The Board of Immigration Appeals (BIA) of the United States established a binding precedent in a decision that emphasizes the need to present concrete and individualized evidence of the risk of torture to obtain protection against deportation under the Convention Against Torture (CAT).
The decision, identified as Matter of K-Y-V-R-, 30 I&N Dec. 203 (BIA 2026), was issued on September 10, 2026, and designated as precedent on October 27 by Order No. 7272-2026 of the Attorney General of the United States.
The resolution reaffirms that general information about violence or insecurity in a country is not sufficient, on its own, to demonstrate that a person is likely to suffer torture if deported. Judges must assess the specific circumstances of the applicant, the evidence of the danger they face, and the possibility of avoiding it through relocation within their country.
The case of a Salvadoran threatened by gangs
The decision stemmed from the case of a citizen of El Salvador who requested protection against deportation after having suffered threats and assaults from gang members who had tried to recruit him since childhood.
According to his testimony, the gang members threatened him on several occasions, threw stones at his home, and even physically assaulted him at school because he refused to join the criminal group.
The man left El Salvador in 2015 when he was 17 years old.
On January 21, 2020, a U.S. immigration judge granted him protection under the CAT, considering that he would likely be tortured if he were to return to his country.
The Department of Homeland Security (DHS) appealed that decision to the BIA, which ultimately sided with the U.S. government, revoked the protection granted, and ordered the applicant's deportation to El Salvador.
Why did the BIA deny protection against torture?
The BIA concluded that the judge's determination about the future risk of torture was speculative and not sufficiently supported by the evidence in the file.
One of the main issues was that the judge had placed considerable weight on general reports about gang violence in El Salvador, without sufficiently establishing that the individuals who threatened the applicant during his childhood remained interested in pursuing him.
The court noted that the man did not provide evidence that gang members had attempted to locate him since he left the country in 2015. There were also no records of threats, interrogations, or subsequent assaults against his family members residing in El Salvador or other close individuals.
For the BIA, the threats suffered years ago had to be examined alongside the absence of subsequent indications of persecution to determine whether there was a sufficient likelihood of torture in the event of return.
The possibility of relocating within the country
The BIA also questioned the immigration judge's assessment of the applicant's ability to relocate to another region of El Salvador to escape from their former aggressors.
The judge had considered that the man would have difficulties relocating due to his limited education, lack of work experience, and minimal family connections in the country. However, the BIA found that these assessments were not adequately supported by the record.
The court noted that the applicant had never attempted to relocate to another area within El Salvador, that he had uncles working as police officers in Salvadoran territory, and that he was an adult physically capable of working.
The possibility of internal relocation is one of the factors that must be considered when assessing the future risk of torture. It does not, by itself, serve as an absolute requirement to demonstrate that it is impossible to live in any other region of the country. Its relevance depends on individual circumstances, the source of the threat, and whether the relocation would genuinely allow for the avoidance of danger.
What does the precedent mean for other immigrants?
The designation of the decision as a precedent by the attorney general means that their legal reasoning is binding in immigration administrative procedures where the same legal issues are applicable.
The ruling is particularly significant for those seeking CAT protection due to gang threats, previous assaults, or other situations of violence in their home countries.
Reports on the general conditions of a country can be part of the evidence, but they should be evaluated alongside elements that help determine the specific risk to the applicant, such as recent threats, attempts at location, assaults against family members, or other relevant indicators.
The decision does not automatically exclude gang violence victims from CAT protection nor does it establish that internal relocation is always a viable alternative. Each application must be assessed based on the evidence and circumstances of its case.
How could this decision affect Cubans in the United States?
The precedent may also have consequences for Cubans facing deportation proceedings in the United States who seek protection under the Convention Against Torture out of fear of retaliation if they return to the island.
This includes individuals who claim to have been threatened, detained, beaten, or persecuted for political reasons. Reports of repression and human rights violations in Cuba can serve as evidence, but they must be related to the specific circumstances of the person seeking protection.
For example, a Cuban who reports threats from State Security agents could provide testimonies, medical documents, records of detentions, threatening communications, or other evidence that would allow for an assessment of the danger they would face upon returning.
The possibility of relocating to another Cuban province could also be considered, although its effectiveness in mitigating risk would depend on the specific circumstances of the case. When the reported threat comes from state authorities, it must be assessed whether the danger would still exist even after changing residence.
The ruling does not eliminate the protection against torture for Cubans nor does it authorize their automatic deportation. It reaffirms the importance of establishing personal risk through sufficient evidence.
What does protection under the Convention against Torture require?
To obtain protection under the CAT, a person must demonstrate that it is more likely than not that they will suffer torture if sent back to the country of destination. This standard requires proving a probability greater than 50%.
The regulations also require that torture be committed by a public official or another person acting in an official capacity, or that it occurs with their consent or acquiescence, including willful blindness to the acts of third parties.
These requirements existed before the decision. The precedent Matter of K-Y-V-R- does not introduce a new percentage of probability, but rather reaffirms the need to properly substantiate conclusions about future risk.
In this case, the BIA found the evidentiary shortcomings related to the risk of torture and the evaluation of internal relocation sufficient to resolve the appeal. Therefore, it did not examine whether the Salvadoran authorities would have consented to or tolerated the alleged acts of torture.
Differences between asylum and CAT protection
The protection under the Convention against Torture is distinct from asylum and the suspension of deportation known as withholding of removal under U.S. immigration law.
The asylum protects individuals who meet the legal requirements related to persecution based on race, religion, nationality, political opinion, or membership in a particular social group. Those granted asylum can apply for permanent residency after fulfilling the necessary requirements, including the period mandated by law.
The withholding of removal under immigration law prevents deportation to a country where there is established risk of persecution, but does not itself grant permanent residency.
The CAT protection prevents expulsion to a country where the person would likely suffer torture, but it does not automatically grant permanent residency or the family benefits associated with asylum. Furthermore, unlike the latter, it does not require proving that the risk is based on one of the five grounds protected by asylum law.
The ruling Matter of K-Y-V-R- specifically concerns CAT protection. In the reviewed procedure, the applicant did not challenge the previous denials of their asylum and withholding of removal applications under immigration law, so the BIA deemed those challenges to be waived.
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