in prison. After his release from prison, the respondent allegedly was 

detained twice by the police on suspicion of being a gang member and beaten 

and sexually assaulted. 

The Immigration Judge found “aspects of the respondent’s testimony 

speculative, vague” and seemingly “not plausible.” However, the 

Immigration Judge concluded that “in light of precedent, the court finds it’s 

compelled to conclude respondent was a credible witness.” Notwithstanding 

this finding, the Immigration Judge questioned whether the respondent was, 

in fact, sexually assaulted by police officers and concluded that the 

respondent had not established eligibility for CAT protection because the 

likelihood of future torture was “speculative.” During the hearing, when

addressing whether the respondent had been tortured in the past, the 

Immigration Judge said that rape “may not be pleasant, but it’s not torture,” 

and stated that rape in prison by gang members is “not torture, because he’s 

in prison for hav[ing] committ[ed] a crime. It’s [a] lawful sanction[].”2

On appeal, the respondent argues that having found him credible, the 

Immigration Judge erred by failing to meaningfully credit his evidence. 

Specifically, the respondent claims that “after finding [the respondent] 

credible, the IJ must accept as true all the facts to which [the respondent] 

testified.” The respondent also claims he was denied due process when the 

Immigration Judge advanced the hearing date without providing the 

respondent sufficient time to prepare his case. Finally, the respondent 

requests that his case be assigned to a different Immigration Judge on 

remand.

II. CREDIBILITY

An applicant for asylum or withholding of removal bears the burden of 

proof to establish eligibility for relief or protection from removal. See

INA §§ 208(b)(1)(B)(i), 240(c)(4)(A), 241(b)(3)(C), 8 U.S.C. 

§§ 1158(b)(1)(B)(i), 1229a(c)(4)(A), 1231(b)(3)(C) (2018); see also Matter 

of S-M-J-, 21 I&N Dec. 722, 723 (BIA 1997). An applicant’s testimony 

alone may be sufficient to satisfy this burden, “but only if the applicant 

satisfies the trier of fact that the applicant’s testimony is credible, is 

2 We recognize that the Immigration Judge’s oral comments are open to differing 

interpretations. In that regard, the lawful sanction to which he was referring may have been 

the respondent’s imprisonment, or he may have been inadvertently conflating acquiescence 

with severity of harm rather than opining whether rape in prison is a lawful sanction.
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persuasive, and refers to specific facts sufficient to demonstrate that the 

applicant is a refugee.” INA § 208(b)(1)(B)(ii), 8 U.S.C. § 1158(b)(1)(B)(ii); 

see also 8 C.F.R. § 1208.16(c)(2) (allocating the burden of proof to the 

applicant in the context of CAT protection).

In Immigration Court, there is no presumption that an applicant 

is credible. INA §§ 208(b)(1)(B)(iii), 240(c)(4)(C), 8 U.S.C. 

§§ 1158(b)(1)(B)(iii), 1229a(c)(4)(C). Applicants bear the burden of 

establishing their own credibility, just as they bear the burden of proof on the 

other elements needed to establish eligibility for relief or protection. See

Garcia v. Holder, 749 F.3d 785, 791 (9th Cir. 2014) (“A petitioner carries 

the burden of persuading the fact finder that the evidence offered is 

credible.”). The lack of an explicit adverse credibility determination affords 

the respondent a rebuttable presumption of credibility on appeal to the Board, 

“[b]ut no such presumption applies in antecedent proceedings before an IJ.” 

Garland v. Ming Dai, 593 U.S. 357, 367–68 (2021); see also INA 

§§ 208(b)(1)(B)(iii), 240(c)(4)(C), 8 U.S.C. §§ 1158(b)(1)(B)(iii), 

1229a(c)(4)(C).

An Immigration Judge may credit all, some, or none of an applicant’s 

testimony, so long as the finding considers “the totality of the circumstances 

and all relevant factors.” INA §§ 208(b)(1)(B)(iii), 240(c)(4)(C), 8 U.S.C. 

§§ 1158(b)(1)(B)(iii), 1229a(c)(4)(C); see also Ming Dai, 593 U.S. at 366

(noting an Immigration Judge, “like any reasonable factfinder, is free to 

‘credit part of [a] witness’ testimony without’ necessarily ‘accepting it all’”

(alteration in original) (quoting Banks v. Chi. Grain Trimmers Ass’n., 

390 U.S. 459, 467 (1968))). This finding may be based, among other factors, 

on “the inherent plausibility of the applicant’s or witness’s account, the 

consistency between the applicant’s or witness’s written and oral 

statements . . . , the internal consistency of each such statement, the 

consistency of such statements with other evidence of record . . . , and any 

inaccuracies or falsehoods in such statements.” INA §§ 208(b)(1)(B)(iii), 

240(c)(4)(C), 8 U.S.C. §§ 1158(b)(1)(B)(iii), 1229a(c)(4)(B). If the 

Immigration Judge finds the respondent not credible, that finding “must be 

supported by specific and cogent reasons.” Wang v. Holder, 569 F.3d 531, 

537 (5th Cir. 2009) (quoting Zhang v. Gonzales, 432 F.3d 339, 344 (5th Cir. 

2005)).

However, the absence of a clear adverse credibility finding does not mean 

the respondent’s testimony must be deemed objectively true. See Ming Dai, 

593 U.S. at 365–66 (explicitly rejecting the “deemed-true-or-credible rule”). 

The INA provides that when determining whether a respondent has met his 

burden of proof, the agency “may weigh the credible testimony along with 

other evidence of record.” INA § 208(b)(1)(B)(ii), 8 U.S.C. 

§ 1158(b)(1)(B)(ii). Thus, even if we or the Immigration Judge treat the 
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respondent’s evidence as credible, we need not find the evidence persuasive 

or sufficient to meet the requisite burden of proof. Ming Dai, 593 U.S. at 371. 

“It’s easy enough to imagine that a factfinder might not describe the plaintiff 

as lacking credibility—in the sense that she was lying or not ‘worthy of 

belief,’—yet find that her testimony on a key fact was outweighed by other 

evidence and thus unpersuasive or insufficient . . . .” Id. at 372 (citation 

omitted). “It’s not always the case that credibility equals factual accuracy, 

nor does it guarantee a legal victory.” Id.

The Board reviews factual findings for clear error and relies on 

“Immigration Judges to make comprehensive findings of fact, including 

explicit findings as to the credibility of witnesses, rather than just those 

findings pertinent to one issue that the Immigration Judge may deem 

dispositive of the case.” Matter of S-H-, 23 I&N Dec. 462, 465 (BIA 2002); 

see also 8 C.F.R § 1003.1(d)(3)(i) (2020). That was not done here, as the 

Immigration Judge erroneously determined that legal precedent compelled 

him to conclude that the respondent testified credibly. However, no statute 

or legal precedent compels an Immigration Judge to conclude that a 

respondent’s testimony is credible.3

 See, e.g., Ruiz-Colmenares v. Garland, 

25 F.4th 742, 749 (9th Cir. 2022) (holding that the Immigration Judge is not 

obligated to extend an applicant “a presumption of total credibility or the 

benefit of every doubt”); Luna-Romero v. Barr, 949 F.3d 292, 295 (6th Cir. 

2020) (“Since 2005, . . . the asylum statute has given immigration judges 

wide latitude to find testimony not credible.”). An Immigration Judge’s 

fact-finding on credibility is constrained only by the testimony presented and 

other evidence of record. See INA §§ 208(b)(1)(B)(iii), 240(c)(4)(C), 

8 U.S.C. §§ 1158(b)(1)(B)(iii), 1229a(c)(4)(C).

On appeal, the respondent makes numerous arguments challenging 

aspects of the Immigration Judge’s decision on the merits of his applications. 

However, because the Immigration Judge did not make comprehensive 

findings of fact, we cannot make dispositive determinations regarding the 

respondent’s arguments. In this respect, the respondent challenges the 

Immigration Judge’s conclusion that he was convicted of a serious 

nonpolitical crime. “The evaluation of a serious nonpolitical crime is 

conducted on a case-by-case basis considering the facts and circumstances 

presented.” Matter of E-A-, 26 I&N Dec. 1, 3 (BIA 2012). The respondent 

asserts that he was not a member of a gang and did not engage in criminal 

3 Before the United States courts of appeals, “the administrative findings of fact are 

conclusive unless any reasonable adjudicator would be compelled to conclude to the 

contrary.” INA § 242(b)(4)(B), 8 U.S.C. § 1252(b)(4)(B). However, this “compelled to 

conclude” standard has no applicability to an Immigration Judge making findings of fact 

in the first instance or, indeed, to the Board’s review of those findings. See 8 C.F.R. 

§ 1003.1(d)(3)(i) (setting forth the Board’s standard of review).
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activity but was framed by police in an act of retribution. However, some of 

the documentary evidence states that the respondent was a member of the 

18th Street Gang and was convicted in El Salvador for a drug-related offense. 

Thus, further fact-finding is necessary on this issue, particularly considering 

that the Immigration Judge’s credibility finding was premised on an error of 

law.

III. CONVENTION AGAINST TORTURE

The respondent further argues that the Immigration Judge erred in finding 

that he did not suffer past torture and in denying his claim for CAT 

protection. See 8 C.F.R. § 1208.16(c)(3)(i) (directing consideration of past 

torture in assessing the likelihood of future torture). The Immigration Judge 

made statements that could be read to suggest that rape in prison by inmates 

cannot constitute torture as a matter of law because it is a common 

occurrence during incarceration.

Rape clearly rises to the level of torture. It is “an extreme form of cruel 

and inhuman treatment” that causes “severe pain or suffering” and is 

therefore mistreatment sufficiently severe to qualify for protection under the 

CAT where the other elements are established. 8 C.F.R. § 1208.18(a)(1)–(2); 

see Zubeda v. Ashcroft, 333 F.3d 463, 472 (3d Cir. 2003) (“Rape can 

constitute torture. Rape is a form of aggression constituting an egregious 

violation of humanity.”), abrogated on other grounds by Auguste v. Ridge, 

395 F.3d 123, 148 (3d Cir. 2005). As the Immigration Judge noted, torture 

does not include pain or suffering arising from lawful sanctions. 8 C.F.R. 

§ 1208.18(a)(3). However, a lawful sanction must be “judicially imposed” 

or otherwise “authorized by law.” Id. While incarceration is a lawful 

sanction, rape by fellow inmates is not. Additionally, a lawful sanction 

cannot “defeat the object and purpose of the Convention Against Torture to 

prohibit torture.” Id. Thus, rape is sufficiently severe to constitute torture 

and can never be a lawful sanction under the CAT. 

While rape is sufficiently severe to meet the definition of torture under 

the regulations, and past torture must be considered under 8 C.F.R. 

§ 1208.16(c)(3)(i) in determining eligibility for protection under the CAT, 

the severity of past harm is not the only consideration. An applicant must 

also establish “the intent of the persecutor(s), whether the suffering will be 

imposed for one of the purposes specified under the Convention, and whether 

it will likely be inflicted with the knowledge or acquiescence of a 

public official with custody or control over the victim.” Zubeda, 

333 F.3d at 473; see also Matter of J-E-, 23 I&N Dec. 291, 297–99

(BIA 2002). Since further fact-finding is necessary, we cannot currently 

address the merits of the respondent’s application for CAT protection. 
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See Matter of S-H-, 23 I&N Dec. at 464 (recognizing that the Board must 

defer to the factual findings of an Immigration Judge in the absence of clear 

error); see also 8 C.F.R. § 1003.1(d)(3)(i). 

The respondent has requested that, based on an appearance of bias, his 

case be remanded to a different Immigration Judge. As noted above, the 

statements by the Immigration Judge could reasonably be read to suggest 

bias against the respondent’s claim for protection under the CAT. We have 

the authority to reassign a case based on the appearance of bias, in order to 

ensure fairness and impartiality. See Matter of Y-S-L-C-, 26 I&N Dec. 688, 

690–92 (BIA 2015). Remands to a different Immigration Judge are atypical 

and disfavored but are warranted in limited circumstances. To avoid any 

appearance of unfairness, and in an abundance of caution under the facts and 

circumstances in this case, we will direct these proceedings be transferred to 

a different Immigration Judge on remand.

IV. CONCLUSION

On remand, the Immigration Judge should issue a new decision that 

addresses the deficiencies discussed above. Specifically, the Immigration 

Judge should make factual findings regarding the respondent’s credibility 

without according the respondent a presumption of credibility or erroneously 

suggesting that finding the respondent credible is compelled by law. The 

Immigration Judge should then render any necessary conclusions of law 

regarding the merits of the respondent’s applications, including whether the 

respondent committed a serious nonpolitical crime and whether he 

established eligibility for CAT protection.4

On remand, the parties may supplement the record with additional 

evidence and arguments, including those related to any intervening case law. 

In remanding, we express no opinion as to the outcome of these proceedings. 

See Matter of L-O-G-, 21 I&N Dec. 413, 422 (BIA 1996).

ORDER: The appeal is sustained, and the Immigration Judge’s decision 

is vacated.

FURTHER ORDER: The record is remanded to the Immigration 

Court for assignment to a new Immigration Judge and for further proceedings 

consistent with the foregoing opinion and entry of a new decision.

4 The respondent also argues that the rescheduling of his merits hearing from May 16, 

2023, to April 19, 2023, was a violation of his right to due process that prejudiced his 

ability to fully present his claim. However, given that we are remanding this case for 

further proceedings, including the opportunity to supplement the record, this argument is 

moot. Cf. INS v. Bagamasbad, 429 U.S. 24, 25 (1976) (“As a general rule courts and 

agencies are not required to make findings on issues the decision of which is unnecessary 

to the results they reach.”).