970 F.3d 960
8th Cir.2020Background
- Lasu, born in Egypt and a South Sudan citizen by parentage, was admitted to the U.S. as a refugee in 2000 and later convicted of drug offenses, triggering removal proceedings.
- Lasu applied for asylum, withholding, and deferral of removal under the Convention Against Torture (CAT); the IJ denied asylum/withholding as a particularly serious crime but granted CAT deferral to South Sudan based on minority-tribe membership and country conditions.
- DHS appealed; the BIA reversed the IJ, concluding Lasu failed to show it is more likely than not that South Sudanese authorities would torture him personally or with their consent/acquiescence.
- Lasu petitioned for review; the panel addressed jurisdictional/exhaustion issues given the criminal-alien bar and the Supreme Court’s clarification in Nasrallah that factual CAT challenges remain reviewable under the substantial-evidence standard.
- The court held (1) some procedural/fact-finding complaints were unexhausted and thus not before the court, and (2) the BIA’s factual determination denying CAT relief was supported by substantial evidence because Lasu failed to show a personalized, more-likely-than-not risk of torture.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Jurisdiction / exhaustion of BIA fact-finding claims | Lasu: BIA misapplied clear-error standard and improperly fact-found; court should review. | Gov: Issues unexhausted before BIA or not properly petitioned for review; court lacks review. | Held: Lasu failed to exhaust before the BIA and did not timely petition this court on reconsideration denial; those claims are not reviewable. |
| Applicability of criminal-alien bar to CAT factual review | Lasu: criminal-alien bar should not block review of CAT factual claims. | Gov: initially relied on criminal-alien bar. | Held: Nasrallah controls—factual CAT claims are reviewable under substantial-evidence despite the criminal-alien bar. |
| Specificity and CAT specific-intent requirement | Lasu: BIA required undue specificity and conflated likelihood with the CAT specific-intent element. | Gov/BIA: BIA required evidence showing Lasu personally would be targeted; mere membership in a minority tribe is insufficient. | Held: BIA did not misstate law; its discussion addressed the individualized likelihood of torture, not the legal definition of torture. |
| Sufficiency of evidence (more-likely-than-not) | Lasu: country reports + minority status make it more likely than not he will be tortured; IJ properly deferred removal. | Gov/BIA: Record shows general ethnic violence but not that Lasu’s specific tribe or he personally is more likely than not to be tortured. | Held: Substantial evidence supports the BIA’s reversal—Lasu did not show a particularized, more-likely-than-not personal risk. |
Key Cases Cited
- Nasrallah v. Barr, 140 S. Ct. 1683 (Sup. Ct.) (factual challenges to CAT orders are reviewable under the substantial-evidence standard)
- Cherichel v. Holder, 591 F.3d 1002 (8th Cir.) (CAT requires specific intent to inflict severe pain)
- Ademo v. Lynch, 795 F.3d 823 (8th Cir.) (pattern of countrywide violations alone insufficient; need specific grounds showing individual risk)
- Jima v. Barr, 942 F.3d 468 (8th Cir.) (likelihood-of-torture finding is a factual determination reviewed for clear error by the BIA)
- Omar v. Barr, 962 F.3d 1061 (8th Cir.) (BIA must provide sufficient justification when reversing an IJ’s CAT factual finding)
- Malonga v. Mukasey, 546 F.3d 546 (8th Cir.) (standard for CAT likelihood element)
- Esenwah v. Ashcroft, 378 F.3d 763 (8th Cir.) (motions for reconsideration generate separate final orders requiring separate petitions)
- Stone v. INS, 514 U.S. 386 (Sup. Ct.) (requirement to petition for review of BIA decisions on motions to reconsider)