O-Y-A-E

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 (BIA 2025)                                Interim Decision #4118




                      Matter of O-Y-A-E-, Respondent
                         Decided by Board July 23, 2025 1
                           U.S. Department of Justice
                    Executive Office for Immigration Review
                         Board of Immigration Appeals

   Evidence of human rights abuses in Venezuela and past threats to the respondent do not
establish an individualized risk of torture where the last threat occurred years before the
respondent left the country and the respondent was otherwise unharmed following the
threats.
FOR THE RESPONDENT: Brent Johnson, Esquire, Tucson, Arizona
FOR THE DEPARTMENT OF HOMELAND SECURITY: Bret J. Engstrom, Assistant
Chief Counsel
BEFORE: Board Panel:         MULLANE, HUNSUCKER, and GOODWIN, Appellate
Immigration Judges.
GOODWIN, Appellate Immigration Judge:


   The Department of Homeland Security (“DHS”) appeals from the
Immigration Judge’s decision dated December 4, 2024, granting the
respondent’s request for protection under the regulations implementing the
Convention Against Torture (“CAT”). 2 The respondent, a native and citizen
of Venezuela, opposes DHS’ appeal and urges us to affirm the Immigration
Judge’s decision. The appeal will be sustained.

    The respondent served in the Venezuelan military as a counterintelligence
officer and lieutenant. She fears she will be beaten, kidnapped, detained,
tortured and/or killed if she returns to Venezuela due to her refusal to comply

1
   Pursuant to Order No. 6380-2025, dated August 20, 2025, the Attorney General
designated the Board’s decision in Matter of O-Y-A-E- (BIA July 23, 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(a) (2025);

(a) (2020).

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with Commander Ortado’s 3 order to falsify a document. 4 The Immigration
Judge first found that the serious nonpolitical crime and the persecutor bars
applied to the respondent’s case, rendering her ineligible for asylum,
withholding of removal under the Immigration and Nationality Act (“INA”),
and withholding of removal under the CAT. See INA §§ 208(b)(2)(A)(i),
(iii), 241(b)(3)(B)(i), (iii), 

(b)(2)(A)(i), (iii),
1231(b)(3)(B)(i), (iii); 

(d)(2) (2025). However, the
Immigration Judge found the respondent credible and found that she met her
burden of proof for deferral of removal under the CAT. See 

(a) (2025).

    Specifically, the Immigration Judge found that while the respondent did
not experience torture in the past, Commander Ortado threatened to kidnap,
imprison, torture, and kill the respondent and her family. The Immigration
Judge found that the respondent credibly testified that she personally
witnessed the torture of another officer named Ozuna. The Immigration
Judge also found that even after the respondent sought retirement from the
military, Commander Ortado sent an armed military unit to her home looking
for her and threatened her. The Immigration Judge further found that given
the respondent’s time in the military as a counterintelligence officer, the
Venezuelan government possesses the necessary resources to readily identify
her upon her return to Venezuela. Based on this, and the country conditions
showing torture and human rights abuses by the Venezuelan regime, the
Immigration Judge found that upon her return to Venezuela, the respondent
is more likely than not to be detained and subjected to torture by the
Venezuelan military. This appeal by DHS followed.

    Although we review the Immigration Judge’s factual findings for clear
error, we review de novo whether the respondent has satisfied her ultimate
burden of proof for deferral of removal under the CAT. See Matter of
R-A-F-, 

 (A.G. 2020). On appeal, DHS argues that the
respondent’s fear of torture by Commander Ortado or the Venezuelan
military is too speculative. DHS claims that the only evidence that would

3
   The parties and the record refer to this same individual in various ways, such as
Carlos Teran Hurtado, Carlos Turan Ortado, General Teran Hurtado, Commander Tehran
Ortado, General Carlos Duran Ortado, and Commander Tehran. We will refer to him as
“Commander Ortado,” as it appears on the transcript of the Immigration Judge’s oral
decision.
4
    The respondent explained that the unlawful document she refused to sign off on was
regarding the alleged plans of a division of the military that intended to commit a terrorist
attack.

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suggest “any future government involvement or acquiescence in possible
torture of the respondent are actions that the respondent witnessed from
Ortado while [s]he was a military commander prior to July 2021.” DHS
argues that the respondent admitted that she was not harmed or threatened
after July 2021 until she fled in February 2024 and did not have any contact
with Commander Ortado or any of his subordinates after July 2021. DHS
also asserts that the respondent successfully retired from the military and that
Commander Ortado did not express any negative feeling about it. DHS
further argues that the Immigration Judge incorrectly stated that the visit
from the military unit occurred “after she retired from the military or sought
retirement from the military,” but rather, the respondent testified that the visit
was “the catalyst for her decision to retire.”

    The respondent submitted a brief opposing DHS’ appeal, arguing that the
Immigration Judge properly found that she is more likely than not to be
subjected to torture by the Venezuelan military if she returns to Venezuela.
In her brief, she reiterates that Commander Ortado is under European Union
(“EU”) sanctions due to his human rights violations as a Venezuelan military
official, which she states is corroborated by the EU’s own documentation in
the record. The respondent further claims that in July 2021, after receiving
the initial threats, she requested a transfer in her role; in response, the
commander again threatened to imprison her if she did not comply with his
orders and mockingly laughed at her, telling her that she “was not going
anywhere.” Her opposition brief states that it was after these incidents that
the commander sent military units to the respondent’s home on two occasions
to threaten her, which led her to request her retirement.

    The record shows the respondent testified that both times Commander
Ortado’s military unit went to her home were in July 2021, and it was after
the second visit that she decided to request retirement. The record also
confirms that the respondent testified that she was not harmed or threatened
after July 2021. Therefore, the Immigration Judge clearly erred in finding
that even after the respondent sought retirement from the military in July
2021, Commander Ortado sent an armed military unit to her home looking
for her and threatened her again. See 

(d)(3)(i) (2025); see
also Ridore v. Holder, 

 (9th Cir. 2012) (explaining that the
Board reviews factual findings only for clear error and must explain why it
is finding clear error). The Immigration Judge rested his decision granting
CAT protection, in large part, on this erroneous factual finding. As such, we
also find clear error in the Immigration Judge’s predictive factual finding that
the respondent is more likely than not to suffer torture if she returns to
Venezuela. See Matter of R-A-F-, 

 (indicating that the

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Immigration Judge’s predictive factual findings as to what will happen to the
respondent if returned are reviewed for clear error).

    As discussed, the respondent was not threatened or harmed any time after
July 2021, and she remained in Venezuela until February 2024 without any
further contact from Commander Ortado or any of his subordinates. The
record does not show that Commander Ortado or the Venezuelan military
were looking for the respondent or were interested in her in any way after
she officially retired from the military in December 2021. The respondent
argues that she moved from place to place following her retirement in
December 2021, but she testified that the military knew all her addresses, yet
they did not look for her. Additionally, while the record shows that
Commander Ortado was under EU sanctions and the country conditions
depict human rights abuses by the Venezuelan government, this evidence is
insufficient to show that the respondent would more likely than not
experience torture upon return to Venezuela. See 

(c)(2).
Based on the foregoing, we find that the respondent has not established an
individualized risk of torture in Venezuela. See Dhital v. Mukasey,

 (9th Cir. 2008) (finding that an applicant for protection
under the CAT “must demonstrate that he would be subject to a
‘particularized threat of torture’” (emphasis omitted) (quoting Lanza v.
Ashcroft, 

 (9th Cir. 2004))); see also Tzompantzi-Salazar
v. Garland, 

, 706–07 (9th Cir. 2022) (holding that although the
country conditions evidence acknowledged crime and police corruption in
Mexico generally, the evidence failed to show that the respondent faced a
particularized, ongoing risk of future torture, and thus the agency did not err
in concluding the respondent was not eligible for CAT relief).

    Accordingly, we find that the respondent has not established she is
eligible for deferral of removal under the CAT, and we reverse the
Immigration Judge’s decision granting the respondent’s request for such
relief. The following orders will be entered.

   ORDER: The appeal is sustained.
   FURTHER ORDERED: The respondent is ordered removed to
Venezuela.

   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

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time and place required for removal by DHS, or conspires to or takes any
action designed to prevent or hamper the respondents 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 INA
§ 274D, 8 U.S.C. § 1324d (2018); 

(b)(14) (2025).




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