A Quick Note Regarding Matter of A-H-D- in the 2d Circuit

I  just wanted to raise a quick point regarding the application of the Board of Immigration Appeal’s recent holding in Matter of A-H-D-, 29 I&N Dec. 642 (BIA 2026) within the Second Circuit.

In A-H-D-, the BIA overturned an Immigration Judge’s determination that the asylum seeker had suffered past persecution during his three day detention without charges. The Board recounted that the asylum applicant had been beaten on the first day “but testified that he did not suffer significant injuries from the beating and did not seek medical treatment.” A-H-D- at 644. Referencing Ninth Circuit case law (as the case arose under that circuit’s jurisdiction), the Board did not find that the applicant’s treatment constituted past persecution. Id.

Where this holding is raised in cases arising within the jurisdiction of the Second Circuit, practitioners and adjudicators should be aware of Beskovic v. Gonzales, 467 F.3d 223 (2d Cir. 2006), which held that even a minor beating may constitute persecution if it occurs in detention. 

To quote from the decision:

They must also be sensitive to the fact that even mistreatment that, in other contexts, could fairly be characterized as “the mere annoyance and distress” of harassment...can take on an entirely different character when officially inflicted on an individual while detained on account of protected grounds. In other words, while “the difference between harassment and persecution is necessarily one of degree,”...the degree must be assessed with regard to the context in which the mistreatment occurs. The BIA must, therefore, be keenly sensitive to the fact that a “minor beating” or, for that matter, any physical degradation designed to cause pain, humiliation, or other suffering, may rise to the level of persecution if it occurred in the context of an arrest or detention on the basis of a protected ground.

Beskovic v. Gonzales, 467 F.3d 223, 226 (2d Cir. 2006).

Beskovic remains good law, and conflicts with the Board’s holding in A-H-D-, which post-Loper Bright can no longer claim entitlement to Chevron deference.