Protective/Amended Petitions Preserve CAT Review After Waiver of § 1252(b)(1); BIA Must Apply Genuine Clear-Error Review to IJ Factfinding

Introduction

Pierre Riley v. Todd Blanche (4th Cir. July 2, 2026) returns to the Fourth Circuit on remand from the Supreme Court after a multi-year dispute over whether federal courts may review a denial of protection under the Convention Against Torture (“CAT”) when the petition for review was not filed within 30 days of the original removal order. Riley—an aggravated felon subject to a Final Administrative Removal Order (“FARO”)—pursued CAT deferral in “withholding-only” proceedings, alleging that a Jamaican “Don,” Andrew Hamilton, orchestrated family murders and threatened to kill him upon return, and that Jamaican police would acquiesce.

The key issues on remand were:

1. Jurisdictional framing after the Supreme Court’s decision: whether a CAT-only petition is reviewable absent an accompanying challenge to a final removal order, and whether Riley may amend his petition to include review of the FARO.
2. Agency appellate review discipline: whether the Board of Immigration Appeals (“BIA”) misapplied its clear-error standard when overturning the Immigration Judge’s (“IJ”) factual findings supporting CAT deferral.

The petitioner is Pierre Yassue Nashun Riley. The respondent is Todd Blanche, Acting Attorney General. Judge Harris (joined by Judge King) authored the majority opinion; Judge Quattlebaum dissented.

Summary of the Opinion

The Fourth Circuit:

• Granted Riley’s motion to amend his petition for review to include the January 26, 2021 FARO, relying on 28 U.S.C. § 1653 to cure any potential jurisdictional defect.
• Declined to resolve the broader statutory question (raised by the government) whether CAT orders are reviewable only “as part of the review of a final order of removal,” because amendment mooted the controversy.
• On the merits, held that the BIA erred by effectively conducting de novo reconsideration of the facts rather than applying the required clear-error review to the IJ’s factual findings.
• Vacated the BIA’s decision and remanded for the BIA to apply the correct standard of review.

Analysis

1) Precedents Cited

A. Supreme Court framework on timing, finality, and “withholding-only” proceedings

• Riley v. Bondi, 606 U.S. 259 (2025)
  Role in this opinion: This is the controlling remand decision. The Supreme Court agreed Riley’s petition was untimely under the Court’s reading of when the § 1252(b)(1) clock starts, but held the 30-day deadline is a claims-processing rule, not jurisdictional, and therefore subject to waiver. Because the government waived enforcement, the Fourth Circuit could proceed. The Fourth Circuit uses Riley for two additional propositions: (i) CAT relief is “country-specific,” leaving the underlying removal order intact; and (ii) the Supreme Court’s suggested “protective appeals” approach supports allowing nominal petitions tied to removal orders to preserve review.
• Johnson v. Guzman Chavez, 594 U.S. 523, 536 (2021)
  Role: Cited for the nature of withholding/CAT relief as “country-specific” and not affecting the validity of the underlying removal order—crucial to the timing/jurisdiction puzzle because CAT adjudication can trail far behind the FARO.
• Moncrieffe v. Holder, 569 U.S. 184, 187 & n.1 (2013)
  Role: Supports the procedural posture: because of aggravated felony convictions, Riley was limited to CAT deferral in withholding-only proceedings.

B. Jurisdictional and procedural doctrines used to reach the merits

• Kporlor v. Holder, 597 F.3d 222, 225 (4th Cir. 2010)
  Role: Supplies the standard that jurisdiction is reviewed de novo.
• Monsalvo Velázquez v. Bondi, 604 U.S. 712, 722 (2025)
  Role: The majority analogizes the government’s position to a rejected “bundle-or-forfeit” theory. Monsalvo Velázquez is invoked for the principle that courts should not force noncitizens to “make up” removability challenges solely to create jurisdiction.
• Binderup v. Pathe Exch. Inc., 263 U.S. 291, 305-06 (1923)
  Role: Cited in discussing (and rejecting) the Ninth Circuit’s “colorable claim” approach that would deny amendment where the added removability challenge is nominal or weak.
• Martinez v. Garland, 86 F.4th 561, 567 (4th Cir. 2023)
  Role: Explains why, pre-Supreme Court remand, the Fourth Circuit treated the FARO as the “final order of removal” for § 1252(b)(1) and dismissed Riley’s petition as untimely; also part of the backdrop for the Supreme Court’s ultimate correction (claims-processing vs. jurisdictional).
• Navarrete v. Bondi, 170 F.4th 1214, 1221 (9th Cir. 2026), Hayles v. U.S. Att'y Gen., __ F.4th __, 2026 WL 1782580, at *4 (11th Cir. 2026), and Bhaktibhai-Patel v. Garland, 32 F.4th 180, 190 n.13 (2d Cir. 2022)
  Role: Identified as authority supporting the government’s “CAT review only as part of removal order review” theory, highlighting a live circuit split.
• Laureano v. Att'y Gen. U.S., 177 F.4th 453, 459-60 (2026)
  Role: Cited as the competing approach recognizing jurisdiction under 8 U.S.C. § 1252(a)(4) for CAT claims even without a simultaneous removal-order challenge, deepening the split.

C. Standard-of-review discipline in CAT adjudication

• Funez-Ortiz v. McHenry, 127 F.4th 498, 508 (4th Cir. 2025)
  Role: Central authority for the proposition that the BIA may not reweigh evidence under the guise of clear-error review; also provides CAT standard elements and acquiescence principles used by the majority.
• Turkson v. Holder, 667 F.3d 523, 527 (4th Cir. 2012)
  Role: Supports that predictive “what will happen upon removal” determinations are factual and primarily for the IJ; the BIA’s review is constrained to clear error.
• Duncan v. Barr, 919 F.3d 209, 213 (4th Cir. 2019)
  Role: The court reviews de novo whether the BIA applied the correct standard of review.
• Cabrera Vasquez v. Barr, 919 F.3d 218, 224 n.3 (4th Cir. 2019)
  Role: Recognizes death threats may constitute torture under CAT, reinforcing the seriousness of Riley’s asserted harm.
• F.J.A.P. v. Garland, 94 F.4th 620, 638 (7th Cir. 2024), abrogated on other grounds by Riley v. Bondi, 606 U.S. 259 (2025)
  Role: Used to emphasize that the BIA’s mere recitation of “clear error” does not immunize analysis that effectively reweighs evidence.
• Soto-Soto v. Garland, 1 F.4th 655, 660 (9th Cir. 2021)
  Role: Cited for the proposition that failure to explain why an IJ’s view is implausible/illogical suggests improper de novo review.

2) Legal Reasoning

A. Jurisdiction: amendment as a practical bridge over an unresolved statutory gap

The remand placed the Fourth Circuit in a procedural cul-de-sac: the Supreme Court removed the “jurisdictional” label from § 1252(b)(1), but Justice Thomas’s concurrence raised a distinct issue—whether CAT review must be tethered to “review of a final order of removal” under the CAT’s implementing scheme (and related provisions). The government adopted that theory on remand.

Rather than decide the substantive jurisdictional question (and thereby take a side in an emerging circuit split), the majority used a narrow, case-specific solution: allow Riley to amend his petition to include review of the FARO. This approach rests on three linked premises:

1. The Supreme Court’s “protective appeals” roadmap in Riley: The majority reads Riley v. Bondi as affirmatively contemplating nominal petitions seeking review of the FARO even where the noncitizen “wishes only to contest” withholding/CAT relief, with abeyance until the withholding-only issue becomes “ready for review.”
2. Waiver of the 30-day rule removes the timeliness barrier: Although the “protective” model assumes a timely FARO petition, the Supreme Court expressly noted that government waiver can preserve review even when the petitioner is mistaken about timing. The majority treats that as eliminating any obstacle to adding the FARO at this stage.
3. No invented removability arguments required: Relying on Monsalvo Velázquez v. Bondi, the court rejects the government’s contention that amendment must include meaningful, merits-based attacks on removability, viewing that as a requirement to “adorn” petitions with pointless challenges.

In short, the majority treats amendment as a doctrinally permitted and administratively sensible mechanism to ensure judicial review without deciding the contested jurisdictional theory outright. That maneuver simultaneously (i) avoids adopting the Ninth/Eleventh approach in Navarrete v. Bondi and Hayles v. U.S. Att'y Gen. (including their “colorable claim” gatekeeping) and (ii) avoids endorsing the Third Circuit’s broader reading in Laureano v. Att'y Gen. U.S..

B. Merits: the BIA’s “clear error” label cannot mask de novo factfinding

The heart of the merits holding is institutional: the IJ is the primary factfinder; the BIA is an appellate body constrained by 8 C.F.R. § 1003.1(d)(3)(i) to clear-error review of facts. The majority identifies several ways the BIA crossed the line:

• Discounting credible, IJ-tested explanations without the “implausible/illogical” showing: The IJ explicitly grappled with the “gap” that Riley lacked first-hand knowledge of Hamilton’s role, and elicited an explanation rooted in how Dons maintain control through visible terror. The BIA rejected this as “speculative” but did not explain why the IJ’s inference was clearly erroneous—i.e., irrational or implausible.
• Reweighing rather than reviewing record evidence: The BIA’s reliance on the timing of Hamilton’s U.S. indictment/possible incarceration was treated by the majority as a de novo “foray” that did not meaningfully undermine the IJ’s theory (ordering vs. personally committing violence).
• Misapprehending the function of country-conditions evidence: The IJ used country reports as “background information” corroborating the social reality of Dons and police corruption. The BIA dismissed the reports because they did not mention Hamilton by name—an analysis the majority views as nonresponsive to the IJ’s actual reasoning.
• Selective reading of the mother’s affidavit on acquiescence: The BIA focused on police unwillingness to investigate threats while Riley was outside Jamaica but ignored additional statements in the same affidavit indicating broader refusal to protect deportees and a “rant” reflecting indifference. That selectivity was treated as evidence reweighing.

The majority concludes the BIA answered the wrong question (“is there sufficient evidence?”) rather than the limited appellate question (“was the IJ’s contrary factual determination clearly erroneous?”). The remedy is vacatur and remand so the BIA can apply the correct standard.

C. The dissent’s competing frame

Judge Quattlebaum’s dissent advances two core counterpoints:

1. Jurisdiction cannot be created by “nominal” amendment: The dissent reads the statutory scheme as requiring real review of a final removal order and argues that a petition cannot be transformed into a review “as part of” a removal order without an actual challenge. It views the majority’s approach as sanctioning meritless petitions and as incompatible with the limited function of 28 U.S.C. § 1653.
2. The BIA made a legal-sufficiency determination, not fact reweighing: On the dissent’s view, even crediting testimony, Riley lacked objective corroboration tying Hamilton to murders/threats and lacked particularized evidence of governmental acquiescence; thus the BIA properly found the evidence insufficient rather than merely disagreeing on weight.

3) Impact

A. Litigation strategy in the Fourth Circuit: amendment as a safety valve

Practically, the opinion signals that—at least where the government has waived the § 1252(b)(1) deadline—the Fourth Circuit will allow petitioners to use amendment to align their petitions with the “protective appeal” architecture described in Riley v. Bondi. This reduces the risk that noncitizens in withholding-only proceedings will be trapped by timing/finality complexities.

B. Doctrinal pressure on the “CAT-only jurisdiction” circuit split

The majority expressly avoids deciding whether jurisdiction over CAT claims arises under FARRA’s “as part of” language (as urged by the government and supported by Navarrete v. Bondi and Hayles v. U.S. Att'y Gen.) or under 8 U.S.C. § 1252(a)(4) alone (as in Laureano v. Att'y Gen. U.S.). But its willingness to permit nominal amendment—without requiring “colorable” removability arguments—functionally blunts the restrictive approach and makes it easier to reach merits review in the Fourth Circuit.

C. Administrative adjudication: reinforced limits on BIA appellate fact review

On the merits, the case strengthens a line of Fourth Circuit decisions (notably Funez-Ortiz v. McHenry and Turkson v. Holder) policing the BIA’s tendency to recast disagreements over inferences and evidentiary context as “clear error.” The message is that when an IJ makes predictive findings grounded in live testimony, corroboration, and country conditions, the BIA must do more than announce speculation; it must show why the IJ’s view is not just debatable, but clearly erroneous.

Complex Concepts Simplified

CAT deferral (deferral of removal)

A form of protection that bars removal to a specific country where torture is likely, but does not cancel the underlying removal order. The government may still remove the person to a different country if legally permissible.

Withholding-only proceedings

Proceedings where removability is not litigated (often already determined by a removal order), and the only question is whether the person qualifies for withholding/deferral protections such as CAT.

Final order of removal (FARO in expedited contexts)

The operative order directing removal. Under Riley v. Bondi, the FARO—rather than the later CAT decision—is the “final order” that triggers the 30-day petition clock in § 1252(b)(1).

Claims-processing rule vs. jurisdictional rule

A jurisdictional rule limits a court’s power and cannot be waived; a claims-processing rule is mandatory but can be waived or forfeited by the parties. Riley v. Bondi held § 1252(b)(1)’s 30-day deadline is claims-processing, enabling waiver.

Clear-error review

A deferential appellate standard: the reviewer may not redo the factfinding; it may overturn only if the lower factfinder’s determination is plainly wrong (often described as illogical or implausible in light of the record).

Government “acquiescence” (CAT)

Not only direct participation by officials, but also situations where officials know (or would likely know) torture will occur and breach a legal duty to intervene.

Conclusion

This remand decision does two significant things in the Fourth Circuit. First, it uses petition amendment—consistent with the Supreme Court’s guidance in Riley v. Bondi and bolstered by Monsalvo Velázquez v. Bondi—to ensure that CAT claims are not lost to procedural traps when the government waives § 1252(b)(1)’s deadline, even if the petitioner does not wish to litigate removability. Second, it reinforces a firm separation of roles between IJs and the BIA: when the IJ makes predictive factual findings supporting CAT relief, the BIA must conduct genuine clear-error review, not reweigh evidence or substitute its own inferences. The practical result is renewed discipline in agency appellate review and a clearer pathway (at least in waiver cases) to judicial consideration of CAT denials arising from withholding-only proceedings.