S-S

Cite as 

 (BIA 2025)                                Interim Decision #4109




                          Matter of S-S-, Respondent
                         Decided by Board June 16, 2025 1
                           U.S. Department of Justice
                    Executive Office for Immigration Review
                        Board of Immigration Appeals

  The Immigration Judge erred in concluding that the respondent would more likely than
not be tortured in detention in Haiti where the Immigration Judge did not find that his
detention would be long term and where the record did not establish that the harsh
conditions in Haitian detention were specifically intended to torture.
FOR THE RESPONDENT: Lisa M. Rosado, Esquire, Miami, Florida
FOR THE DEPARTMENT OF HOMELAND SECURITY: Evelin Mac Clay Migueles,
Assistant Chief Counsel
BEFORE: Board Panel: MALPHRUS, Chief Appellate Immigration Judge; MULLANE
and GOODWIN, Appellate Immigration Judges.
MULLANE, Appellate Immigration Judge:


   The respondent is a native and citizen of Haiti. The Department of
Homeland Security (“DHS”) appeals from an Immigration Judge’s
October 28, 2024, decision granting his application for deferral of removal
under the regulations implementing the Convention Against Torture
(“CAT”). 2 The respondent has filed a brief in opposition to the appeal. The
appeal will be sustained.

   The respondent has been diagnosed with schizophrenia; schizoaffective
disorder, depressive type; and major depressive disorder with psychotic
symptoms. He also has been hospitalized while detained and described
as “actively psychotic with suicide ideations with a plan.”         The
Immigration Judge’s finding that the respondent lacked sufficient
mental competency to represent himself in removal proceedings under
1
   Pursuant to Order No. 6319-2025, dated July 8, 2025, the Attorney General designated
the Board’s decision in Matter of S-S- (BIA Jun. 16, 2025), as precedent in all proceedings
involving the same issue or issues. See 

(g)(3) (2025). Editorial changes
have been made consistent with the designation of the case as a precedent.
2
   The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment, Dec. 10, 1984, S. Treaty Doc. No. 100-20, 1465 U.N.T.S. 85 (entered into
force for United States Nov. 20, 1994). 

(c), 1208.17 (2025);
8 C.F.R.§ 1208.18(a) (2020).
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Matter of M-A-M-, 

 (BIA 2011), is not at issue on appeal.
Likewise, the Immigration Judge’s implementation of safeguards, including
appointment of counsel, is not at issue.

    The parties dispute whether the Immigration Judge erred in concluding
that the respondent established that he more likely than not would be tortured
upon removal to Haiti. To establish eligibility for CAT protection, the
respondent must show that he more likely than not will be tortured if removed
to Haiti. See 

(c)(2), 1208.18(a); see also Reyes Sanchez
v. U.S. Att’y Gen., 

 (11th Cir. 2004). The respondent
fears: (1) as a mentally ill criminal deportee, he will be indefinitely detained
upon removal to Haiti in conditions constituting torture; and (2) he will be
tortured for being mentally ill, whether detained or not, by Haitian
authorities, gangs, or members of the community, by or with the
acquiescence of a public official.

   Relying on the United States Department of State, Bureau of Democracy,
Human Rights, and Labor, 2023 Country Reports on Human Rights Practices
for Haiti and the testimony of expert witness Michelle Karshan, the
Immigration Judge found that the respondent more likely than not would be
detained upon removal to Haiti as a criminal deportee without family
available to secure his release. The Immigration Judge further found that the
respondent faced increased risk of subsequent arrest and detention as a
criminal deportee, even after his release into Haiti.

    The Immigration Judge did not determine whether the respondent’s
detention would more likely than not continue long term. See Bonnet v.
Garland, 

, 85–86 (1st Cir. 2021) (affirming the agency’s
determination that there was insufficient evidence that the respondent would
be held in prolonged detention upon removal to Haiti). Along these lines,
Ms. Karshan provided different scenarios of what could happen to the
respondent upon return to Haiti, which included him being quickly released
and being released upon a family member’s payment of a bribe. Ms. Karshan
also could not estimate how many criminal deportees were incarcerated or
killed in 2022 or 2023. Anecdotal reports of some criminal deportees being
indefinitely detained in torturous conditions are insufficient to establish that
the respondent is more likely than not to have that experience. See Matter of
A-A-R-, 

, 41–42 (BIA 2025). It is thus unclear whether the
respondent will be subjected to the detention conditions that he claims will
constitute torture. See Matter of J-F-F-, 

, 917–18, 918 n.4
(A.G. 2006) (emphasizing that the Immigration Judge must identify each step
in the hypothetical chain of events that will lead to the alien’s torture and that
each link must be more likely than not to occur).
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    Moreover, even assuming arguendo that the respondent is detained long
term upon removal, we conclude upon de novo review that the Immigration
Judge erred in determining that the conditions of the respondent’s detention
would constitute torture. See Matter of R-A-F-, 

(A.G. 2020); 

(d)(3)(ii) (2025). The respondent’s
allegations about the conditions he would face in long-term detention are
similar to the conditions that we considered in Matter of J-E-, 

 (BIA 2002). In that case, the respondent presented articles
confirming the assessment of the United States Department of State that
prison conditions in Haiti were inhumane. Matter of J-E-, 23 I&N Dec.
at 293. We concluded that although Haitian authorities were intentionally
detaining criminal deportees in knowingly substandard detention facilities,
the respondent did not show that they were intentionally and deliberately
maintaining such conditions to inflict torture. Id. at 301. The record instead
demonstrated that Haitian prison conditions were “the result of budgetary
and management problems as well as the country’s severe economic
difficulties.” Id. The record also showed that the Haitian government freely
permitted human rights groups to enter detention settings. Id. We therefore
concluded that the respondent had not demonstrated that the inhumane prison
conditions were “specifically intended to inflict severe pain or suffering,” as
required to constitute torture under the regulations. Id. at 300–01.

    In this case, the respondent presented similar evidence of dangerous and
unsanitary detention conditions in Haiti. The Immigration Judge did not find
that public officials are “intentionally and deliberately creating and
maintaining [harsh detention] conditions” that the respondent could be
exposed to for the specific purpose of inflicting pain or suffering. Matter of
J-R-G-P-, 

 (BIA 2018) (emphasis omitted) (quoting
Matter of J-E-, 23 I&N Dec. at 301). Rather, the Immigration Judge’s
finding, based on Ms. Karshan’s testimony, that “prison guards and police
have the same lack of understanding of mental illness that is widespread
among Haitian society” shows a lack of specific intent to torture mentally-ill
detainees. The instant case is therefore indistinguishable from Matter of
J-E-. The respondent’s failure to show that Haitian officials are intentionally
and deliberately creating and maintaining the harsh detention conditions that
he fears for the specific purpose of inflicting severe pain or suffering warrants
reversal of the grant of his application for CAT protection. See Matter of
A-A-R-, 

; cf. Jean-Pierre v. U.S. Att’y Gen., 

,
1324–27 (11th Cir. 2007) (remanding for additional analysis of whether the
respondent would specifically and individually be singled out for torture).

  In addition, the Immigration Judge did not evaluate an IOM U.N.
Migration report stating that the organization provides counseling,
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medication, and bus money to deportees upon arrival in Haiti. Ms. Karshan
further admitted that deportees sometimes receive necessary medication. As
discussed, the respondent also has not shown that Haitian authorities
maintain inhumane detention conditions with the specific intent of torturing
detainees. See Matter of J-E-, 23 I&N Dec. at 300–01. We therefore reverse,
as clearly erroneous, the Immigration Judge’s findings that the respondent is
more likely than not to be: (1) unable to receive medical treatment;
(2) detained as a result; and (3) tortured in detention because he exhibits
mental health symptoms. See Matter of J-F-F-, 23 I&N Dec. at 917-18, 918
n.4; see also Matter of R-A-F-, 27 I&N Dec. at 779 (holding that while the
Board reviews Immigration Judge’s predictive findings about what is likely
to happen for clear error, whether the predicted outcome satisfies the legal
definition of torture is a legal determination). Anecdotal reports of some
instances of people having been tortured in detention in Haiti, although
deplorable, are insufficient to show that the respondent is more likely than
not to experience harm rising to that level. See Matter of A-A-R-, 29 I&N
Dec. at 41–42; Matter of J-E-, 23 I&N Dec. at 303–04.

    Regarding the respondent’s fear of being tortured outside of a detention
setting in Haiti, the Immigration Judge found that the respondent is
vulnerable to being tortured by members of the community because his
mental health conditions make it likely that he will exhibit erratic and
abnormal behavior. The Immigration Judge did not identify each step in a
hypothetical chain of events that would lead to the respondent’s torture in the
community and did not find that each event is more likely than not to occur.
See Matter of J-F-F-, 23 I&N Dec. at 917–18, 918 n.4. The Immigration
Judge’s finding that the respondent would be “vulnerable” to torture is
insufficient, as the respondent bears the burden of showing that he more
likely than not will be tortured upon removal to Haiti. See Reyes Sanchez,

; 

(c)(2), 1208.18(a); see also Matter of
N-N-B-, 

 (BIA 2025) (concluding that in finding the
respondent “could be” subject to torture, the Immigration Judge applied the
wrong legal standard). Further, generalized evidence that some gangs have
ties to politicians and police in Haiti is insufficient to establish that the police
cannot or will not help the respondent in his individual case, as required for
him to prove acquiescence. See Matter of M-S-I-, 

(BIA 2025).

    Overall, we conclude that the Immigration Judge factually and legally
erred in determining that the respondent established that he more likely
than not would be “tortured” by or with the acquiescence (including
the concept of willful blindness) of a public official of the Haitian
government upon removal. See Reyes Sanchez, 

;
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(c)(2), 1208.18(a); see also Matter of Z-Z-O-, 

 (BIA 2015) (holding that an Immigration Judge’s predictive
findings of what may or may not occur are reviewed for clear error). We
therefore will sustain DHS’ appeal and vacate the Immigration Judge’s
decision granting the respondent’s application for deferral of removal under
the CAT. The respondent shall be removed to Haiti pursuant to the
Immigration Judge’s order of removal.

   ORDER: The appeal is sustained.
    FURTHER ORDER: The Immigration Judge’s October 28, 2024,
decision granting the respondent’s application for deferral of removal under
the CAT is vacated.

   NOTICE: If a respondent is subject to a final order of removal and
willfully fails or refuses to depart from the United States pursuant to the
order, to make timely application in good faith for travel or other documents
necessary to depart the United States, or to present himself or herself at the
time and place required for removal by DHS, or conspires to or takes any
action designed to prevent or hamper the respondent’s departure pursuant to
the order of removal, the respondent shall be subject to a civil monetary
penalty of up to $998 for each day the respondent is in violation. See section
274D of the Immigration and Nationality Act, 8 U.S.C. § 1324d (2018);

(b)(14) (2025).




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