“From Speculation to Substantial Evidence” – The Tenth Circuit’s Clarification of the Personalized-Risk Standard for CAT Protection in Moundih v. Bondi

“From Speculation to Substantial Evidence”
The Tenth Circuit’s Clarification of the Personalized-Risk Standard for CAT Protection in Moundih v. Bondi

1. Introduction

Case Name: Fonka Arouna Moundih v. Pamela J. Bondi (Attorney General of the United States)
Court: United States Court of Appeals for the Tenth Circuit
Decision Date: 10 July 2025
Procedural Posture: Petition for review of a single-member BIA decision dismissing appeal from an Immigration Judge (IJ) that denied Convention Against Torture (CAT) protection.

The petitioner, a lawful permanent resident from Cameroon with an aggravated-felony fraud conviction, sought protection under CAT to avoid removal. He alleged a likelihood of torture by a powerful Cameroonian officer (Colonel Emile Joel Bamkoui) and by authorities supposedly angered by political videos he had shared. Both the IJ and BIA found the evidence insufficient. The Tenth Circuit affirmed. The decision is significant for the way it:

  • Re-emphasises that CAT claims require a personalised and non-speculative showing of risk.
  • Explains the evidentiary divide between general country conditions and individualised threat.
  • Clarifies the “hypothetical chain” doctrine first articulated by the Attorney General in In re J-F-F-, and repeatedly adopted by circuit courts.

2. Summary of the Judgment

Applying a two-tier standard of review—de novo for legal questions and substantial evidence for factual findings—the Tenth Circuit held:

  1. The BIA’s determination that Mr. Moundih had not demonstrated it was more likely than not that he would be tortured in Cameroon was supported by substantial evidence.
  2. The IJ’s characterization of his conviction as a particularly serious crime (precluding asylum and statutory withholding) was unchallenged, hence waived.
  3. The petition for review was therefore denied. However, the motion to proceed in forma pauperis was granted because the petition was not frivolous.

3. Detailed Analysis

A. Precedents Cited and Their Influence

The panel expressly or implicitly relied on the following authorities:

  • INS v. Elias-Zacarias, 502 U.S. 478 (1992) – Provides the “evidence compels” standard for overturning agency factual findings.
  • Xue v. Lynch, 846 F.3d 1099 (10th Cir. 2017) – Restates the dual standard (legal de novo; factual substantial evidence) and rejects speculative fears.
  • In re J-F-F-, 23 I.&N. Dec. 912 (A.G. 2006) – Requires applicants to prove each link in any chain of alleged future events leading to torture.
  • In re S-V-, 22 I.&N. Dec. 1306 (BIA 2000) – Emphasises that country-wide human-rights abuses alone do not establish personal risk under CAT.
  • Solomon v. Gonzales, 454 F.3d 1160 (10th Cir. 2006) – Notes CAT carries a higher standard than asylum; failure under asylum generally implies failure under CAT.
  • Medina-Moreno v. Barr, 841 F. App’x 72 (10th Cir. 2020) – Illustrates the speculative-chain principle.
  • Takwi v. Garland, 22 F.4th 1180 (10th Cir. 2022) – Cited by petitioner; court distinguishes it, clarifying limits of that precedent.

Together, these cases illuminate three pillars underpinning the panel’s affirmance: (1) the demanding “compel” test for reversing factual findings, (2) the requirement of individualised risk, and (3) the prohibition on speculative or tenuous causal chains.

B. Court’s Legal Reasoning

  1. Burden of Proof under CAT
    Regulation 8 C.F.R. § 1208.16(c)(2) requires a showing that torture is more likely than not. The IJ addressed each regulatory factor (past harm, relocation, country conditions, other relevant info) and found them unsatisfied.
  2. Assessment of Evidence
    • Country Reports: The IJ looked at all 521 pages but found no nexus to Mr. Moundih that would elevate generalised abuses into a personal threat.
    • Sister’s Mistreatment: Even accepting her allegations, the conduct did not meet CAT’s definition of torture and thus could not substitute for proof of risk to the petitioner.
    • Political Dissidence Claim: Evidence showed limited political activism; no sustained involvement or visibility that would realistically draw government wrath.
    • Colonel Bamkoui Narrative: The alleged feud rested on second-hand assertions and a remote timeline, rendering the threat unduly speculative.
  3. Application of the “Hypothetical Chain” Doctrine
    Citing J-F-F-, the panel underscored that Petitioner's theory piled conjecture upon conjecture: Bamkoui still holds a grudge → finds out about his return → orders his subordinates → they catch him → they employ torture. Any missing link defeats CAT eligibility.
  4. Standard of Review Barrier
    Even if an alternative view of the record existed, the question was whether the evidence compelled the contrary conclusion. The panel found the record not only permitted but supported the agency’s conclusion.

C. Anticipated Impact on Future Litigation

  • Elevates Evidentiary Demands in the Tenth Circuit – Applicants must now anticipate rigorous scrutiny of each factual link and cannot rely on broad, country-wide human-rights documentation.
  • Guidance for Practitioners – Counsel must marshal direct, up-to-date, and personalised proof (e.g., specific threats, recent harassment, official documents) and explain why safe relocation internally is impossible.
  • Precedential Persuasiveness – Though technically “non-precedential,” the order will likely be cited (under Fed. R. App. P. 32.1) for its concise synthesis of CAT standards; IJs in the Tenth Circuit commonly view unpublished circuit rulings as persuasive authority.
  • Effect on Aggravated Felons – The opinion reiterates that CAT remains the only path for aggravated felons barred from asylum/withholding, but also that CAT is no easy escape hatch.
  • Clarification of Takwi’s Reach – By distinguishing Takwi, the panel signals that credibility presumptions do not foreclose an IJ from finding evidence insufficient under CAT.

4. Complex Concepts Simplified

  • CAT (Convention Against Torture) – An international treaty forbidding nations from returning individuals to countries where they are likely to be tortured. Implemented in U.S. immigration law via regulations.
  • “More Likely Than Not” Standard – Roughly a 51 % probability. Higher than the “reasonable possibility” test for asylum but lower than “clear and convincing” evidence.
  • Torture (Regulatory Definition) – Severe physical or mental pain or suffering, intentionally inflicted by or with the consent/acquiescence of a public official.
  • Substantial Evidence Review – The appellate court defers to agency fact-finding unless the record would compel any reasonable fact-finder to reach the opposite conclusion.
  • In Forma Pauperis – Permission to pursue an appeal without prepaying filing fees, granted upon showing inability to pay and a non-frivolous legal argument.
  • Particularly Serious Crime – A criminal bar to asylum and withholding; once the agency so designates a conviction (and the designation is unchallenged), CAT is the sole remaining protection.
  • “Hypothetical Chain” Doctrine – An applicant must substantiate each link in a proposed sequence of events leading to torture; conjectural or attenuated chains fail.

5. Conclusion

Moundih v. Bondi sharpens the contours of CAT jurisprudence in the Tenth Circuit. The panel fortifies three core principles:

  1. CAT relief demands individualised and contemporary evidence of probable torture, not historical grievances or general unrest.
  2. An appellate court’s hands are tied by substantial-evidence review; absence of proof compelling a contrary conclusion dooms the petition.
  3. Speculative narratives—no matter how plausible—cannot bridge evidentiary gaps; each causal link between removal and torture must be documented.

For immigration practitioners, the decision is both a cautionary tale and a practical checklist: exhaust all admissible, up-to-date evidence, trace a direct line from the applicant to the feared torturer, and pre-empt the too speculative critique. While not precedential in the formal sense, Moundih will resonate across removal proceedings, reminding stakeholders that CAT, by design, sets a high bar—one that mere speculation cannot surmount.

Case Details

Year: 2025
Court: Court of Appeals for the Tenth Circuit

Comments