CAT “Specific Intent” and Speculation Limits: Harsh Salvadoran Prison Conditions and Prior Police Abuse Do Not Compel Deferral Absent Proof Conditions Are Designed to Torture

I. Introduction

Fuentes-Pineda v. Bondi (5th Cir. Mar. 24, 2026) addresses the evidentiary and doctrinal limits of protection under the Convention Against Torture (CAT) for a removed Salvadoran national with past gang affiliation and prior abuse by police. Jose Fuentes-Pineda—a former member of Barrio 18, tattooed with gang markings, and convicted of a gang-related homicide in El Salvador—petitioned for review after the Board of Immigration Appeals (BIA) denied him deferral of removal under CAT.

The Fifth Circuit (Judge Ho) denied panel rehearing, withdrew its prior January 14, 2026 opinion, and substituted a new one. The court’s key issues were:

  • Whether El Salvador’s harsh and life-threatening prison conditions—especially under the “state of exception”—are specifically intended by the government to inflict torture (as required by CAT’s implementing regulations).
  • Whether Fuentes-Pineda’s individualized circumstances (gang tattoos, history of police encounters, and two prior incidents of police torture) compel the conclusion that he is more likely than not to be tortured if returned.
  • Whether the petition remained justiciable after his removal (mootness and jurisdiction).

II. Summary of the Opinion

The court denied the petition for review. Applying highly deferential substantial-evidence review, it upheld the BIA/IJ findings that:

  • While Salvadoran prison conditions may be “dismal,” overcrowded, and dangerous, the record did not compel a finding that these conditions are specifically intended to inflict severe pain or suffering (torture).
  • Fuentes-Pineda’s prior torture by Salvadoran police was relevant but did not compel a finding of future torture, because the risk that the same officers would be involved again was deemed speculative, and he was not tortured during a prior 11-year incarceration.

The court also held the case was not moot despite Fuentes-Pineda’s removal, due to adverse “collateral legal consequences” (notably potential inadmissibility consequences).

III. Analysis

A. Precedents Cited (and How They Shaped the Holding)

1. Standards of review and the “compels” rule

  • Gjetani v. Barr, 968 F.3d 393 (5th Cir. 2020): Used for the rule that when the BIA adopts the IJ’s opinion, the court reviews the IJ decision as well.
  • Morales v. Garland, 27 F.4th 370 (5th Cir. 2022): Reinforced the split between de novo review of legal questions and substantial-evidence review of factual findings.
  • Nasrallah v. Barr, 590 U.S. 573 (2020): Anchored the court’s insistence that review of factual challenges to CAT orders is “highly deferential,” which materially raises the bar for petitioners on appeal.
  • Munoz-Granados v. Barr, 958 F.3d 402 (5th Cir. 2020) and Zhang v. Gonzales, 432 F.3d 339 (5th Cir. 2005): Supplied the “evidence compels” formulation—reversal is permitted only when the record would force any reasonable factfinder to find CAT eligibility.
  • Hernandez v. Garland, 52 F.4th 757 (9th Cir. 2022): Quoted to emphasize that “torture” is a higher harm threshold than “persecution,” supporting a narrow reading of what qualifies.

2. The CAT definition: “specific intent” and state action

  • Aviles-Tavera v. Garland, 22 F.4th 478 (5th Cir. 2022): Cited for the requirement of “sufficient state action” (torture by, at the instigation of, or with consent/acquiescence of officials).
  • Morales-Morales v. Barr, 933 F.3d 456 (5th Cir. 2019): Quoted for the regulatory definition of torture and its “intentionally inflicted” requirement.
  • Sevoian v. Ashcroft, 290 F.3d 166 (3rd Cir. 2002): Used to underscore that even “cruel and inhuman” official conduct may fall short of CAT torture absent the required intent.

3. Prison-conditions CAT claims: the controlling administrative framework

  • Matter of J-E-, 23 I. & N. Dec. 291 (BIA 2002) (en banc): The opinion’s central prison-conditions authority. The Fifth Circuit treated Matter of J-E- as setting the governing lens: harsh, deplorable detention conditions do not constitute CAT torture unless they are specifically intended to cause severe pain or suffering; “isolated acts” are insufficient.
  • Matter of A-A-R-, 29 I. & N. Dec. 38 (BIA 2025): Functioned as a contemporary bridge between J-E- and current El Salvador evidence. The court used Matter of A-A-R- to normalize the idea that officials’ public messaging about harsh treatment can reflect political judgment or deterrence without proving a torture-specific design, and to elevate State Department reports as “highly probative.”

4. Evaluating country-condition evidence (NGO reports vs. State Department reports)

  • Gibson v. Collier, 920 F.3d 212 (5th Cir. 2019) and M.A. v. INS, 899 F.2d 304 (4th Cir. 1990) (en banc): Supported the court’s skepticism toward advocacy-organization reports as potentially reflecting “one side” and having “agendas,” which influenced the weight assigned to an Amnesty International report based on 83 interviews.
  • Kazlauskas v. INS, 46 F.3d 902 (9th Cir. 1995): Cited to bolster the proposition that State Department reports are among “the best” resources on country conditions.

5. Judicial notice and remand futility

  • Dobrota v. INS, 195 F.3d 970 (7th Cir. 1999) and Shehu v. Gonzales, 443 F.3d 435 (5th Cir. 2006): Invoked to justify taking judicial notice of a new State Department report when it reflects a crucial change in conditions and makes remand futile.
  • Maniar v. Garland, 998 F.3d 235 (5th Cir. 2021): Cited for the Fifth Circuit’s “remand futility” exception in immigration cases.

6. Speculation limits on individualized future-risk findings

  • Gonzales-Veliz v. Barr, 938 F.3d 219 (5th Cir. 2019): Used to reject conjectural causal chains; speculation cannot compel reversal of the IJ’s factfinding.

7. Mootness/jurisdiction after removal

  • Mendoza-Flores v. Rosen, 983 F.3d 845 (5th Cir. 2020): Supported continuing jurisdiction based on “collateral legal consequences” after removal.
  • Arulnanthy v. Garland, 17 F.4th 586 (5th Cir. 2021): Reinforced jurisdiction despite removal and framed the justiciability analysis.

B. Legal Reasoning

1. The court treated “specific intent” as the decisive fault line

The opinion’s core move is to separate (i) proof that prison conditions are harsh, dangerous, and even foreseeably deadly from (ii) proof that the government maintains those conditions for the purpose of inflicting severe pain or suffering. By reaffirming Matter of J-E- and citing Matter of A-A-R-, the court effectively holds that a record dominated by overcrowding, inadequate food, underreported deaths, and generalized brutality still does not compel CAT relief unless it demonstrates the government’s torture-specific design.

2. “More likely than not” was applied both to harm and to intent

The IJ accepted that detention upon return was likely under El Salvador’s “state of exception,” and that conditions could be “poor and life-threatening.” But the court affirmed the finding that the evidence did not cross the “clear probability” threshold (i.e., “more likely than not”) that the government intends torture through those conditions. Even deaths in custody were treated as ambiguous—potentially attributable to neglect, overcrowding, or other causes rather than an intentional torture program.

3. Individualized risk: past torture mattered, but did not compel a forward-looking conclusion

Fuentes-Pineda’s two past instances of police torture established prior severe mistreatment by state agents, but the IJ—and thus the Fifth Circuit—treated future recurrence as unproven because:

  • It was “too speculative” that the same officers would be involved in future detention.
  • He was not tortured during a prior 11-year prison term.
  • Other police mistreatment he experienced did not rise to the legal definition of torture.

The court additionally reasoned that the “state of exception” could cut against individualized torture risk: broad detention authority might reduce incentives to inflict pain to obtain confessions.

4. Evidence-weighting: State Department reporting was elevated; NGO reporting was discounted

The court relied heavily on State Department country reporting (including judicial notice of the 2024 report) and treated it as “highly probative.” Conversely, it approved the IJ’s discounting of the Amnesty International report as limited in sample size and potentially agenda-driven, citing Gibson v. Collier and M.A. v. INS. That approach signals that, in this circuit, petitioners should expect heightened scrutiny of NGO reports unless supported by broader, corroborated, and methodologically persuasive evidence.

C. Impact

  • Higher practical burden for El Salvador CAT prison-conditions claims in the Fifth Circuit: The decision reinforces that showing horrific conditions and likely detention is insufficient without compelling evidence that the government maintains those conditions to torture—not merely despite them.
  • Stronger deference to IJ/BIA factfinding on intent: By repeatedly invoking “speculation” and the “compels” standard, the opinion underscores that close cases will almost always be resolved in favor of the agency on appeal.
  • Evidence strategy consequences: The opinion encourages litigants to anchor country-conditions proof in State Department reporting (or equivalently broad, cross-validated sources) and to be prepared to defend NGO reports’ methodology, representativeness, and neutrality.
  • Political rhetoric is not enough: Even inflammatory official statements or social-media “advertising” of harsh conditions were treated as consistent with deterrence, moral condemnation, or politics rather than proof of a torture program.
  • Individualized CAT claims require more than gang affiliation + detention likelihood: The court signaled alignment with Matter of A-A-R- in rejecting a categorical inference that most (or all) detained current/former gang members will face torture as legally defined.

IV. Complex Concepts Simplified

  • CAT “deferral of removal”: A limited form of protection that prevents removal to a country where the person is more likely than not to be tortured; it is narrower and more revocable than asylum.
  • “More likely than not” / “clear probability”: The applicant must show a greater-than-50% likelihood of torture upon return.
  • “Torture” (for CAT): Not any serious mistreatment; it requires “severe pain or suffering” that is intentionally inflicted for purposes like coercion, punishment, or intimidation, and involves government participation or acquiescence.
  • “Specific intent”: It is not enough that officials know harm will occur (or are negligent or reckless). The harm must be inflicted on purpose as torture.
  • Substantial-evidence review: The appellate court does not decide the facts anew; it asks only whether a reasonable factfinder could reach the agency’s conclusion. Reversal requires evidence so strong it compels the opposite result.
  • Judicial notice (of country reports): An appellate court can consider certain official documents (like updated State Department reports) without sending the case back, especially where remand would be futile.

V. Conclusion

Fuentes-Pineda v. Bondi solidifies a Fifth Circuit template for CAT claims premised on El Salvador’s prison system under the “state of exception”: harsh, overcrowded, and even deadly conditions—together with prior abuse by police—do not compel CAT deferral unless the record also compels a finding of governmental specific intent to torture and a non-speculative, individualized likelihood of future torture. The opinion also underscores the decisive role of deference on appeal and the court’s preference for State Department reporting when assessing country conditions.