Jurisdiction to Review IJ Late-Evidence/Continuance Rulings in CAT Cases Absent Statutory Discretion

Introduction

In Lopez-Barrera v. Blanche (5th Cir. Aug. 14, 2026), Jose Mauricio Lopez-Barrera, a citizen of El Salvador found removable, petitioned for review after the Board of Immigration Appeals (“BIA”) denied his request for deferral of removal under the regulations implementing the Convention Against Torture (“CAT”). The case unfolded through multiple remands between the BIA and Immigration Judges (“IJs”), driven primarily by credibility concerns and disputes over Lopez-Barrera’s efforts to amend applications and submit evidence late.

The Fifth Circuit addressed two clusters of issues: (1) procedural challenges to the BIA/IJ’s management of the case (motions to remand, to amend, and to submit late-filed evidence), and (2) a substantive challenge to the denial of CAT deferral. A notable feature of the opinion is its careful explanation of why the court retained jurisdiction to review the IJ’s late-evidence/continuance-type ruling despite jurisdiction-stripping provisions in 8 U.S.C. § 1252(a)(2).

Summary of the Opinion

The Fifth Circuit denied the petition for review. It held that the BIA and IJ did not abuse their discretion in: (i) denying a motion to remand based on allegedly “new” country evidence, (ii) denying a second attempt to amend the asylum application, and (iii) refusing to accept late-filed evidence for lack of good cause. On the merits of CAT, the court held that substantial evidence supported (a) an adverse credibility determination and (b) the conclusion that Lopez-Barrera failed to provide particularized evidence showing he was more likely than not to be tortured with the consent or acquiescence of Salvadoran officials.

Analysis

Precedents Cited

  • Milat v. Holder, 755 F.3d 354 (5th Cir. 2014)
    The court used Milat to anchor the abuse-of-discretion standard for BIA denials of remand and similar procedural rulings, quoting its formulation that reversal is warranted only when the decision is “capricious, racially invidious, utterly without foundation in the evidence, or otherwise so irrational that it is arbitrary rather than the result of any perceptible rational approach.” This provided the lens through which the court upheld the BIA’s refusal to remand based on “new” evidence about a government crackdown on gangs.
  • Cuenca-Arroyo v. Garland, 123 F.4th 781 (5th Cir. 2024) (Elrod, C.J., concurring)
    The opinion relied on the concurrence’s survey of Fifth Circuit cases that had “assumed jurisdiction” over continuance-type decisions without analysis. The court used that observation as a springboard to supply a jurisdictional explanation rather than to create a new jurisdictional bar.
  • Ikome v. Bondi, 128 F.4th 684 (5th Cir. 2025)
    Ikome illustrated when § 1252(a)(2)(B)(i) eliminates jurisdiction—there, because the claim arose under 8 U.S.C. § 1229b, which is enumerated in § 1252(a)(2)(B)(i). By contrasting Ikome, the court emphasized that Lopez-Barrera’s case did not involve relief under the enumerated provisions, so § 1252(a)(2)(B)(i) did not apply.
  • Kucana v. Holder, 558 U.S. 233 (2010)
    Kucana supplied the key interpretive rule for § 1252(a)(2)(B)(ii): the phrase “specified under this subchapter” refers to statutory grants of discretion, not discretion created solely by regulation. Applying Kucana, the Fifth Circuit reasoned that because the CAT statute did not “specify” discretionary authority over continuances/late evidence, § 1252(a)(2)(B)(ii) did not strip jurisdiction.
  • Bouarfa v. Mayorkas, 604 U.S. 6 (2024)
    The court cited Bouarfa as an example of immigration determinations Congress has committed to the Executive as a “quintessential grant of discretion” (there, under § 1155). The citation served a cautionary function: jurisdictional limits exist beyond § 1252(a)(2), but the specific limits discussed did not foreclose review in this CAT/asylum context.
  • Patel v. Garland, 596 U.S. 328 (2022)
    Patel was invoked to show how broadly Congress can preclude judicial review in discretionary-relief contexts (there, factfinding in § 1255 proceedings). The Fifth Circuit used it to frame—but not extend—jurisdictional limits, distinguishing Lopez-Barrera’s claims from the kind of discretionary-relief factfinding insulated in Patel.
  • Efe v. Ashcroft, 293 F.3d 899 (5th Cir. 2002)
    Efe supported the proposition that an adverse credibility finding “counsels against relief under the CAT.” The court relied on this linkage to uphold denial of CAT deferral where the applicant’s narrative of risk-driving events was found not credible.
  • Morales v. Sessions, 860 F.3d 812 (5th Cir. 2017)
    The court used Morales for two related points: (i) the agency is not required to accept an applicant’s explanations for “plain inconsistencies,” and (ii) the case was not about trivial memory lapses; inconsistencies went to the core incidents underpinning the claimed torture risk.
  • Arulnanthy v. Garland, 17 F.4th 586 (5th Cir. 2021)
    Arulnanthy was cited for the requirement of “particularized evidence” to establish that the applicant is more likely than not to be tortured with official consent or acquiescence. The court applied this to reject reliance on generalized conditions and to uphold the finding that Lopez-Barrera’s evidence did not show a sufficiently individualized risk.
  • Qorane v. Barr, 919 F.3d 904 (5th Cir. 2019)
    The court relied on Qorane for the principle that “[g]eneralized country evidence” often “tells us little” about whether state actors will torture this petitioner. This reinforced the individualized-risk requirement under CAT.

Legal Reasoning

1) Procedural rulings: abuse-of-discretion review

The court treated the principal procedural disputes—motions to remand, to amend, and to submit evidence late—as discretionary case-management determinations reviewed for abuse of discretion.

  • Motion to remand: The BIA reasonably concluded that the “new” evidence about the Salvadoran government’s crackdown on gangs likely would not change the outcome because the agency had already addressed that topic and the proffered materials did not overcome the applicant-specific deficiencies.
  • Second amended application: The IJ emphasized that Lopez-Barrera had sworn to the contents of his application(s), and that the “second amended” version was only slightly different—supporting the BIA’s conclusion that barring another amendment was within discretion.
  • Late-filed evidence: Invoking the IJ’s “broad discretion” to admit evidence, the court upheld the denial where the IJ documented Lopez-Barrera’s “ample opportunity” to submit documents earlier and found no “good cause” for lateness.

2) Jurisdiction to review late-evidence/continuance-type decisions in this posture

A central doctrinal contribution of the opinion is its structured explanation of why § 1252(a)(2) did not strip jurisdiction to review the IJ’s refusal to accept late-filed evidence (a determination functionally akin to a continuance/case-scheduling ruling).

  • § 1252(a)(2)(B)(i): Inapplicable because the case did not involve judgments granting relief under the enumerated provisions (unlike Ikome v. Bondi and § 1229b).
  • § 1252(a)(2)(B)(ii): Inapplicable under Kucana v. Holder because the relevant discretion was not “specified under this subchapter” by statute; the CAT statute did not specify that continuances/late evidence rulings are committed to the Attorney General’s discretion.
  • § 1252(a)(2)(C): Inapplicable because the case did not turn on covered criminal offenses.

The court expressly limited its discussion, acknowledging other jurisdiction-limiting doctrines (citing Bouarfa and Patel) while clarifying that, on these facts and claims (including CAT-related regulations), the court could reach the merits of the evidentiary-timeliness ruling.

3) Substantive CAT denial: credibility and individualized risk

The Fifth Circuit upheld denial of CAT deferral on two independent, substantial-evidence grounds:

  1. Adverse credibility: The court approved the BIA’s reliance on multiple inconsistencies across the border interview, credible fear interview, asylum application, and testimony—covering key facts such as the number of gang members involved, omission of claimed persecution incidents, and conflicting accounts of imprisonment. Under Morales v. Sessions, the agency was not required to accept explanations like language barriers or drafting by others, especially when inconsistencies went to the core of the claim.
  2. Failure to provide particularized evidence of likely torture with official consent or acquiescence: Even assuming Lopez-Barrera’s asserted MS-13 affiliation raised concern, the IJ and BIA could conclude—consistent with Arulnanthy v. Garland and Qorane v. Barr—that generalized country conditions and broad assertions about anti-gang policies did not establish that this petitioner specifically was more likely than not to be tortured with official involvement or acquiescence.

Impact

The opinion’s most practically significant contribution is its jurisdictional clarification: in CAT/asylum-related removal proceedings, routine IJ case-management rulings on accepting late-filed evidence (and similar continuance/scheduling determinations) are not categorically insulated from judicial review by § 1252(a)(2) unless a statutory jurisdictional bar actually fits—particularly where the relevant discretion derives from regulations rather than a statute specifying discretion. This reduces uncertainty suggested by unpublished decisions and by prior “assumed jurisdiction” practice noted in Cuenca-Arroyo v. Garland.

Substantively, the decision reinforces two steady Fifth Circuit themes in CAT litigation: (1) adverse credibility often defeats CAT claims when inconsistencies concern the risk-generating events, and (2) country conditions evidence must be tethered to an individualized showing that the applicant personally faces a more-likely-than-not probability of torture with official consent or acquiescence.

Complex Concepts Simplified

  • CAT deferral of removal: A form of protection that prevents removal to a specific country if the person proves it is more likely than not they would be tortured there, and that torture would occur with the consent or acquiescence of a public official. “Deferral” is generally more limited and easier for the government to revisit than “withholding.”
  • Adverse credibility: A finding that the applicant’s testimony is not believable. In practice, it undermines factual assertions about past harm and future risk. Agencies may base this on inconsistencies across interviews, applications, and testimony.
  • Substantial evidence: A deferential standard of review. The court asks whether the record contains enough evidence that a reasonable adjudicator could agree with the agency—not whether the court would decide the facts differently.
  • “Particularized evidence”: Proof tied to the applicant personally (identity, history, profile, prior interactions with state actors, individualized threats), not merely evidence that the country is dangerous in general.
  • Jurisdiction-stripping under 8 U.S.C. § 1252(a)(2): Statutory limits on what immigration-related decisions federal courts can review. Under Kucana v. Holder, § 1252(a)(2)(B)(ii) focuses on discretion specified by statute, not by regulation.
  • “Good cause” for late evidence: A showing of a valid, persuasive reason for missing deadlines (e.g., diligence plus unavoidable delay). Without good cause, IJs may exclude late submissions under their case-management authority.

Conclusion

Lopez-Barrera v. Blanche denies CAT deferral on familiar grounds—adverse credibility and lack of individualized proof—but it is especially notable for clarifying jurisdiction. The Fifth Circuit explains that § 1252(a)(2) does not automatically bar review of IJ rulings refusing late-filed evidence (or comparable continuance-type decisions) in CAT/asylum-related proceedings where no statute “specifies” that such authority is discretionary within the meaning of § 1252(a)(2)(B)(ii). The decision thus both tightens procedural doctrine around reviewability and reiterates that CAT relief demands credible, consistent testimony supported by petitioner-specific evidence of likely, officially connected torture.