CAT Relief in the Fifth Circuit: “Acquiescence” Is Not Required When Torture Is Inflicted Under Color of Law

I. Introduction

Vasquez-Barrera v. Blanche (5th Cir. June 10, 2026) concerns a bisexual Salvadoran man, Jose Obed Vasquez-Barrera (“Vasquez”), who sought asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”). Vasquez alleged repeated brutalization and extortion by a Salvadoran police officer—often accompanied by other uniformed officers—combined with homophobic abuse and threats of death. He also had a Salvadoran conviction for “Terrorist Organizations to the detriment of the Salvadoran State.”

The key issues before the Fifth Circuit were:

  • Whether the serious nonpolitical crime bar foreclosed asylum and withholding of removal based on Vasquez’s conviction and limited corroboration.
  • Whether the BIA applied the correct legal standard to Vasquez’s request for CAT deferral, particularly on the “government acquiescence” element.
  • Whether the IJ violated due process through refusal to certify a proposed expert and alleged bias.

The court denied the petition as to asylum/withholding and due process, but granted it in part and remanded because the BIA used an incorrect legal standard when it treated “state-wide condonation” (or turning a blind eye) as dispositive even though the alleged torturer was himself a public official allegedly acting under color of law.

II. Summary of the Opinion

  • Asylum & Withholding: Affirmed denial. The record (as presented) did not compel reversal of the BIA’s finding that Vasquez was barred by the serious nonpolitical crime bar, given his conviction and failure to provide reasonably obtainable corroboration (e.g., the remainder of the conviction packet/investigative report).
  • CAT: Vacated and remanded. The BIA erred by requiring Vasquez to show the Salvadoran government “as a whole” would condone or “turn a blind eye” to torture. Under Fifth Circuit law, if torture is inflicted by a public official acting in an official capacity (under color of law), the applicant need not separately prove “acquiescence.” The BIA also provided an inadequately reasoned treatment of corroborative affidavits relevant to past harm.
  • Due Process: No violation. The refusal to certify Dr. Wiltberger as an expert was not an abuse of discretion; alleged IJ hostility did not rise to “extrajudicial bias” that makes fair judgment impossible.

III. Analysis

A. Precedents Cited

1. Jurisdiction, mootness, and scope of review

  • Aguilar-Quintanilla v. McHenry, 126 F.4th 1065 (5th Cir. 2025): The court relied on this case to confirm that removal does not moot a petition for review, including where CAT protection could support facilitated return. It also supplied the standard that the Fifth Circuit reviews the BIA decision and the IJ decision only “to the extent that it influenced the BIA.”
  • Gonzalez v. Thaler, 565 U.S. 134 (2012): Cited for the principle that courts must consider jurisdictional issues sua sponte.
  • Singh v. Sessions, 880 F.3d 220 (5th Cir. 2018): Reinforced the approach to reviewing the BIA and IJ decisions in tandem.
  • Orellana-Monson v. Holder, 685 F.3d 511 (5th Cir. 2012): Provided the substantial-evidence framework: factual findings stand unless the evidence compels a contrary result.

2. Asylum/withholding framework and the serious nonpolitical crime bar

  • Efe v. Ashcroft, 293 F.3d 899 (5th Cir. 2002): Served as the doctrinal anchor for (i) asylum elements, (ii) the serious nonpolitical crime bar’s operation, and (iii) CAT’s separate analysis (no protected-ground requirement, but a higher “torture” threshold than “persecution”).
  • Zamora-Morel v. INS, 905 F.2d 833 (5th Cir. 1990): Via Efe, supported treating whether an applicant committed a serious nonpolitical crime as a factual finding reviewed for substantial evidence.
  • Matter of E-A-, 26 I&N Dec. 1 (BIA 2012): Discussed and distinguished. The panel noted Vasquez’s reliance was misplaced because that decision involved conduct not charged/convicted, whereas Vasquez had an actual conviction.

3. Corroboration doctrine and evidentiary expectations

  • Avelar-Oliva v. Barr, 954 F.3d 757 (5th Cir. 2020): The court used this to validate the IJ/BIA’s corroboration approach: an applicant may be required to provide corroboration, must get an opportunity to explain absence, and need not be given advance notice of each specific document.
  • Rui Yang v. Holder, 664 F.3d 580 (5th Cir. 2011): Supported deference to agency findings about the reasonable availability of corroborative evidence.
  • Gidey v. Garland, No. 21-60182, 2023 WL 4174063 (5th Cir. June 26, 2023): Cited as an example of expecting applicants to seek reasonably obtainable family documentation.

4. CAT proof, “generalized conditions,” and the individualized likelihood requirement

  • Qorane v. Barr, 919 F.3d 904 (5th Cir. 2019): General country evidence does not necessarily establish that a particular applicant will likely face state-sanctioned torture.
  • Aviles-Tavera v. Garland, 22 F.4th 478 (5th Cir. 2022): General poor conditions are insufficient without individualized proof.
  • Morales v. Sessions, 860 F.3d 812 (5th Cir. 2017): Unsafe conditions documented in news articles may still fail to show the individualized likelihood required.
  • Chen v. Gonzales, 470 F.3d 1131 (5th Cir. 2006): Invoked for deference where the record does not compel acceptance of claimed past events relevant to torture.

5. The central CAT “color of law” doctrine

  • Hammerschmidt v. Garland, 54 F.4th 282 (5th Cir. 2022): Confirmed that even if barred from asylum/withholding by serious nonpolitical crime, an applicant may still seek CAT deferral.
  • Garcia v. Holder, 756 F.3d 885 (5th Cir. 2014): The decisive precedent. The panel relied on Garcia to hold that when torture is inflicted by a public official acting “under color of law,” the applicant need not additionally prove the state “acquiesced” in the sense of official sanction or a “turn a blind eye” showing. Garcia also rejects labeling such conduct “rogue” as a way to defeat CAT where the official uses authority to further personal objectives.
  • Marmorato v. Holder, 376 F. App’x 380 (5th Cir. 2010) (per curiam): Supported the “official capacity”/“under color of law” framing.
  • Iruegas-Valdez v. Yates, 846 F.3d 806 (5th Cir. 2017): Reinforced that actions of low-level officials, including police, may satisfy CAT’s state-action component.

6. The agency’s obligation to address key evidence

  • Cabrera v. Sessions, 890 F.3d 153 (5th Cir. 2018): The court used this to fault the BIA for failing to address key evidence (here, corroborative affidavits) with adequate reasoning.
  • Abdel-Masieh v. INS, 73 F.3d 579 (5th Cir. 1996): Via Cabrera, supported the proposition that the BIA need not discuss every item, but cannot ignore “key evidence.”
  • Mohndamenang v. Garland, 59 F.4th 211 (5th Cir. 2023): Used to acknowledge limits of affidavits where declarants lack firsthand observation, but distinguished because multiple affidavits here corroborated multiple beatings/extortion episodes even if not every detail.

7. Due process: expert qualification and adjudicator bias

  • Bouchikhi v. Holder, 676 F.3d 173 (5th Cir. 2012) (per curiam): Controlled the “expert certification” issue; no abuse of discretion where credentials/publications did not match claimed expertise.
  • Wang v. Holder, 569 F.3d 531 (5th Cir. 2009): Provided the standard for due process based on a neutral arbiter and the boundary between hostility and disqualifying bias.
  • Liteky v. United States, 510 U.S. 540 (1994): Quoted for the rule that in-trial critical or hostile remarks rarely show bias absent extrajudicial source or extreme antagonism.

B. Legal Reasoning

1. Asylum and withholding: conviction + missing corroboration sustained the serious nonpolitical crime bar

The court treated the “serious nonpolitical crime” determination as a factual finding reviewed for substantial evidence, emphasizing the constraint that the BIA and the Fifth Circuit are bound to the administrative record. With only a one-page judgment of conviction submitted—despite an indication the certified packet contained an additional “twenty-five useful pages” (including an investigative report)—the BIA concluded it had “serious reasons” to believe Vasquez committed the offense and that Vasquez failed to rebut the bar by a preponderance of the evidence.

Two elements of the court’s reasoning are practically important:

  • Record-bound review: Because the record lacked underlying conviction materials, the court would not second-guess the agency’s reading of the conviction’s seriousness. The opinion repeatedly returns to the statutory limitation that the Board (and reviewing court) cannot rely on facts outside the record.
  • Corroboration as a decisive lever: Even where an applicant testifies that a guilty plea was coerced or that he is innocent, the agency may require corroboration when it is reasonably obtainable (and the applicant’s explanations do not compel a contrary conclusion). The missing investigative report and attorney letter became pivotal.

2. CAT: the Fifth Circuit corrected the BIA’s “acquiescence” framing where the alleged torturer is a state official acting under color of law

The panel’s most consequential holding is its rejection of the BIA’s premise that Vasquez had to show “the Salvadoran government, as a whole,” would condone or “turn a blind eye” to torture in order to satisfy CAT’s state-action element. Under 8 C.F.R. § 1208.18(a)(1), torture qualifies if inflicted “by, or at the instigation of, or with the consent or acquiescence of, a public official acting in an official capacity or other person acting in an official capacity.”

Applying Garcia v. Holder, the court explained:

  • If the feared harm is inflicted by a public official acting in an official capacity (under color of law), the applicant does not need a separate showing that the broader government “acquiesced” in the sense of official sanction.
  • Labeling an officer “rogue” does not defeat CAT where the officer uses official power (uniform, weapons, authority, collaboration with other officers) to commit extortion or beatings. Personal motives can still be “under color of law.”

This matters in Vasquez’s factual posture: he alleged repeated beatings and extortion by an identified police officer, sometimes with multiple uniformed officers and even military members. The BIA’s focus on whether El Salvador was “combating corruption” did not resolve the core question—whether the feared torturer is a public official likely to act under color of law again.

3. CAT remand also rested on inadequate engagement with key affidavits

The court separately faulted the BIA’s “conclusory” treatment of corroborative affidavits from Vasquez’s mother, romantic partner, and business partner. Even if not every declarant witnessed every event, the affidavits potentially corroborated multiple episodes (including beatings and extortion) relevant to the “past torture” factor under 8 C.F.R. § 1208.16(c)(3). Under Cabrera v. Sessions, the BIA’s failure to meaningfully address key corroboration warranted remand.

4. Due process: expert and bias claims rejected

Using Bouchikhi v. Holder, the panel upheld the IJ’s refusal to certify Dr. Wiltberger as an expert on LGBTQI+ issues in El Salvador, emphasizing the absence of publications/credentials specific to that topic and deferring to the IJ’s assessment as within discretion. On bias, the panel applied Wang v. Holder and Liteky v. United States: judicial impatience or hostile tone generally does not equal unconstitutional bias without an extrajudicial source or extreme antagonism making fair judgment impossible.

C. Impact

1. A clarifying CAT rule with practical bite: “under color of law” can replace the need to prove broader governmental acquiescence

Although unpublished, the decision reinforces (and operationalizes) a Fifth Circuit doctrine that is often outcome-determinative in police-abuse CAT claims: where the feared torturer is a public official acting under color of law, the BIA may not demand proof that the “government as a whole” condones the torture. This narrows a common agency move—characterizing abuse as “rogue” misconduct and then denying CAT for lack of state acquiescence.

2. Increased pressure on the BIA to conduct evidence-sensitive CAT analysis

The remand signals that the BIA must do more than recite that affidavits “omit details” or were obtained “after” prior decisions. Where affidavits corroborate substantial portions of alleged abuse, the agency must explain why that corroboration is insufficient for CAT’s “past torture” and “likelihood” analysis.

3. Continued rigor on corroboration in the serious-crime context

The asylum/withholding portion underscores that when a conviction exists and the applicant claims coercion or innocence, the agency may require underlying records (where reasonably obtainable). This incentivizes complete foreign conviction packets and attorney attestations where feasible—especially because appellate review is tightly record-bound.

IV. Complex Concepts Simplified

  • Serious nonpolitical crime bar: Even if someone otherwise qualifies for asylum/withholding, the law blocks relief if there are “serious reasons” to believe the person committed a serious nonpolitical crime before entering the U.S.
  • CAT deferral vs. asylum/withholding: CAT does not require persecution on account of a protected ground, but it requires a higher showing—more likely than not future torture. Even people barred from asylum/withholding can still seek CAT deferral.
  • “Acquiescence” vs. “under color of law”: CAT covers torture by officials or with official consent/acquiescence. In the Fifth Circuit, if the torturer is a public official acting in an official capacity (under color of law), you do not separately have to prove the whole government approved or “turned a blind eye.”
  • Substantial evidence review: The court does not decide the facts from scratch; it upholds the agency unless the record compels the opposite result.
  • Corroboration: Testimony can be enough, but if the IJ reasonably expects corroboration and the applicant can reasonably obtain it, failure to provide it can defeat the claim.
  • Administrative record limitation: The court cannot consider new facts outside the record (e.g., post-removal imprisonment allegations not in the record).
  • State of exception (country conditions): The opinion describes El Salvador’s emergency regime expanding arrest power and reducing procedural safeguards; this is relevant to risk assessment but still must be tied to the applicant’s individualized likelihood of torture.

V. Conclusion

Vasquez-Barrera v. Blanche leaves intact a strict, record-driven application of the serious nonpolitical crime bar to asylum and withholding where corroboration is missing. But it meaningfully strengthens CAT adjudication in one recurring scenario: alleged torture by police. The Fifth Circuit held the BIA applied the wrong legal yardstick by treating “government-wide condonation” as dispositive despite evidence that a police officer may have acted under color of law. On remand, the BIA must apply the correct standard and conduct a more reasoned evaluation of corroborative affidavits and the severity of the harm.