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Matter of R-A-F-, Respondent

Decided by Attorney General February 26, 2020

U.S. Department of Justice

Office of the Attorney General 

(1) The Board of Immigration Appeals should consider de novo the application of law to 

the facts of this case, including whether the deprivations that the respondent would be 

likely to encounter upon removal to Mexico would constitute “torture” within the 

meaning of the Department of Justice regulations implementing 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).

(2) To constitute “torture” under these regulations, an act must, among other things, “be 

specifically intended to inflict severe physical or mental pain or suffering.” 8 C.F.R. 

§ 1208.18(a)(5). “‘[T]orture’ does not cover ‘negligent acts’ or harm stemming from a 

lack of resources.” Matter of J-R-G-P-, 27 I&N Dec. 482, 484 (BIA 2018) (citing 

Matter of J-E-, 23 I&N Dec. 291, 299, 301 (BIA 2002)).

(3) To constitute “torture,” an act must also be motivated by “such purposes as obtaining 

from him or her or a third person information or a confession, punishing him or her for 

an act he or she or a third person has committed or is suspected of having committed, 

or intimidating or coercing him or her or a third person, or for any reason based on 

discrimination of any kind.” 8 C.F.R. § 1208.18(a)(1).

BEFORE THE ATTORNEY GENERAL 

Pursuant to 8 C.F.R. § 1003.1(h)(1)(i) (2019), I direct the Board of 

Immigration Appeals (“Board”) to refer this case to me for review of its 

decision. With the case thus referred, I hereby vacate the Board’s decision 

and remand this case for review by a three-member panel. 

The Department of Homeland Security (“DHS”) seeks to remove the 

respondent to Mexico, but the respondent contends that upon his return, he 

would be sent to a Mexican mental health care facility whose poor conditions 

rise to the level of “torture.” The respondent therefore seeks deferral of 

removal under regulations implementing 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) (“CAT”). See 8 C.F.R. § 1208.17(a) (2019). 

Because the respondent was convicted of the attempted sexual abuse of a 

child, he is not eligible for asylum or withholding of removal, see section 

208(b)(2)(A)(ii) of the Immigration and Nationality Act, 8 U.S.C. 
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§ 1158(b)(2)(A)(ii) (2018); 8 C.F.R. § 1208.16(d)(2)–(3) (2019), but he may 

qualify for deferral of removal, see 8 C.F.R. §§ 1208.16(c)(4), 1208.17(a). 

To so qualify, “[t]he burden of proof is on [the respondent] to establish 

that it is more likely than not that he or she would be tortured if removed to 

the proposed country of removal.” 8 C.F.R. § 1208.16(c)(2). In Matter of 

R-A-F-, the Board dismissed an appeal by DHS of the immigration judge’s 

decision granting the respondent’s application for deferral of removal. The 

Board concluded that “we discern no clear error in the Immigration Judge’s 

determination that the respondent established that it is more likely than not 

that he will be tortured by or at the instigation of or with the consent or 

acquiescence (including willful blindness) of a public official or other person 

acting in an official capacity in Mexico.” Id., slip op. at 2. 

The Board’s decision was contrary to the law. Although the Board 

reviews an immigration judge’s factual findings for clear error, it reviews de 

novo “questions of law, discretion, and judgment and all other issues in 

appeals,” including the application of law to fact. 8 C.F.R. § 1003.1(d)(3)(i), 

(ii); see also Board of Immigration Appeals: Procedural Reforms to Improve 

Case Management, 67 Fed. Reg. 54878, 54888–89 (Aug. 26, 2002) (“[T]he 

Board members will retain their ‘independent judgment and discretion,’ 

subject to the applicable governing standards, regarding the review of pure 

questions of law and the application of the standard of law to those facts.”); 

Cruz-Quintanilla v. Whitaker, 914 F.3d 884, 889 (4th Cir. 2019) (recognizing 

that the Board “review[s] de novo ‘all other issues,’ including, in cases 

involving mixed questions of law and fact, the application of the governing 

legal standard to the facts found by the immigration judge”). The Board’s 

conclusion that the immigration judge did not commit clear error improperly 

merged the factual and legal questions presented by the respondent’s claim 

that he was likely to be tortured if removed to Mexico. While the 

immigration judge’s “prediction as to ‘what would likely happen’ to the 

[respondent] if removed” may have been a factual determination that the 

Board reviews only for clear error, “whether that predicted outcome satisfies 

the regulatory definition of ‘torture’ . . . constitutes a ‘legal judgment’ subject 

to de novo review, as it necessarily involves ‘applying the law to decided 

facts.’” Cruz-Quintanilla, 914 F.3d at 890 (quoting Turkson v. Holder, 667 

F.3d 523, 528 (4th Cir. 2012)); see also Myrie v. Att’y Gen. U.S., 855 F.3d 

509, 516 (3d Cir. 2017) (recognizing that the Board reviews de novo 

“whether the likely harm qualifies as torture under the governing 

regulations”); cf. Matter of Z-Z-O-, 26 I&N Dec. 586, 591 (BIA 2015) 

(“[W]e will review de novo whether the underlying facts found by the 
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Immigration Judge meet the legal requirements for relief from removal or 

resolve any other legal issues that are raised.”).1

On remand, therefore, the Board should consider de novo whether the 

deprivations that the immigration judge found the respondent likely to 

experience upon return to Mexico would rise to the level of torture under the 

governing CAT regulations and the relevant precedents. In doing so, the 

Board should keep in mind that, to constitute torture, “an act must be 

specifically intended to inflict severe physical or mental pain or suffering.” 

8 C.F.R. § 1208.18(a)(5) (2019) (emphasis added). The Board has 

previously recognized, in applying the specific intent requirement to another 

case in which the respondent claimed that the poor conditions in Mexican 

mental health facilities would constitute torture, that “‘torture’ does not cover 

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

J-R-G-P-, 27 I&N Dec. 482, 484 (BIA 2018) (citing Matter of J-E-, 23 I&N 

Dec. 291, 299, 301 (BIA 2002)). It is not enough to show that “the 

substandard conditions in mental health facilities, pretrial detention, and 

prisons in Mexico are the result of neglect, lack of resources, or insufficient 

training and education,” particularly where the government is making 

“efforts to improve those conditions.” Id. at 487. 

The courts of appeals have affirmed this interpretation of the CAT 

regulations. In Villegas v. Mukasey, 523 F.3d 984 (9th Cir. 2008), for 

instance, the Ninth Circuit considered whether the “terrible squalor” of a 

Mexican mental health facility would amount to “torture.” Id. at 989. The 

court concluded that, even though the reported conditions were “deplorable,” 

they did not evince the kind of specific intent to cause pain and suffering that 

was required to establish torture. Id.; see also, e.g., Oxygene v. Lynch, 813 

F.3d 541, 548 (4th Cir. 2016) (“In re J-E- requires a CAT claimant to 

demonstrate that the state actor who mistreats him desires to cause his severe 

 

1 This case arises out of the United States Court of Appeals for the Tenth Circuit, which 

similarly recognizes that the Board reviews de novo the application of law to a given set 

of facts. See, e.g., Xue v. Lynch, 846 F.3d 1099, 1105 (10th Cir. 2017) (“[T]he BIA has 

specifically determined that the ultimate resolution whether a given set of facts amount to 

persecution is a question of law reviewed de novo.”). In reviewing the Board’s decisions 

under the CAT, the Court of Appeals has recognized that “a request for protection under 

the CAT involves factual determinations reviewed for substantial evidence.” Htun 

v. Lynch, 818 F.3d 1111, 1118 (10th Cir. 2016). But the court of appeals’ deferential 

review of a final removal order differs from the Board’s review of an immigration judge’s 

decision. Compare 8 U.S.C. § 1252(b)(4) (2018), with 8 C.F.R. § 1003.1(d)(3); see also 

Xue, 846 F.3d at 1105–06 (recognizing the difference between the standard of review 

applied by the court of appeals and the Board). This distinction reflects the general 

“[j]udicial deference in the immigration context” to the Board’s decisions, which give

“ambiguous statutory terms concrete meaning through a process of case-by-case 

adjudication.” Negusie v. Holder, 555 U.S. 511, 517 (2009) (internal quotations marks 

omitted). 
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pain and suffering, and is not merely negligent nor reckless as to the risk. . . . 

[T]his interpretation accords with the prevailing meaning of specific intent 

and reflects the likely wish of the President and Senate to incorporate that 

meaning into the CAT regulations.”); Auguste v. Ridge, 395 F.3d 123, 153 

(3d Cir. 2005) (“As the BIA found in Matter of J-E-, the prison conditions, 

which are the cause of the pain and suffering of the detainees, result from 

Haiti’s economic and social ills, not from any intent to inflict severe pain and 

suffering on detainees by, for instance, creating or maintaining the deplorable 

prison conditions.”); Pierre v. Gonzales, 502 F.3d 109, 111 (2d Cir. 2007) 

(“The failure to maintain standards of diet, hygiene, and living space in 

prison does not constitute torture under the CAT unless the deficits are 

sufficiently extreme and are inflicted by government actors (or by others with 

government acquiescence) intentionally rather than as a result of poverty, 

neglect, or incompetence.”). 

The Board should further address the remaining elements of the legal 

definition of torture, again considering de novo whether the facts as found 

by the immigration judge are sufficient to establish each element. Among 

other things, the respondent must show that the Mexican health workers who 

are alleged to engage in torture would do so “by or at the instigation of or 

with the consent or acquiescence of a public official or other person acting 

in an official capacity.” 8 C.F.R. § 1208.18(a)(1). The respondent must also 

establish that the Mexican health workers would be motivated by “such 

purposes as obtaining from him or her or a third person information or a 

confession, punishing him or her for an act he or she or a third person has 

committed or is suspected of having committed, or intimidating or coercing 

him or her or a third person, or for any reason based on discrimination of any 

kind.” Id. Absent these determinations, a claim for protection from removal 

under the CAT must fail. 

The Board on remand thus should review the respondent’s claim 

consistent with the requirements of the CAT regulations and the governing 

precedent. See Matter of J-R-G-P-, 27 I&N Dec. at 487.