Montiel Rubio v. Bondi: The Fifth Circuit Fortifies the “Voluntary-Return” Rule in Asylum, Withholding, and CAT Proceedings

Introduction

In Montiel Rubio v. Bondi, decided 13 August 2025, the United States Court of Appeals for the Fifth Circuit denied a Venezuelan activist’s petition for review after the Board of Immigration Appeals (“BIA”) upheld an Immigration Judge’s denial of asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”).

Although the court’s reasoning traverses familiar asylum terrain—past persecution, well-founded fear, and CAT standards—the panel articulates, with unusual clarity and emphasis, a reinforced doctrinal point: an alien’s repeated voluntary departures from and returns to the country of alleged persecution, coupled with multi-year periods of unharmed residence, may be dispositive evidence against both past persecution and an objectively reasonable fear of future harm. The court expressly states that it “gives this proposition a boost of force,” signalling a tighter approach within the Fifth Circuit.

Below is a structured commentary unpacking the decision, its authorities, and its future ripple effects.

Summary of the Judgment

• Past persecution: The panel held that Rubio’s gun-shot wound (2015), tear-gassing during protests, and sporadic threats by colectivos over nine years did not amount to “extreme,” systematic persecution.
• Well-founded fear: Rubio’s ability to enter and leave Venezuela multiple times, to reside there unharmed for years, and to retain an intact home undercut both subjective and objective components of fear.
• Withholding of removal: Because Rubio failed the lower asylum burden, he necessarily failed the higher withholding standard.
• CAT protection: Rubio did not show that torture was “more likely than not” with government acquiescence. General country conditions and past isolated harm were insufficient.
• Petition result: Denied. The removal order stands.

Detailed Analysis

1. Precedents Cited and Their Influence

The court leans heavily on Fifth Circuit precedent and sprinkles in persuasive authority from sister circuits:

• Gjetani v. Barr, 968 F.3d 393 (5th Cir. 2020) – Reiterates that persecution requires a “systematic, sustained pattern” and emphasizes that isolated assaults or threats generally fail. Gjetani’s framework guides both the past-persecution and future-fear analyses.
• Rangel v. Garland, 100 F.4th 599 (5th Cir. 2024) – Clarifies severity thresholds and the four-factor test for future persecution. The panel cites Rangel to stress that mere civil strife or generalized danger is inadequate.
• Eduard v. Ashcroft, 379 F.3d 182 (5th Cir. 2004) – One-time assaults (a rock-throwing incident) did not equal persecution. Analogized to Rubio’s single shooting.
• Tamara-Gomez v. Gonzales, 447 F.3d 343 (5th Cir. 2006) – The paradigmatic “organized, relentless campaign.” Used as a foil to show what Rubio’s experiences are not.
• Qorane v. Barr, 919 F.3d 904 (5th Cir. 2019) – Threats generally pertain to future, not past, persecution and must be specific and immediate.
• Travel-case string citations: Metreveli (2024), Ndulu (2016), and others—support the new emphasis on voluntary return as undercutting fear.

The court synthesizes these cases to fashion a sturdier bridge between voluntary behavior (cross-border travel and post-incident residency) and the legal conclusion that no reasonable fear exists.

2. Legal Reasoning

a. Past-Persecution Matrix

• Assessed severity (single shooting, non-permanent injury), frequency (isolated episodes across nine years), and targeted vs. crowd-control violence (tear gas dispersed indiscriminately).
• Compared Rubio’s facts against Eduard, Venturini, etc. to place them below the persecution threshold.
• Death-threats were discounted as non-specific, conditional, and stale.

b. Future-Fear Analysis

• The court adopted the four-part Cabrera test (belief, awareness, capability, inclination) albeit implicitly; Rubio’s failure on the “awareness” and “inclination” prongs was decisive.
• Crucially, the panel elevated Rubio’s behavioral evidence (frequent voluntary returns, ability to live safely, ownership of an undamaged home) to near-conclusive weight.
• Emphasized the absence of individualized targeting by state actors—photos at protests are insufficient.

c. Withholding and CAT

• Standard asylum logic: failure on asylum dooms withholding.
• For CAT, the court reiterated that torture must be “under color of law.” State connection to the colectivos remained speculative.
• Again, free travel and intact property undermined the likelihood of future torture.

3. Impact and Forward-Looking Consequences

The decision crystallizes a trend inside the Fifth Circuit that could reverberate nationally:

1. Elevated Evidentiary Weight of Voluntary Return
   By explicitly “boosting” the rule, the panel signals to Immigration Judges and the BIA that repeated safe passages and extended residence gaps can, standing alone, deflate asylum and CAT claims. Practitioners must now be prepared to distinguish or mitigate voluntary-return facts.
2. Tighter Definition of “Past Persecution”
   The judgment reaffirms that even severe one-off violence (a gun-shot, kidnapping) may fall short absent a pattern. Applicants must produce an arc of escalating or systematic harm.
3. Clarification on Threats and General Conditions
   Non-immediate threats—and generic references to deteriorating country conditions—carry scant weight without proof of personal targeting.
4. State-Actor Nexus Under CAT
   The Fifth Circuit underscored that quasi-government militias like Venezuela’s colectivos are not presumed state actors; proof of official direction or acquiescence remains indispensable.
5. Strategic Litigation Implications
   • Expect DHS trial counsel to exploit voluntary-return records.
   • Asylum advocates may pivot to demonstrating changed circumstances post-return or documenting attempts at internal relocation that failed.
   • Country-condition experts must now tailor affidavits to bridge the gap between generalized repression and individualized risk.

Complex Concepts Simplified

• Persecution vs. Prosecution: “Persecution” is extreme, systematic targeting; arrest or harm arising from neutral law enforcement or general unrest, without protected-ground motive, is not persecution.
• Protected Ground: The five statutory grounds are race, religion, nationality, political opinion, and particular social group. Harm for other reasons, like generalized crime, falls outside asylum.
• Well-Founded Fear (Asylum) vs. Clear Probability (Withholding): The former is “reasonable possibility” (≈10–15% chance); the latter is “more likely than not” (>50%).
• Convention Against Torture (CAT): Protection requires a ≥51% likelihood of torture plus state involvement—either direct participation or willful blindness.
• Voluntary-Return Doctrine: Re-entry to the alleged place of persecution—especially multiple times—serves as powerful evidence that the applicant did not perceive, or actually face, serious danger.

Conclusion

Montiel Rubio v. Bondi is less about the tragic facts of a Venezuelan dissident and more about doctrinal tightening. By fortifying the voluntary-return doctrine and insisting on a pattern-plus-nexus showing for persecution, the Fifth Circuit both follows and sharpens its own precedents. Future litigants in the circuit must marshal robust evidence of sustained targeting, immediate specific threats, and government complicity—while being prepared to explain any prior safe sojourns back home. The decision thus marks a notable contraction of asylum and CAT gateways for applicants whose historical conduct suggests they could, and did, live safely in the very country from which they now seek refuge.