“From Ancient Warrants to Modern Torture Claims” – The Eleventh Circuit Clarifies the Evidentiary Threshold for CAT Protection When Persecution Occurred Decades Ago

Introduction

In Olakunle A. Oshodi v. U.S. Attorney General, No. 23-12400 (11th Cir. Aug. 11, 2025) (unpublished), the Eleventh Circuit confronted a familiar but increasingly complex scenario: a long-term U.S. resident with a criminal record seeks Convention Against Torture (“CAT”) protection on the basis of persecution suffered in his home country more than forty years earlier. The petitioner, Mr. Olakunle Oshodi, a Nigerian national who entered the United States illegally in 1982, claimed that an outstanding 1981 Nigerian arrest warrant and his prior torture as a political activist made it “more likely than not” he would be tortured if removed.

After a procedural odyssey spanning two decades—including an en banc remand from the Ninth Circuit, a federal narcotics conviction, and a venue transfer—the Immigration Judge (“IJ”) and the Board of Immigration Appeals (“BIA”) denied CAT deferral. The Eleventh Circuit’s decision resolves two principal issues:

whether the BIA gave reasoned consideration to the petitioner’s evidence; and
whether substantial evidence supported the BIA’s factual finding that torture in Nigeria was not “more likely than not.”

In doing so, the court crystallises an important evidentiary rule: remote past persecution coupled with speculative evidence of an antiquated warrant does not, without concrete corroboration and an analysis of current country conditions, satisfy the CAT burden of proof.

Summary of the Judgment

The Eleventh Circuit (Judges Jordan, Luck, and Carnes, per curiam) denied the petition for review. Key holdings include:

Reasoned Consideration – The BIA satisfied its minimal duty by addressing the “highly relevant” evidence, accurately summarising the record, and giving facially plausible reasons for dismissing Oshodi’s claim.
Substantial Evidence – A reasonable adjudicator could conclude that current Nigerian conditions, the 40-year lapse, and lack of corroboration about the warrant mean Oshodi failed to show a >50% chance of torture with government acquiescence.
Remote Persecution & Changed Conditions – The court endorsed the agency’s view that decades-old political violence loses probative weight absent evidence linking it to present-day risks.

Analysis

1. Precedents Cited and Their Influence

Nasrallah v. Barr, 590 U.S. 573 (2020) – Confirmed judicial review of CAT factual findings, but under a highly deferential substantial-evidence standard. The panel repeatedly invoked this framework.
Ali v. U.S. Att’y Gen., 931 F.3d 1327 (11th Cir. 2019) – Articulates the “reasoned consideration” test. The judgment uses Ali’s three-part rubric (misstated record, unexplained conclusions, unreasonable justifications) to reject Oshodi’s procedural challenge.
Garland v. Ming Dai, 593 U.S. 357 (2021) – Emphasises deference to agency fact-finding even where testimony is “credible.” The court cites Ming Dai to explain why Oshodi’s credibility did not compel relief.
Reyes-Sanchez, 369 F.3d 1239 (11th Cir. 2004); Todorovic, 621 F.3d 1318 (11th Cir. 2010); Lingeswaran, 969 F.3d 1278 (11th Cir. 2020) – These cases codify the CAT “more likely than not” and “government acquiescence” standards.
Moore v. Ashcroft, 251 F.3d 919 (11th Cir. 2001) – Removal does not moot CAT petitions. This allows review even though Oshodi was already deported.
Secondary authorities: Silva (weight of evidence); Jean-Pierre (generalised violence insufficient); Ruiz-Colmenares (9th Cir. – time gap dilutes risk); 8 C.F.R. §§ 208.16 & 208.17 (governing CAT standards); 2021 State Department Country Report (country-conditions evidence).

Collectively, these precedents solidify a deferential review posture and highlight that statutory, regulatory, and factual change can sever the causal chain between old persecution and future torture.

2. Legal Reasoning

a. Reasoned Consideration

The court emphasised the “modest” threshold: the BIA must convince the reviewing court it has “heard and thought” about the case. Applying Ali, the panel found no (i) misstatement of the record, (ii) unexplained logic, or (iii) irrational justification. Notably, the BIA acknowledged but discounted five categories of evidence: Oshodi’s 1970-80s political activism, the alleged 1981 warrant, the severity of past torture, supposed party rivalry, and generalized human-rights abuses in Nigeria. The acknowledgement, coupled with a rational explanation (change of government, time elapsed, lack of corroboration), sufficed.

b. Substantial Evidence

Relying on Nasrallah, the panel re-stated that it may not “reweigh the evidence.” Key factual points sustaining the BIA’s finding were:

Persecution occurred 40+ years ago under a different regime.
Nigeria has since adopted civilian, multiparty democracy; a progressive president now leads the All Progressives Congress.
Torture was criminalised in 2017 under Nigerian law ⎯ a signal of changed state policy.
The claim of an outstanding warrant rested on hearsay from relatives and informal sources, without documentary proof.
The 2021 Country Report documented human-rights abuses but did not specifically link them to opposition activists from the 1980s.
Alternative internal relocation was neither addressed convincingly by Oshodi nor shown to be futile.

c. Doctrinal Take-Away

The decision underscores that temporal remoteness and changed country conditions can be dispositive. Even credible historic torture, if unaccompanied by present-day individualized risk, fails the CAT test. Speculation or “word of mouth” about lingering warrants will not substitute for concrete evidence. The court effectively treats four decades as a break in the “clear probability” chain, unless recent corroboration links past events to current threats.

3. Potential Impact

Higher Burden for “Old Persecution” Applicants – Non-citizens relying on vintage incidents or warrants must produce fresh, verifiable evidence that the state remains hostile.
Emphasis on Corroboration – The judgment implicitly encourages IJs to insist on documentary or expert proof when arrest warrants or political animus are alleged.
Reasoned Consideration Standard Confirmed but Not Expanded – The court reiterates its minimalism, signalling that applicants should fully develop “highly relevant” facts while still before the IJ/BIA.
Practical Guidance for Practitioners – Counsel should obtain:
- Certified copies or official confirmation of outstanding warrants;
- Recent expert affidavits addressing current political dynamics;
- Evidence showing government incapacity or unwillingness to control rogue actors despite anti-torture laws.

Complex Concepts Simplified

CAT Deferral vs. Withholding – Both forms stop removal to a country where torture is probable. “Withholding” is barred if the applicant was convicted of certain serious crimes; “deferral” remains available but is easier for the government to later terminate.
“More Likely Than Not” Standard – Roughly a >50 % probability that torture will occur if removed. It is stricter than “credible fear” (asylum screenings) but lower than “clear, convincing, and unequivocal” standards used elsewhere.
Reasoned Consideration – A procedural requirement that the BIA demonstrate it actually thought about the case. It does not require discussion of every line of testimony, only the evidence that might change the outcome.
Substantial Evidence Review – The appellate court asks whether any reasonable fact-finder could have reached the agency’s conclusion, not whether the judges would have decided differently.
Changed Country Conditions – If the political landscape, laws, or leadership of a country have materially shifted, historic persecution may no longer predict future torture.

Conclusion

Oshodi does not radically rewrite CAT jurisprudence; rather, it sharpens an existing rule: past torture—even if severe—will not automatically warrant CAT protection when decades have passed, the political environment has transformed, and supporting evidence is speculative. The decision reinforces the low threshold for “reasoned consideration” and the high deference given to BIA fact-finding, particularly after Nasrallah and Ming Dai. Practically, it warns litigants that a case rooted in the distant past demands current, concrete corroboration tying yesterday’s persecution to today’s risk. The Eleventh Circuit’s analysis will likely guide future CAT claims involving ancient warrants, long-ago activism, or countries whose political landscapes have shifted over time.