Immigration – BIA misapplied standard in reviewing IJ’s torture decision

Where an immigration judge found that a man’s fear of torture in Jamica qualified him for deferral of removal, but the Board of Immigration Appeals found the fear was too speculative, the court now vacated the BIA’s decision. It misapplied the clear-error standard that governs its review of an IJ’s factual findings and impermissibly engaged in its own de novo weighing of the evidence.

Background

Pierre Riley requested for deferral of removal under the Convention Against Torture, or CAT. An IJ granted Riley that relief. But the BIA disagreed, finding that the IJ erred in his factual findings and that Riley’s fear of torture in Jamaica was too speculative to qualify him for deferral of removal.

This court originally dismissed Riley’s petition without considering its merits, finding it lacked jurisdiction because the petition was untimely under 8 U.S.C. § 1252(b)(1). On certiorari review, the Supreme Court agreed that Riley’s petition was untimely.

But it did not agree that § 1252(b)(1)’s filing deadline is jurisdictional, categorizing it instead as a claims-processing rule. And because the government has waived enforcement of that rule in Riley’s case, the Supreme Court held, § 1252(b)(1) does not preclude this court from reviewing Riley’s petition.

Jurisdiction

The government now argues that this court lacks jurisdiction over Riley’s petition based on a new theory, raised in a concurrence to the Supreme Court’s decision in Riley: Riley seeks review only of the BIA order denying CAT relief, not his original removal order, and under the statute implementing the CAT, this court may review CAT orders only “as part of the review of a final order of removal.” The government’s motion to dismiss raises a substantial argument, and three federal courts of appeals have agreed that they lack jurisdiction to hear CAT claims independent of challenges to final orders of removal.

According to Riley, however, it is not CAT’s implementing statute that confers jurisdiction over CAT orders but 8 U.S.C. § 1252(a)(4), which allows for review of a “claim under the [CAT]” by a “petition for review,” period, with no further requirement that the petition seek review of a removal order. And the Third Circuit recently adopted that position, leaving a split of authority in the federal circuit courts.

The court need not resolve this complicated question today, because it agrees with Riley that he should be permitted to amend his petition for review so that it includes within its scope his final administrative removal order, or FARO, as well as the BIA’s CAT order. That is precisely the process the Supreme Court laid out in Riley to ensure judicial review of CAT claims.

According to the government, however, an amended petition that seeks only nominal review of Riley’s FARO and presents no substantial challenge to that order cannot be used as a backdoor to review of Riley’s CAT claim. But as this court reads Riley, such nominal challenges to removal orders are exactly what is contemplated.

The court recognizes that the Ninth Circuit, in a similar case, recently denied a noncitizen’s request to amend his petition for review. Only an actual and “colorable” claim against removability, the Ninth Circuit held, would be sufficient to invoke its jurisdiction. With respect, this court is not persuaded that this is the right approach.

Merits

Riley seeks review of the determination by the BIA that the IJ erred in granting him CAT relief. According to Riley, the BIA misapplied the clear-error standard that governs its review of an IJ’s factual findings, impermissibly engaging in its own de novo weighing of the evidence. This court agrees with Riley and therefore grants his petition for review, vacates the decision of the BIA and remands the case for the BIA to apply the correct standard of review.
Amended petition for review granted; order vacated and remanded.

Dissenting opinion

Quattlebaum, J., dissenting: Riley’s petition to review his CAT order is not part of a petition to review his removal order. So, we should dismiss this case for lack of jurisdiction. The majority avoids this result by granting Riley’s motion to amend his petition to add a nominal challenge to his final order of removal. It reads the Supreme Court’s opinion remanding this case to allow us to pretend Riley is challenging his order of removal when we can all see that he isn’t. I disagree. As to the merits of Riley’s petition, the BIA properly found that the evidence produced by Riley was legally insufficient.

Riley v. Blanche, Case No. 22-1609, July 2, 2026. 4th Cir. (Harris), from Board of Immigration Appeals. Elizabeth Frances Profaci for Petitioner. Corey Leigh Farrell for Respondent. VLW 026-2-242. 43 pp.

Full-Text Opinion.