Limiting BIA Factfinding on Government Acquiescence in CAT Claims

Introduction

Mirna Lisette Garay-Campos, a Salvadoran national, and her minor daughter sought asylum, withholding of removal, and Convention Against Torture (“CAT”) protection after fleeing violence and threats in El Salvador. The Board of Immigration Appeals (“Board”) and the Immigration Judge (“IJ”) denied relief on the ground that her proposed particular social group—“highly educated, house-owning, professional females”—was not cognizable, and they found no basis for CAT relief. On petition for review, the Fourth Circuit upheld the denial of asylum and withholding of removal but held that the Board erred as a matter of law by independently factfinding on government acquiescence for CAT claims. The court denied in part, granted in part, and remanded for further proceedings on CAT relief.

Summary of the Judgment

The Fourth Circuit issued a per curiam, unpublished opinion on April 18, 2025. It affirmed the Board’s conclusions that:

Garay-Campos’s proposed particular social group lacked the requisite social distinction, so she was ineligible for asylum under 8 U.S.C. § 1101(a)(42)(A) or withholding of removal under Yi Ni v. Holder, 613 F.3d 415 (4th Cir. 2010).
Her due-process challenge to the Board’s remand procedures failed because any alleged error did not prejudice the outcome.

However, the court granted the petition as to CAT relief, observing that the IJ had assumed—without deciding—that she could establish a likelihood of torture and governmental inability to protect, but the Board improperly conducted its own factfinding on government acquiescence in torture. Under the regulatory scheme, the Board must review IJ factual findings for clear error and is not authorized to make fresh factual determinations on appeal. Accordingly, the Fourth Circuit remanded her CAT claim for proper application of the clear-error standard.

Analysis

1. Precedents Cited

Velasquez v. Sessions, 866 F.3d 188 (4th Cir. 2017): Clarified the burden on asylum seekers to show persecution on account of a protected ground.
Yi Ni v. Holder, 613 F.3d 415 (4th Cir. 2010): Distinguished withholding of removal as requiring a “clear probability” standard, higher than asylum’s “well-founded fear.”
Y-Ni v. Holder: Defined standards for reviewing statutory findings on asylum and withholding.
Nolasco v. Garland, 7 F.4th 180 (4th Cir. 2021): Articulated the three-part test for a cognizable particular social group under In re M-E-V-G-, 26 I. & N. Dec. 227 (BIA 2014): immutable characteristic, particularity, social distinction.
Mulyani v. Holder, 771 F.3d 190 (4th Cir. 2014) and Suarez-Valenzuela v. Holder, 714 F.3d 241 (4th Cir. 2013): Defined government “acquiescence” under CAT: at least “willful blindness” by public officials.
8 C.F.R. § 1003.1(d)(3): Distinguishes the Board’s fact-review authority (clear error) from its prohibition on original factfinding.

2. Legal Reasoning

Asylum and Withholding of Removal: The panel applied de novo review to the legal question whether the proposed social group was cognizable. Citing Nolasco, it concluded that “highly educated, house-owning, professional females” lacked social distinction in El Salvador. Because she failed that threshold and could not show persecution on account of a protected ground, both asylum and withholding claims were foreclosed under Velasquez and Yi Ni.

Due Process Claim: Applying Santana v. Garland, 92 F.4th 491 (4th Cir. 2024), the court found no prejudice from any procedural defect in the Board’s remand order, since the ultimate denial of her social-group claim would have occurred regardless.

CAT Relief: The CAT requires showing it is “more likely than not” one will be tortured by or with the acquiescence of public officials, 8 C.F.R. § 1208.18(a)(1), (7). The IJ assumed these elements in her favor but denied relief because she found uncertainty in the chain of events. On appeal, the Board ignored the IJ’s assumptions and made its own factual finding that Garay-Campos failed to prove government acquiescence. The Fourth Circuit held this was legal error: under 8 C.F.R. § 1003.1(d)(3)(iv), the Board may not engage in de novo factfinding and must review the IJ’s factual conclusions for clear error. Thus, the CAT denial could not stand without remand.

3. Impact

Clarifies the strict separation of roles between IJs and the Board: the Board must defer to IJ fact findings on CAT elements unless those findings are clearly erroneous.
Strengthens the procedural rights of CAT applicants by ensuring that the Board cannot “re-weigh” evidence on appeal.
Provides future petitioners a basis to challenge Board decisions that stray into original factfinding, particularly on acquiescence issues.
Limits the Board’s power on collateral procedural grounds, reinforcing the mandatory remand where fact disputes exist.

Complex Concepts Simplified

Asylum vs. Withholding of Removal: Asylum requires a “well-founded fear” of persecution; withholding demands a “clear probability” of persecution.
Particular Social Group: A group of people sharing an immutable trait, defined with precision, and socially distinct in their home country.
CAT Protection: Protection against “torture,” encompassing severe physical or mental suffering, and requiring proof that public officials will knowingly allow it.
Government Acquiescence: Occurs when officials are aware of likely torture and “turn a blind eye,” breaching their duty to protect.
Clear Error Review: The Board must defer to fact findings by the IJ unless no reasonable adjudicator could agree with the IJ’s conclusion.

Conclusion

The Fourth Circuit’s decision in Mirna Garay-Campos v. Pamela Bondi establishes a critical procedural safeguard for CAT seekers by prohibiting the Board from making de novo factual determinations on government acquiescence. It reaffirms the separation of factfinding and appellate review, ensures adherence to the clear-error standard, and underscores the careful delineation between asylum, withholding, and CAT relief. Future petitioners and immigration judges will rely on this ruling to protect applicants’ rights and constrain the Board’s factfinding ambit.