Background
Jose Mauricio Lopez-Barrera, an alien from El Salvador, applied for asylum and sought protection under regulations implementing the Convention Against Torture. After he testified before an immigration judge in October 2023, the IJ denied relief. The Board of Immigration Appeals remanded for additional factfinding and legal analysis.
Following further IJ decisions and a second Board remand allowing Lopez-Barrera to explain inconsistencies in his accounts, the IJ denied his request to submit new evidence for lack of good cause and again denied CAT deferral. The IJ found his testimony not credible. The Board affirmed after his third appeal, and Lopez-Barrera petitioned the Fifth Circuit for review.
The Court’s Holding
The Fifth Circuit denied the petition. It held that the Board did not abuse its discretion by declining to remand for allegedly new evidence concerning El Salvador’s crackdown on gangs or by refusing to permit another amended asylum application. The court also held that it had jurisdiction to review the denial of Lopez-Barrera’s request to submit late evidence because none of 8 U.S.C. § 1252(a)(2)’s jurisdiction-stripping provisions applied. On the merits, the IJ acted within the broad discretion afforded by regulation because Lopez-Barrera had ample opportunity to submit documentary evidence.
The court further held that substantial evidence supported the adverse-credibility finding. Lopez-Barrera gave inconsistent accounts about matters central to his claimed fear of returning, including the number of gang members who approached him, an alleged incident of persecution, and an earlier imprisonment in El Salvador. The court also upheld the finding that he failed to present particularized evidence showing that he was more likely than not to be tortured with the consent or acquiescence of a Salvadoran public official. General country-conditions evidence did not establish that state actors were likely to torture him specifically.
Key Takeaways
- The Fifth Circuit held that § 1252(a)(2) did not eliminate jurisdiction to review the denial of late-filed evidence in this CAT proceeding.
- Material inconsistencies concerning the events underlying a claimed fear of torture can support an adverse-credibility determination.
- General evidence of harsh country conditions does not by itself satisfy CAT’s requirement for a particularized showing that the applicant is more likely than not to be tortured.
Why It Matters
The decision clarifies that regulatory discretion over evidentiary timing in this setting does not automatically trigger § 1252(a)(2)(B)(ii), which applies to discretionary authority specified by statute. It therefore preserves judicial review of the challenged late-evidence ruling while confirming that such rulings receive deferential abuse-of-discretion review.
The opinion also reinforces the evidentiary burden for CAT deferral: an applicant must connect country conditions and personal circumstances to a specific likelihood of torture, and credibility problems involving the core account may be decisive.