U.S. Appeals Board Tightens Requirements for Proving Torture Risk to Avoid Deportation

The U.S. Board of Immigration Appeals (BIA) has set a binding precedent emphasizing the necessity for providing specific and individualized evidence of the risk of torture to obtain protection against deportation under the Convention Against Torture (CAT).

This decision, known as Matter of K-Y-V-R-, 30 I&N Dec. 203 (BIA 2026), was issued on September 10, 2026, and was designated as a precedent on October 27 through Attorney General Order No. 7272-2026.

The ruling clarifies that general information about violence or insecurity in a country is insufficient to prove that an individual is likely to suffer torture if deported. It also highlights the importance of assessing whether the applicant could relocate to a different region within their country to avoid danger.

The Case of a Salvadoran Threatened by Gangs

The decision arose from a case involving a Salvadoran citizen seeking protection from deportation after facing threats and assaults from gang members who attempted to recruit him since childhood. According to his testimony, gang members threatened him several times, threw stones at his home, and physically assaulted him at school because he refused to join their criminal group. He fled El Salvador in 2015 at the age of 17.

On January 21, 2020, a U.S. immigration judge granted him protection under the CAT, determining that he would likely be tortured if returned to his country. The Department of Homeland Security (DHS) appealed this decision to the BIA, which ultimately sided with the U.S. government, revoked the protection granted, and ordered the applicant's deportation to El Salvador.

Why Did the BIA Deny Torture Protection?

The BIA concluded that the judge's determination of a future risk of torture was speculative and not adequately supported by the evidence in the record. A key issue was that the judge had excessively relied on general reports about gang violence in El Salvador without sufficiently demonstrating that the individuals who threatened the applicant during childhood continued to pose a threat.

The court emphasized that the man had not provided evidence that gang members had attempted to locate him since his departure from the country in 2015. Additionally, there was no evidence that his relatives in El Salvador or other close individuals had been interrogated, threatened, or pursued by these groups since then.

For the BIA, these elements were crucial in assessing whether past threats justified concluding that the applicant currently faced a substantial probability of being tortured. The decision does not rule out the use of reports on a country's general conditions but makes it clear that they must relate to the specific circumstances of the applicant seeking protection.

The Possibility of Relocating Within the Country

Another critical aspect was whether the applicant could establish himself in a different region of El Salvador to avoid his former aggressors. The immigration judge had considered that the man would face difficulties relocating due to limited education, lack of work experience, and few family ties in the country. However, the BIA found that these considerations were not sufficiently backed by the record.

The court noted that the applicant had never attempted to move to another location within El Salvador and that, while most of his family resided in the United States, he had uncles working as police officers in the Salvadoran territory. It also observed that he was now an adult capable of working and had not presented enough evidence to prove he was unable to find employment and live outside his hometown.

The BIA thus determined that the judge’s conclusion regarding the impossibility of avoiding risk through internal relocation was not adequately supported.

Implications for Other Immigrants

The Attorney General's designation of this decision as a precedent means its legal criteria is binding in immigration administrative proceedings involving similar issues. This is particularly significant for individuals seeking CAT protection based on gang threats, past assaults, or violence in their home countries. The ruling underscores the importance of providing elements that allow for assessing the personal risk, such as recent threats, attempts at locating the applicant, assaults on family members, or other evidence linking the reported danger to the applicant's specific situation.

It also highlights the need to examine whether there is an internal relocation alternative to avoid the feared harm, considering the circumstances of each case. The decision does not imply that victims of gang violence are automatically excluded from CAT protection or that internal relocation is always feasible. The evaluation must be based on the evidence available in each case file.

Impact on Cuban Deportees

The precedent may also impact Cubans facing deportation proceedings in the United States who seek protection under the Convention Against Torture due to fear of reprisals upon returning to the island. This includes those claiming to have been threatened, detained, beaten, or persecuted for political reasons. While reports on repression and human rights violations in Cuba can serve as evidence, the decision stresses they must relate to the individual circumstances of the applicant.

For example, a Cuban alleging threats from State Security agents might need to provide testimonies, medical documents, detention records, threatening communications, or other evidence supporting the risk faced. The possibility of moving to another Cuban province could also be part of the assessment, though the court would need to consider whether such an alternative would truly mitigate the risk, especially when the threat comes from state authorities.

The ruling does not eliminate CAT protection for Cubans or establish that they can be automatically deported, but it reinforces the importance of substantiating the personal risk of torture with concrete evidence.

CAT Protection Requirements

To secure protection under the CAT, an individual must demonstrate a probability greater than 50% of suffering torture if sent to the destination country. The regulations also require that the torture be inflicted by a public official or someone acting in an official capacity, or occur with their consent or acquiescence, including willful blindness to acts by third parties.

These requirements were in place before the decision. The Matter of K-Y-V-R- precedent does not create a new probability threshold but reaffirms the need for adequately grounding conclusions on future danger and the individual circumstances of the applicant. In this case, the BIA found the evidentiary deficiencies concerning the risk of torture and internal relocation sufficient to resolve the appeal, thus not examining whether Salvadoran authorities would have consented to or tolerated the alleged acts of torture.

Distinctions Between Asylum and CAT Protection

CAT protection is different from asylum and withholding of removal under U.S. immigration law. Asylum protects individuals who meet legal criteria related to persecution based on race, religion, nationality, political opinion, or membership in a particular social group. Those granted asylum can apply for permanent residency after meeting the necessary requirements, including the statutory period.

Withholding of removal prevents deportation to a country where persecution risk is demonstrated but does not itself grant permanent residency. CAT protection stops deportation to a country where the person would likely suffer torture but does not automatically provide permanent resident status or the family benefits associated with asylum.

Unlike asylum, CAT protection does not require proving that the risk of torture is due to one of the five protected grounds under asylum law.

The Matter of K-Y-V-R- decision specifically pertains to CAT protection. In this case, the applicant did not contest prior denials of his asylum and withholding of removal applications under immigration law, leading the BIA to consider those appeals waived.