R-B-E

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 (BIA 2026)                                 Interim Decision #4170




                        Matter of R-B-E-, Respondent
                               Decided March 6, 2026
                           U.S. Department of Justice
                    Executive Office for Immigration Review
                         Board of Immigration Appeals

(1) If a respondent demonstrates past persecution, there is a presumption of a future threat
   to life or freedom on the basis of the original claim, but this presumption may be
   rebutted if there has been a fundamental change in circumstance such that the
   respondent’s life or freedom would not be threatened on account of a protected ground.
(2) Where a presumption of a future threat to life or freedom applies, an Immigration Judge
   cannot rely on generalized crime and widespread violence unrelated to the original
   claim to find the presumption has not been rebutted, particularly where other evidence
   suggests a fundamental change in circumstances such that a respondent will no longer
   be harmed on account of a protected ground.
(3) The respondent’s conviction for Conspiracy to Commit Access Device Fraud in
   violation of 

(b)(2) (2018) constitutes a particularly serious crime
   rendering her statutorily ineligible for withholding of removal.
FOR THE RESPONDENT: Tiffany Chambers, Esquire, Homestead, Florida

FOR THE DEPARTMENT OF HOMELAND SECURITY: Michael J. Gross, Assistant
Chief Counsel

BEFORE: Board Panel:            GOODWIN, GEMOETS, and VOLKERT, Appellate
Immigration Judges.

VOLKERT, Appellate Immigration Judge:


    The Department of Homeland Security (“DHS”) appeals the Immigration
Judge’s May 30, 2025, decision granting the respondent’s application for
withholding of removal under section 241(b)(3)(A) of the Immigration and
Nationality Act (“INA”), 

(b)(3)(A) (2024). DHS argues,
inter alia, that the presumption the respondent’s life or freedom will be
threatened in the future has been rebutted by a fundamental change in
circumstances and, alternatively, that the respondent is barred from
withholding of removal based on a conviction for a particularly serious
crime. The respondent opposes the appeal. 1 We will sustain the appeal,

1
   The respondent and DHS do not challenge on appeal the Immigration Judge’s denial of
the respondent’s applications for asylum, based on a conviction for an aggravated felony,
and adjustment of status under section 209(b) of the INA, 

(b) (2024), as a
matter of discretion. We deem any further arguments on these issues waived. See Matter of
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vacate the grant of withholding of removal, and remand the record to the
Immigration Judge for further proceedings consistent with this order.

              I. FACTS AND PROCEDURAL HISTORY
    The respondent, a native and citizen of Haiti, claims to have suffered
harm in 1999 and 2000 because her family opposed the Lavalas government
led by former President Jean Bertrand Aristide. After entering the United
States in 2001, she was granted asylum on October 21, 2004, and never
adjusted her status to that of a lawful permanent resident. Subsequently, in
2020, the respondent was convicted of Conspiracy to Commit Access Device
Fraud pursuant to 

(b)(2). She was placed in removal
proceedings. The Immigration Judge determined that she had been convicted
of an aggravated felony barring asylum but concluded that the offense did
not constitute a particularly serious crime barring withholding of removal.
The Immigration Judge further determined that the respondent suffered past
persecution in Haiti on account of her political opinion, based on her family’s
opposition to the Lavalas regime and their association with the prior Duvalier
government. The Immigration Judge further relied on evidence of
widespread gang violence, political instability, and deteriorating country
conditions in Haiti to conclude that the respondent would likely face future
harm if returned. Additionally, the Immigration Judge concluded that
internal relocation would be unreasonable given the respondent’s long
absence from Haiti and the pervasive reach of gang activity nationwide. On
that basis, the Immigration Judge granted withholding of removal. DHS filed
the instant appeal.

                                 II. ANALYSIS
                            A. Withholding of Removal

    To qualify for withholding of removal, a respondent must establish that
it is more likely than not that her life or freedom would be threatened on
account of race, religion, nationality, membership in a particular group, or
political opinion. See INA § 241(b)(3)(A), 

(b)(3)(A);

(b) (2026). The burden of proof rests on the respondent
to demonstrate that she faces a clear probability of persecution. See 

(b); see also Rodriguez Morales v. U.S. Att’y Gen., 

 (11th Cir. 2007) (discussing withholding of removal’s clear probability
of persecution standard). If a respondent demonstrates past persecution,

P-B-B-, 

, 44 n.1 (BIA 2020) (stating that arguments not raised on appeal
are deemed waived); Matter of N-A-I-, 

, 73 n.1 (BIA 2017) (same), aff’d
sub nom., Ali v. Barr, 

 (5th Cir. 2020).
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there is a presumption of a future threat to life or freedom on the basis of the
original claim. 

(b)(1)(i). This presumption may be
rebutted if there has been a “fundamental change in circumstances” such that
the respondent’s life or freedom would not be threatened on account of a
protected ground. 

(b)(1)(i)(A).

    We agree with DHS that even assuming the respondent established past
persecution, DHS has rebutted any resulting presumption of a future threat
to life or freedom by demonstrating a fundamental change in circumstances. 2
See 

 The Immigration Judge found that the respondent suffered past
persecution on account of her political opinion based on events that occurred
more than two decades ago during a period of political conflict involving the
Lavalas party, which has long since fallen from power. See Imelda v.
U.S. Att’y Gen., 

, 729–30 (11th Cir. 2010) (recognizing that a
change in the government that has persecuted the alien may constitute a
fundamental change in circumstances). The respondent last resided in Haiti
in 2000, and the record contains no evidence that she remains of interest to
any political group due to her family’s prior political activity.

    In response to DHS’ appeal, the respondent asserts that the Immigration
Judge properly found the presumption of future persecution unrebutted
because continued uncontrolled gang violence in Haiti is demonstrative of
the same ideology as that of the former Lavalas regime, now reflected in the
Haitian Tet Kale Party, which the respondent opposes. The respondent
contends that although the Lavalas party is no longer formally in power, the
gangs’ political alliance and targeting of perceived opponents demonstrate
that her fear remains on account of her political opinion, and that the Haitian
Government is unable or unwilling to control them.

    The record, however, does not support the respondent’s claim that her
current fear arises from her political affiliation or that the gang violence in
Haiti is politically motivated toward individuals similarly situated to her.
The Immigration Judge did not clearly err in finding widespread gang
violence in Haiti. See 

(d)(3)(i) (2026). The Immigration
Judge’s decision, however, does not find that this gang violence is linked to
political affiliation. The respondent herself testified that the gangs target
individuals indiscriminately and not for political reasons. The respondent
further testified that the current gangs are not affiliated with the Lavalas party
and that her political opinion is not the reason she fears harm from gangs.

2
    Although DHS challenges the Immigration Judge’s finding that the respondent’s
testimony was credible, we need not address this argument because we agree with DHS’
alternative arguments regarding withholding of removal.
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Although the respondent expressed dissatisfaction with the current
government’s inability to control the gangs, her testimony does not establish
that any harm she fears at the hands of the gangs would be on account of an
actual or imputed political opinion.

    The Immigration Judge’s analysis improperly relied on the respondent’s
past political harm to bridge the nexus gap to current conditions without
evidence of a continued political motive. Where a presumption of a future
threat to life or freedom applies, an Immigration Judge cannot rely on
generalized crime and widespread violence unrelated to the original claim to
find the presumption has not been rebutted, particularly where other evidence
suggests a fundamental change in circumstances such that a respondent will
no longer be harmed on account of a protected ground. As discussed above,
there has been a fundamental change in circumstances in Haiti since the
respondent’s past persecution. While the record describes a catastrophic
security situation in Haiti driven by criminal gangs and institutional collapse,
it does not demonstrate politically motivated targeting of individuals
similarly situated to the respondent, nor does it link current gang activity to
the ideology or objectives of the former Lavalas regime. Overall, the record
does not show a concrete connection between the political events that caused
the respondent’s family harm in 1999 and 2000 and the generalized gang
violence currently occurring in Haiti.

    The respondent has also not demonstrated a clear probability of future
harm independent of her past persecution. “In order to demonstrate a
sufficient connection between future persecution and [a] protected activity,
an alien is required ‘to present specific, detailed facts showing a good reason
to fear that he or she will be singled out for persecution on account’ of such
a protected activity.” Forgue v. U.S. Att’y Gen., 

(11th Cir. 2005) (citation omitted). Although the Immigration Judge relied
heavily on country conditions reports describing widespread violence and
political instability in Haiti, those reports do not establish that the respondent
would be singled out for harm on account of a protected ground. See
Matter of M-E-V-G-, 

 (BIA 2014) (finding asylum and
refugee laws do not protect people from general violent or criminal
conditions).

    The Immigration Judge also clearly erred in finding that the respondent
lacks significant connections to Haiti. See 

(d)(3)(i). The
record reflects that the respondent’s mother continues to reside in Haiti and,
despite the ongoing instability, has not been harmed. The continued safety
of similarly situated family members further undermines the respondent’s
claim that she faces a clear probability of future persecution on account of a
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protected ground. See Ruiz v. U.S. Att’y Gen., 

(11th Cir. 2006) (noting that evidence that an alien’s family remains
unharmed in the country of removal undermines his claim of future
persecution); Matter of A-E-M-, 

 (BIA 1998) (same).

    For the foregoing reasons, we conclude that the respondent has not
established eligibility for withholding of removal. The record demonstrates
a fundamental change in circumstances rebutting the presumption of a future
threat to life or freedom. The evidence of generalized crime, violence, and
instability in Haiti also does not demonstrate that the respondent faces a clear
probability of future persecution on account of a protected ground.

                         B. Particularly Serious Crime

   In the alternative, we conclude that, contrary to the Immigration Judge’s
determination, the respondent’s conviction for Conspiracy to Commit
Access Device Fraud in violation of 

(b)(2) constitutes a
particularly serious crime rendering her statutorily ineligible for withholding
of removal. INA § 241(b)(3)(B)(ii), 

(b)(3)(B)(ii). We
review de novo whether a conviction is for a particularly serious crime. See
Matter of R-A-M-, 

 (BIA 2012).

    The respondent’s conviction under subsection (b)(2) criminalizes being a
party to a conspiracy to commit an offense under subsection (a) of 

. The record of conviction establishes that the respondent pled guilty
to conspiring to violate 

(a)(2) and (3). Subsection (a)(2)
criminalizes knowingly and with intent to defraud trafficking in or using one
or more unauthorized access devices to obtain $1,000 or more during a 1-year
period. 

(a)(2). Subsection (a)(3) criminalizes knowingly
and with intent to defraud possessing 15 or more counterfeit or unauthorized
access devices. 

(a)(3).

    Although the parties do not dispute that the respondent’s conviction is for
an aggravated felony, her conviction is not per se particularly serious because
she was not sentenced to an aggregate term of imprisonment of at least
5 years. See INA § 241(b)(3)(B), 

(b)(3)(B). Thus, we apply
the framework provided in Matter of N-A-M-, 

(BIA 2007), aff’d, 

 (10th Cir. 2009), to determine whether her
crime is particularly serious. See Matter of E-A-S-O-, 

,
425–27 (BIA 2026). Here, the nature of the respondent’s conviction, which
involves conspiring, through fraud, to obtain money through the use of
unauthorized access devices, brings it within the ambit of a particularly
serious crime. See Matter of F-R-A-, 

 (BIA 2022)
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(holding that a conviction which involves attempting or conspiring to obtain
money or property through fraud is within the ambit of a particularly serious
crime).

    The Immigration Judge erred in determining that the facts and
circumstances of the respondent’s conviction did not indicate that the crime
was particularly serious. The Immigration Judge provided only two facts
that apparently mitigated the seriousness of the crime. First, he cited the
respondent’s cooperation with the United States Government in the
prosecution of her codefendant.          However, “cooperation with law
enforcement authorities” is a factor “subsequent and unrelated to the
commission of the offense,” which “may operate to reduce a sentence but
do[es] not diminish the gravity of a crime.” Matter of N-A-M-, 

 (noting that for these reasons, “the sentence imposed is not the most
accurate or salient factor to consider in determining the seriousness of an
offense”).

    Second, he noted that the respondent claimed she was not certain of her
coconspirator’s intentions in obtaining the information. This is flatly
inconsistent with the respondent’s conspiracy conviction, which required
that she conspire to act “knowingly and with intent to defraud.” 

(a)(2)–(3). “An alien convicted of a crime ‘must be considered guilty
of the crime.’” Matter of Garcia-Flores, 

 (BIA 2025)
(quoting Matter of Mendez, 

 (BIA 1996)). As specific
criminal intent is an essential element of the respondent’s crime, the
Immigration Judge should not have considered the respondent’s claim of
ignorance or innocence as a factor militating against the seriousness of her
crime. See 

 Ultimately, the Immigration Judge erred by finding the
respondent’s crime not particularly serious based solely on her cooperation
with law enforcement and a self-exculpatory statement.

    Properly considered, the nature, facts, and circumstances of the
respondent’s crime indicate that it was particularly serious. The crime
involved the abuse of the respondent’s position as an insurance sales agent,
through which she obtained a program to steal the personal identifying
information of numerous individuals. She then provided that information to
a coconspirator who used it to steal money from those individuals. This
prolonged and sophisticated scheme involved an intended loss amount of
between $3.5 million and $9 million. In her plea agreement, the respondent
agreed to a forfeiture money judgment in the amount of $38,500, which was
the total amount of proceeds deposited in her financial accounts that were
traceable to the fraudulent scheme. She was sentenced to 4 years of probation
and held jointly and severally liable for restitution of $50,560.43.
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    Identity theft by its nature is an especially damaging method of theft.
Victims of identity theft may have “numerous unauthorized charges and
accounts made in their name,” incur “drops in their credit scores,” have “their
ability to obtain loans affected,” and often must spend “time, money, and
effort trying to mitigate their injuries, including disputing fraudulent activity,
filing police reports, and otherwise dealing with identity theft.” Equifax Inc.
Customer Data Sec. Breach Litig. v. Equifax Inc., 

, 1263–64
(11th Cir. 2021). Considering the damaging nature of identity theft, the
fraudulent intent required, the sophisticated nature of the respondent’s
scheme, the numerous victims, the intended theft of millions of dollars and
the traceable theft of $38,500, the ordered restitution of $50,560.43, and the
imposed sentence of 4 years of probation, we conclude that the respondent’s
conviction constitutes a particularly serious crime within the meaning of
section 241(b)(3)(B)(ii) of the INA, 

(b)(3)(B)(ii). See, e.g.,
Sopo v. U.S. Att’y Gen., 

, 558–59 (11th Cir. 2018)
(unpublished) (holding that the Board appropriately determined that a bank
fraud scheme resulting in individual liability of $23,534 and a 33-month
sentence was a particularly serious crime). Accordingly, even assuming that
the Immigration Judge did not err in the withholding of removal analysis, the
respondent is independently barred from withholding of removal based on
her conviction for a particularly serious crime.

                               C. Remaining Matters

   The Immigration Judge did not evaluate the respondent’s application for
protection under the regulations implementing the Convention Against
Torture (“CAT”), 3 having deemed that application moot upon the grant of
withholding of removal. Because we reverse the grant of withholding of
removal, remand is necessary for the Immigration Judge to consider CAT
protection.

    On appeal, DHS challenges the Immigration Judge’s credibility finding,
arguing that the respondent’s testimony contained material inconsistencies,
omissions, and implausibilities that were not adequately addressed by the
Immigration Judge. On remand, the Immigration Judge should make explicit
findings regarding the respondent’s credibility and address the issues
identified by DHS on appeal. The Immigration Judge should then apply such


3
   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 (2026); 

(a) (2020).
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credibility findings to his analysis of the respondent’s application for CAT
protection.

   Accordingly, DHS’s appeal will be sustained and the Immigration
Judge’s grant of withholding of removal will be vacated. The record will be
remanded to the Immigration Judge for further proceedings to include: (1)
explicit credibility findings, and (2) adjudication of the respondent’s
application for CAT protection based on the full record.

   ORDER: The appeal is sustained.
   FURTHER ORDER:              The Immigration Judge’s May 30, 2025,
decision granting withholding of removal is vacated.

   FURTHER ORDER: The record is remanded to the Immigration
Judge for further proceedings consistent with the foregoing decision and
issuance of a new decision.




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