Jeffrey S. Chase | Opinions/Analysis on Immigration Law

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A Reason Not to Pretermit?: 2d Circuit Rejects BIA's CAT Reversal

On October 8, the U.S. Court of Appeals for the Second Circuit published an opinion worthy of our interest. I will discuss the court’s opinion, the larger issue it highlights, and why it should give pause to Immigration Judges considering whether to pretermit CAT applications without a hearing pursuant to a new agency policy.

In Villalta Martinez v. Bondi,1 the Second Circuit called out the Board of Immigration Appeals on its claim that an Immigration Judge’s grant of protection under the Convention Against Torture (CAT, for short) was “clearly erroneous” without providing sufficient justification for such conclusion. The court added: “On remand, the BIA will have to either accept the IJ’s findings or, if it can, provide a supportable basis for rejecting them.”2

This is significant because the Board has been using questionable claims of clear error to reverse quite a few CAT grants of late.3 I am going to label this practice as another example of the BIA’s “shadow law,” which I previously defined as “consisting of principles not found in current statute, regulation, or binding case law, and which in fact may contradict applicable law, but which the Board nevertheless subscribes to and tries to slip by the censors….”4

As I summarized the correct standard in my post of a few months ago on A-A-R-, courts have repeatedly and consistently held that “clear error is not a difference of opinion, and not even ‘we think the judge was wrong;’ or even ‘the judge was probably wrong.’ Rather, it’s reserved for situations where the judge screwed up royally in a way that is clear to all, and reached a conclusion that is implausible based on the record.”5

To illustrate just how high the bar is for finding clear error, the U.S. Court of Appeals for the Eleventh Circuit has held that the error must be “beyond the scope of reasonable debate,” adding "To be clearly erroneous, a decision must strike us as more than just maybe or probably wrong; it must ... strike us as wrong with the force of a five-week-old, unrefrigerated dead fish.”6

The Second Circuit (the court that decided Villalta Martinez) has provided an example of clear error: “where an IJ has obviously misunderstood the testimony of a witness and based a finding of fact on that misunderstanding.”7 In other words, if an expert testified that there was a 17 percent chance of someone in the respondent’s position being tortured, and the judge misheard it as 70 percent, and then granted CAT based on the erroneous 70 percent figure, that would be clearly erroneous.

However, this is most certainly not the standard that the Board has been applying. Rather, it has been doing exactly what it is prohibited from doing by the clear error standard, namely, reweighing the evidence itself, reaching its own different conclusion, and then choosing its own take on the evidence over that of the Immigration Judge. As the BIA itself has said, “[a] factfinding may not be overturned simply because the Board would have weighed the evidence differently or decided the facts differently had it been the factfinder.”8  And as the Supreme Court famously held in 1985, “[w]here there are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly erroneous.”9

And yet, the BIA continues to reweigh the evidence to create its own alternative view of the facts, and then chooses its own version over that of the Immigration Judge. As the standard it is violating is one that the Supreme Court delineated 40 years ago, I would expect other circuits to reject the Board’s approach just as the Second Circuit has now done.

In fact, as I am writing this, I have been made aware of a Tenth Circuit published opinion issued today reinstating an Immigration Judge’s grant of asylum that the BIA had reversed by falsely claiming clear error. In Ramos v. Bondi, the Tenth Circuit wrote: “At best, the BIA might have thought the IJ’s findings were ‘possibly or even probably wrong’ — but disagreement with a factual finding does not make it clearly erroneous…We therefore conclude the BIA ‘failed to give deference to the IJ’s findings and improperly engaged in its own fact finding,’ exceeding what the clear-error standard prescribes.”10

Returning to Villalta Martinez, the Second Circuit additionally noted that “the record also includes evidence contrary to the BIA’s conclusion that such reports of torture are anecdotal,” pointing to other non-anecdotal evidence of record that supported the applicant’s claimed likelihood of torture.

This is also noteworthy, because in a number of its decisions in which it improperly reweighed evidence in order to wrongly claim to find clear error, the Board has used the adjective “anecdotal” as a means to minimize evidence of torture contained in human rights reports and expert testimony that lent support to the judge’s CAT grant.11

Given the nature of how incidents of torture are documented, it is not entirely clear what evidence the Board might consider more reliable than what it has chosen to dismiss as merely “anecdotal.” I think we would all benefit from a future decision in which for illustrative purposes, the Board details the evidence that the government relied on in determining that white farmers in South Africa are victims of genocide, warranting their being rushed to the head of the line for refugee admissions.12  Listing the types of evidence that supported the government’s findings of fact on that issue, which the government clearly considers reliable and non-anecdotal, would provide invaluable guidance to those representing members of other at-risk groups in documenting their claims before EOIR to the satisfaction of the agency.

This leads me to the issue of pretermission of CAT claims. The BIA on September 11 issued a precedent decision, Matter of H-A-A-V-,13 holding that Immigration Judges may pretermit applications for asylum, withholding of removal, or CAT protection without holding a hearing on those claims where the written application does not establish eligibility for relief. This is actually something I predicted the first Trump Administration would do, in a June 2018 blog post.14

While the decision said “may,” and not “must,” some judges have nevertheless been relying on H-A-A-V- to pretermit cases at their Master Calendar hearings, thus depriving those individuals appearing before them of the right to a merits hearing on their claims for humanitarian protection.

Not coincidentally, the past few months have seen the issuance of precedent decisions designed to make legitimate claims for asylum, withholding of removal, and CAT appear to lack legal merit, putting bona fide cases at risk of pretermission without hearing. These include previously unpublished decisions of the BIA reversing Immigration Judge CAT grants (which initially applied to the individual applicant only), which the Attorney General later chose to designate for publication as precedent binding on all.15

Where a precedent decision reverses a properly granted CAT claim by incorrectly labeling it as clearly erroneous, it can lead to Immigration Judges believing that cases with similar facts lack legal merit, and may therefore be pretermitted in accordance with Matter of H-A-A-V-. In this manner, individuals with meritorious claims for protection will be denied the right to present those claims in court.

As the Second Circuit’s decision in Villalta Martinez exposed a common erroneous method employed by the Board for denying CAT protection, I will here focus here on the danger of applying H-A-A-V- to pretermit applications for that specific form of protection.

In an amicus brief filed with the Supreme Court in Nasrallah v. Barr, our Round Table of Former Immigration Judges emphasized the unique nature of CAT protection. Unlike other forms of humanitarian protection, CAT imposes an absolute, unconditional obligation without exception to not return anyone to a country where there are substantial grounds for believing they would be tortured.16

Now, we don’t know in advance how many other circuits will vacate BIA reversals of CAT grants for failing to identify clear error, as the Second Circuit did in Villalta Martinez.

But given the recent decisions of the Second and Tenth Circuits discussed above, and that the legal standard for clear error review is a uniform one, with most decisions citing to language from a 40-year-old Supreme Court decision, should cases be pretermitted based on recent BIA decisions employing the same approach to clear error as was rejected by the Second Circuit in VIllalta Martinez, and that that also face a good chance of being vacated on appeal?

In other words, should an Immigration Judge pretermit a CAT application because it bears a similarity to a precedential decision in which CAT was properly granted by an Immigration Judge, but then wrongly reversed by a BIA employing a faulty standard for clear error?  Would denying the right to a full hearing in such cases run afoul of our government’s absolute, unconditional obligation not to remove an individual to a country where there are substantial grounds for believing they will be tortured?

It is hoped that practitioners will raise these most serious questions in court moving forward, and that Immigration Judges will keep those questions foremost in mind in choosing to calendar cases for merits hearings.

Copyright Jeffrey S. Chase 2025. All rights reserved.

Notes:

  1. Villalta Martinez v. Bondi, No. 24-115, 2025 WL 2845204 (2d Cir. Oct. 8, 2025).

  2. Ibid at *4 (quoting Wu Lin v. Lynch, 813 F.3d 122, 131 (2d Cir. 2016).

  3. E.g., see Matter of J-A-, 29 I&N Dec. 253 (BIA 2025); Matter of O-Y-A-E-, 29 I&N Dec. 190 (BIA 2025); Matter of S-S-, 29 I&N Dec. 136 (BIA 2025); Matter of E-Z-, 29 I&N Dec. 123 (BIA 2025); Matter of A-A-F-V-, 29 I&N Dec. 118 (BIA 2025); Matter of A-A-R-, 29 I&N Dec. 38 (BIA 2025).

  4. See my previous post of September 25, “Nexus Update: Matter of M-R-M-S- Vacated,” in which I termed the BIA’s application of a “one central motive” standard for nexus in asylum cases (while claiming to apply the correct “at least one central reason” standard) an example of the Board’s “shadow law.”

  5. Id.

  6. Cox Enters., Inc. v. News-Journal Corp., 794 F.3d 1259, 1272 n.92 (11th Cir. 2015) (quoting Parts & Elec. Motors, Inc. v. Sterling Elec. Inc., 866 F.2d 228, 233 (7th Cir. 1988)).

  7. Wu Lin v. Lynch, supra at 127.

  8. Matter of R-S-H-, 23 I&N Dec. 629, 637 (BIA 2003).

  9. Anderson v. Bessemer City, 470 U.S. 564, 573-74 (1985).

  10. Ramos v. Bondi, Nos. 23-9567, 24-9524, slip op. at 25 (10th Cir. October 15, 2025).

  11. See Matter of J-A-, supra at 257 (stating “[t]he Immigration Judge also erred in his analysis by relying upon a “relatively small number of anecdotal incidents of mistreatment or death…”); Matter of S-S-, supra at 137 (stating that “[a]necdotal reports of some criminal deportees being indefinitely detained in torturous conditions are insufficient to establish that the respondent is more likely than not to have that experience”); Matter of A-A-F-V-, supra at 120 (BIA 2025; Matter of A-A-R-, supra at 41-42.

  12. See PBS, “Fact-checking Trump’s claims of white farmer ‘genocide’ in South Africa,” May 21, 2025, available at: https://www.pbs.org/newshour/politics/fact-checking-trumps-claims-of-white-farmer-genocide-in-south-africa.

  13. Matter of H-A-A-V-, 29 I&N Dec. 233 (BIA 2025).

  14. See my June 24, 2018 blog post, “Are Summary Denials Coming to Immigration Court?”

  15. The above-mentioned precedent decisions Matter of J-A-, Matter of O-Y-A-E-, Matter of S-S-, Matter of E-Z-, and Matter of A-A-F-V- were all unpublished decisions later designated for publication as precedent by the Attorney General. All of these are reversals of CAT grants.

  16. Thanks to Chris Jones, RIchard W. Mark, and Amer Ahmed of the law firm of Gibson, Dunn & Crutcher for their outstanding drafting of our brief in Nasrallah.

JEFF CHASE