Issue Exhaustion and CAT Deferral: Waiver for Not Challenging “Particularly Serious Crime” Findings Before the BIA; Generalized Country Conditions and Non-Acquiescing Governments Do Not Suffice

1. Introduction

In Emad Samir Rezk Ayad v. Todd W. Blanche (7th Cir. July 13, 2026) (nonprecedential), the Seventh Circuit reviewed a petition challenging a Board of Immigration Appeals (“Board” or “BIA”) decision affirming an Immigration Judge’s (“IJ”) denial of four forms of protection: (1) asylum, (2) withholding of removal under the Immigration and Nationality Act (“INA”), (3) withholding under the Convention Against Torture (“CAT”), and (4) deferral of removal under the CAT.

The petitioner, a Coptic Christian from Egypt, alleged past harm and feared future harm from Muslim Brotherhood-affiliated neighbors. After becoming a lawful permanent resident in the United States, he sustained serious Indiana convictions, including armed robbery and sexual battery, and DHS initiated removal proceedings.

The case presented two core issues on judicial review:

  1. Exhaustion/waiver: whether the petitioner preserved challenges to the IJ’s “particularly serious crime” determinations that barred asylum and withholding.
  2. CAT deferral merits: whether substantial evidence supported the denial of CAT deferral, including whether feared harm would occur with government acquiescence and whether the risk was sufficiently particularized.

2. Summary of the Opinion

The Seventh Circuit denied the petition for review.

  • Asylum/withholding (INA and CAT): The court held these claims were unexhausted because, before the BIA, Ayad did not meaningfully challenge the IJ’s conclusion that his convictions were “particularly serious crimes.” As a result, the court treated the claims as waived and did not reach the merits.
  • CAT deferral: Applying the substantial evidence standard, the court upheld the agency’s finding that Ayad failed to prove it was more likely than not he would be tortured in Egypt—especially because the harms were attributed to private actors, Egyptian police had taken reports and investigated, and the record did not compel a finding of official instigation, consent, or acquiescence. The court also relied on the principle that generalized country conditions do not establish that a particular petitioner is likely to be tortured.

3. Analysis

A. Precedents Cited

1) Scope of review when the BIA adopts and adds reasoning

The court reiterated the Seventh Circuit’s approach to reviewing layered agency decisions: when the Board adopts the IJ’s decision but adds reasoning, the court reviews both. This is drawn from Cui v. Garland and the quoted formulation in Cojocari v. Sessions, under which the court considers both the Board’s emphasized points and findings the Board “implicitly endorsed.”

2) Issue exhaustion and waiver in petitions for review

The court anchored its exhaustion holding in Munoz-Rivera v. Garland (exhaustion requires presenting arguments within the Board’s power to address, with enough specificity to put the Board on notice) and Kithongo v. Garland (failure to raise issues to the Board constitutes failure to exhaust and results in waiver).

Using these cases, the court treated Ayad’s failure to contest “particularly serious crime” findings to the BIA as a dispositive procedural defect. Importantly, the court did not frame this as a mere briefing technicality; it treated exhaustion as a gateway requirement for judicial review.

3) “Particularly serious crime” as a statutory bar (asylum/withholding)

Although the court did not reach the merits of whether Ayad’s offenses were “particularly serious,” it cited Lopez v. Lynch and Estrada-Martinez v. Lynch for the governing principle: convictions deemed “particularly serious crimes” render an individual ineligible for asylum and withholding (including CAT withholding). Those cases situate the “particularly serious crime” inquiry as a threshold statutory/regulatory bar.

4) CAT deferral: definition, burden, and the “more likely than not” standard

The court framed CAT protection through several decisions:

  • Rodriguez-Molinero v. Lynch (CAT forbids return where substantial grounds show danger of torture).
  • Menghistab v. Garland (deferral permits remaining upon showing a “substantial risk” of torture if removed).
  • Bernard v. Sessions (petitioner must prove it is more likely than not he would be tortured by the government or with its acquiescence; identifies relevant evaluation factors and reiterates the “highly deferential” substantial-evidence review).
  • Orellana- Arias v. Sessions (quoted in Bernard) on the agency’s obligation to address factors such as past torture, relocation, and country conditions.

5) Government acquiescence requirement for private-actor harm

The court relied heavily on Fiddler v. Bondi for the proposition that when feared harm is from private individuals, CAT relief requires that the violence occur with public-official acquiescence. It further used Cabrera-Ruiz v. Garland to articulate that a petitioner must show authorities would “turn a blind eye.”

6) Generalized violence/country conditions are insufficient without a particularized risk

The court tied its rejection of generalized reporting to an established line of cases: Bernard v. Sessions (generalized violence not enough; petitioner must show a substantial risk of being targeted specifically), Lopez v. Lynch (country materials about violence against certain groups do not show that the petitioner is more likely than not to face it), Lenjinac v. Holder (reports that torture occurs are insufficient without evidence the petitioner will be tortured), and Jan v. Holder (generalized articles and reports too vague to show the petitioner in particular would face torture).

7) Internal relocation as a factor undermining CAT likelihood

The court cited Ayala v. Garland to support the agency’s reliance on relocation: where assailants do not pursue a petitioner after moving, that can constitute substantial evidence that relocation can avoid danger.

B. Legal Reasoning

1) Exhaustion/waiver as a merits-avoiding rule

The court’s waiver holding turned on a straightforward comparison: the only issue Ayad briefed to the Board was whether the IJ erred in concluding torture was not more likely than not. He did not brief—at all—the IJ’s “particularly serious crime” rulings. Under Munoz-Rivera, exhaustion requires a specific argument with enough detail to notify the Board; under Kithongo, the consequence is waiver in the court of appeals.

Practically, the court treated the Board’s “not meaningfully challenged” determination as a procedural stopping point: once the issue is deemed unexhausted, the court will not examine whether the underlying convictions truly qualify as “particularly serious.”

2) CAT deferral: substantial evidence and the centrality of acquiescence

On CAT deferral, the court applied the deferential “substantial evidence” test (as emphasized in Bernard), reversing only if the record compels a contrary conclusion. The opinion highlights several evidentiary anchors supporting the agency’s denial:

  • Private actors and responsive police action: The harms were inflicted by neighbors (private actors), while police took reports, investigated, and attempted arrests. This supported the agency’s conclusion that Ayad did not prove official acquiescence.
  • Reconciliation practice not equated with acquiescence: Although community and a sheriff encouraged reconciliation after the 2012 assault, the court accepted the agency’s view that reconciliation attempts were common to avoid escalation and were not shown to be motivated by an improper desire to facilitate abuse or “turn a blind eye.”
  • Country evidence did not compel a particularized finding: The court treated reports of discrimination and violence against Christians as insufficient absent proof that Ayad himself was more likely than not to be tortured.
  • Relocation: Ayad lived in Cairo for two years after the arson without threats, and he did not challenge relocation findings on appeal. Those facts reinforced the agency’s likelihood analysis.

3) The opinion’s implicit evidentiary hierarchy

The court effectively privileged (a) concrete evidence of government response to the petitioner’s past incidents (police reports, investigations, arrests/incarceration of perpetrators) and (b) petitioner-specific facts (time without threats after moving) over (c) generalized materials about national conditions. That hierarchy aligns with the cited precedents requiring individualized likelihood and official involvement or acquiescence.

C. Impact

1) Litigation practice before the BIA: briefing discipline and “meaningful challenge”

The decision underscores a recurring Seventh Circuit message: a petitioner must brief each independent basis for denial to the Board or risk losing it on judicial review. Even where the IJ’s “particularly serious crime” ruling is outcome-determinative for asylum/withholding, failing to contest it to the BIA converts the case into a CAT-deferral-only petition (and even then only as to issues actually argued).

2) CAT deferral: showing “acquiescence” in the face of some state action

The opinion illustrates how difficult it can be to prove government acquiescence where the record contains evidence that police took reports, investigated, and attempted enforcement actions. For future CAT litigants, the case signals that they will need evidence connecting feared future torture to state complicity—beyond showing that the state’s protection is imperfect or that reconciliation is sometimes urged.

3) Country reports remain important—but are not self-executing

The opinion does not dismiss country reports as irrelevant; instead, it treats them as insufficient without a bridge to an individualized risk. Future claims will turn on connecting group-based risk to the petitioner through facts such as threats, pattern-of-pursuit, geographic reach, and inability to relocate, and on connecting anticipated harm to official action/inaction meeting the acquiescence threshold.

4) Nonprecedential but instructive

Although designated “NONPRECEDENTIAL DISPOSITION,” the order synthesizes established Seventh Circuit doctrine. It is best read as an application of existing rules—especially issue exhaustion and CAT standards—rather than a doctrinal innovation.

4. Complex Concepts Simplified

“Exhaustion” (issue exhaustion)
Before asking a federal court to review an immigration ruling, a noncitizen generally must first present the same argument to the BIA. If the argument was not fairly presented to the BIA, the court will treat it as unexhausted and usually will not consider it.
“Waiver” (in this posture)
Here, “waiver” means the court will not review an argument because it was not exhausted at the administrative level—i.e., it was not properly raised to the BIA.
“Particularly serious crime”
A legal label that, when applicable, bars asylum and withholding of removal (including CAT withholding). Even if someone fears harm, these forms of relief are unavailable if the bar applies.
CAT “withholding” vs. CAT “deferral”
Both are CAT-based protections, but deferral is typically available in narrower circumstances, including for some people barred from withholding. Deferral still requires proof that torture is more likely than not and that it would occur by or with the acquiescence of officials.
“Acquiescence”
For CAT purposes, if the feared torturer is a private actor, the applicant must show government officials would instigate, consent to, or effectively allow the torture (often described as “turning a blind eye”). Evidence that police investigate and try to stop the harm tends to cut against acquiescence.
“Substantial evidence” review
A very deferential standard on factual questions. The court does not decide what it would have found in the first instance; it asks whether the record compels a different result. If not, the agency’s decision stands.
“Generalized violence” vs. “particularized risk”
Country conditions may show that violence exists, even against a group. But CAT relief typically requires proof that this petitioner is more likely than not to be tortured—not merely that torture happens in the country.

5. Conclusion

Ayad v. Blanche reinforces two practical rules in Seventh Circuit immigration review: (1) failure to meaningfully challenge an IJ’s dispositive statutory-bar finding (here, “particularly serious crime”) before the BIA results in non-reviewability in the court of appeals; and (2) CAT deferral requires a particularized showing that torture is more likely than not and would occur by or with the acquiescence of officials, which is difficult to establish where the record shows government investigation and enforcement efforts and where the claim rests largely on generalized country conditions.