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Cite as 30 I&N Dec. 27 (BIA 2026) 	Interim Decision #4242
Matter of S-K-E-, Respondent
Decided by Board July 28, 2026 1
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
(1) The respondent did not demonstrate that summary dismissal of the Department of
Homeland Security’s appeal was appropriate where he showed no prejudice from
electronic service.
(2) The Immigration Judge properly declined to consider documents filed after the merits
hearing when the record was left open solely for the filing of other, specified documents
and the respondent did not show prejudice from the exclusion of the late documents.
(3) The respondent did not show he was prejudiced by the Immigration Judge qualifying
the expert witness in certain areas but not others.
(4) Where the respondent was not credible and did not provide sufficient corroborating
evidence regarding his sexual orientation, he did not establish eligibility for protection
under the Convention Against Torture on that basis.
FOR THE RESPONDENT: Pro se
FOR THE DEPARTMENT OF HOMELAND SECURITY: 	Madeline Jack, Assistant
Chief Counsel
BEFORE: Board Panel: HUNSUCKER and GEMOETS, Appellate Immigration Judges;
WHITE, Temporary Appellate Immigration Judge.
HUNSUCKER, Appellate Immigration Judge:
The Department of Homeland Security (“DHS”) appeals the Immigration
Judge’s August 26, 2025, decision granting the respondent deferral of
removal under the regulations implementing the Convention Against Torture
(“CAT”).2 	The respondent, a native and citizen of Guinea, appeals the
1 	Pursuant to Order No. 7119-2026, dated September 1, 2026, the Attorney General
designated the Board’s decision in Matter of S-K-E- (BIA July 28, 2026), as precedent in
all proceedings involving the same issue or issues. See 8 C.F.R. § 1003.1(g)(3) (2026).
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

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Immigration Judge’s August 26, 2025, decision terminating his asylum status
and denying his applications for asylum and withholding of removal under
sections 208(b)(1)(A) and 241(b)(3)(A) of the Immigration and Nationality
Act 	(“INA”), 	8 	U.S.C. 	§§ 	1158(b)(1)(A), 	1231(b)(3)(A) 	(2024), 	and
adjustment of status and a waiver of inadmissibility under sections 209(b)
and 209(c) of the INA, 8 U.S.C. § 1159(b), (c) (2024). On April 10, 2026,
the respondent filed a motion for summary dismissal. DHS’ appeal will be
sustained. 	The respondent’s appeal will be dismissed, and his motion for
summary dismissal will be denied.
The respondent claims harm and a fear of future harm in Guinea from
members of society and government officials on account of his sexual
orientation and mental illnesses. 	On January 2, 2025, DHS commenced
removal proceedings against the respondent, charging him as having been
convicted of two or more crimes involving moral turpitude any time after
admission 	under 	section 	237(a)(2)(A)(ii) 	of 	the 	INA, 	8 	U.S.C.
§ 1227(a)(2)(A)(ii) (2024). 	The Immigration Judge found the respondent
credible in some aspects but not with regards to his criminal sexual conduct
conviction. 	The Immigration Judge found that the respondent’s conviction
for criminal sexual conduct in the fourth degree in violation of section
609.345, subdivision 1(d), of the Minnesota Statutes was a conviction for a
particularly serious crime. 	Based on this determination, the Immigration
Judge found that the respondent’s asylum status was terminated and he was
therefore ineligible to adjust status under section 209(b) of the INA, 8 U.S.C.
§ 1159(b). As a matter of discretion, the Immigration Judge concluded the
respondent did not merit a waiver under section 209(c) of the INA, 8 U.S.C.
§ 1159(c). 	Based on his conviction of a particularly serious crime, the
Immigration Judge also found the respondent ineligible for asylum and
withholding of removal. 	Though the Immigration Judge found that the
respondent did not establish it was more likely than not that he would be
tortured in Guinea due to his mental health, the Immigration Judge did
determine that he established he would more likely than not be tortured due
to his sexual orientation.
We first address the respondent’s motion for summary dismissal on the
grounds that DHS improperly served its Notice of Appeal from a Decision
of an Immigration Judge (Form EOIR-26) on an unrepresented respondent
through the Executive Office for Immigration Review’s electronic Courts &
Appeals 	System 	(ECAS). 	In 	certain 	circumstances, 	the 	Board 	may
force for United States Nov. 20, 1994). 8 C.F.R. §§ 1208.16(c), 1208.17 (2026); 8 C.F.R.
§ 1208.18(a) (2020).

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summarily dismiss an appeal. 	8 C.F.R. § 1003.1(d)(2)(i) (2026) (outlining
such circumstances). Assuming arguendo that DHS should have served the
respondent by mail, the respondent has not established that he was prejudiced
by this error. 	See Matter of R-C-R-, 28 I&N Dec. 74, 77 (BIA 2020) (“To
establish that his due process rights were violated, the respondent must prove
that there was a deficiency or violation and that he was prejudiced by it.”).
The respondent was put on notice of DHS’ appeal when the Board issued its
briefing schedule indicating that both parties had filed appeals. 	The
respondent could have requested a copy of DHS’ notice of appeal or
explained in his own appellate brief that he had not received a copy of DHS’
filing. The respondent did not do so. Instead, the respondent waited for the
briefing period to elapse before filing the present motion for summary
dismissal. 	Since the respondent had the opportunity to both obtain and
respond to DHS’ notice of appeal, he has not established prejudice from any
apparent service error.
In his notice of appeal, the respondent challenges the Immigration
Judge’s determinations related to his criminal conviction, the termination of
his asylum status, and his ineligibility for adjustment of status, a waiver of
inadmissibility, asylum, and withholding. For the reasons stated therein, we
adopt and affirm the Immigration Judge’s decision on these issues. 	See
Matter of Burbano, 20 I&N Dec. 872, 874 (BIA 1994); see also Bejet-Viali
Al-Jojo v. Gonzales, 424 F.3d 823, 827 (8th Cir. 2005) (favorably citing the
Board’s use of Matter of Burbano). On our review of the record, there is no
clear error of fact or error of law in the Immigration Judge’s determinations
that the respondent’s conviction for a particularly serious crime warrants the
termination 	of 	his 	asylee 	status 	and 	precludes 	him 	from 	establishing
eligibility for asylum and withholding of removal under the INA. 	Further,
the respondent’s criminal conviction demonstrates that he does not warrant
a waiver of inadmissibility in the exercise of discretion.
On appeal, the respondent also argues that the Immigration Judge erred
in her treatment of certain evidence in his proceedings. 	Specifically, the
respondent argues that the Immigration Judge erred in finding Exhibit 31,
Exhibit 33, Tab B, and Exhibit 34 untimely and therefore due no weight, and
finding that his expert, Dr. Fitzgerald, was not an expert in human rights
conditions, LGBTQ issues, and health systems in Guinea.
An Immigration Judge has broad discretion regarding whether to admit
evidence and is also given significant deference regarding the evidentiary
weight to accord any particular evidence, including testimony. 	See Matter
of D-R-, 25 I&N Dec. 445, 458 (BIA 2011), remanded on other grounds sub
nom., Radojkovic v. Holder, 599 F. App’x 646 (9th Cir. 2015). Further, an

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Immigration 	Judge 	may 	set 	reasonable 	time 	limits 	for 	the 	filing 	of
applications and related documents, and an application or document that is
not filed within the time established by the Immigration Judge may be
deemed waived. 8 C.F.R. § 1003.31(h) (2026); see also Matter of Interiano-
Rosa, 25 I&N Dec. 264, 265 (BIA 2010).
As the Immigration Judge explained in her decision, the record was left
open after the respondent’s merits hearings for the limited purpose of filing
additional criminal records. Exhibits 31, Exhibit 33, Tab B, and Exhibit 34
were not updated criminal records, but rather, additional country reports, call
logs between the respondent and others, witness affidavits, and employment
records. 	The Immigration Judge permissibly declined to consider such
filings.
Moreover, even if the Immigration Judge had erred in not accepting such
filings, the respondent has not established that he was prejudiced by such an
error. See Matter of R-C-R-, 28 I&N Dec. at 77 (explaining that to establish
a due process violation, a respondent “must prove that there was a deficiency
or violation and that he was prejudiced by it”); see also Matter of D-, 20 I&N
Dec. 827, 831 (BIA 1994) (stating that a respondent has been denied a fair
hearing “only if he has been prejudiced by some deficiency so as to deprive
him of due process”). The respondent has not indicated on appeal how these
specific pieces of evidence would materially affect the outcome of his case,
even as it relates to his eligibility for adjustment of status or a waiver of
inadmissibility. 	The record already contained multiple country conditions
reports that the Immigration Judge cited to extensively in her decision. The
record 	also 	contained 	evidence 	related 	to 	the 	respondent’s 	familial
connections 	and 	employment 	history 	which 	the 	Immigration 	Judge
considered in her discretionary analysis.
Assuming arguendo that the Immigration Judge erred in not considering
Dr. Fitzgerald as an expert in human rights conditions, LGBTQ issues, and
health systems in Guinea, the respondent has not demonstrated prejudice.
See Matter of R-C-R-, 28 I&N Dec. at 77. Nothing requires an Immigration
Judge to give special consideration to the testimony or declaration of an
expert witness. See Matter of M-A-M-Z-, 28 I&N Dec. 173, 177 (BIA 2020)
(“Expert witness testimony is evidence and so is treated the same as all
evidence in immigration proceedings, where the Immigration Judge is the
trier of fact and weighs the evidence in accordance with that role.”); Matter
of J-G-T-, 28 I&N Dec. 97, 106 (BIA 2020) (holding that an Immigration
Judge should weigh the expert testimony against contradictory evidence in
the record). “An Immigration Judge should only find an expert’s opinion to
be persuasive if there is a reliable factual or evidentiary basis for [the

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expert’s] conclusions.” Matter of J-G-T-, 28 I&N Dec. at 103. As discussed
in her decision, the Immigration Judge referenced Dr. Fitzgerald’s evidence
multiple times in making her determination about the respondent’s eligibility
for protection under the CAT, which was also considered in her assessment
of the respondent’s eligibility for other forms of relief. Based on the record
before us, the respondent has not established that he was prejudiced by not
having Dr. Fitzgerald qualified as an expert on additional topics.
DHS argues that the Immigration Judge erred in granting deferral of
removal to the respondent, as he provided insufficient corroboration for key
aspects of his case and did not establish that each step in his hypothetical
chain of events was more likely than not to happen. 	In support of its
arguments, DHS points to credibility concerns about the respondent’s
testimony about his past relationships and the Immigration Judge’s reliance
on testimony from the respondent’s expert witness.
The Immigration Judge’s credibility finding is clearly erroneous. 	The
respondent’s claim regarding his sexual orientation is not credible. 	See
Matter of Dass, 20 I&N Dec. 120, 124 (BIA 1989) (explaining that an
applicant 	must 	present 	testimony 	that 	is 	“believable, 	consistent, 	and
sufficiently detailed to provide a plausible and coherent account of the basis
for his alleged fear”). 	The respondent testified that he preferred men to
women. He further testified that he has held this interest from a young age.
However, the respondent claimed that his only past relationship with a man
was with his cellmate whom he called “Face.” 	The respondent failed to
provide any further details about this past relationship, other than it was
sexual in nature. 	The respondent’s other past relationships were all with
women. 	Further, the respondent was arrested for criminal sexual conduct
with a woman. 	Moreover, the respondent’s conflicting description of his
sexual orientation as “homosexual,” “bisexual,” and “gay,” undercuts his
claimed orientation.
The respondent also did not provide sufficient corroborating evidence
regarding his alleged sexual orientation or assault as a child. See Garland v.
Ming Dai, 593 U.S. 357, 371 (2021) (explaining that even if an agency finds
a respondent credible, it “need not find his evidence persuasive or sufficient
to meet the burden of proof”); Matter of L-A-C-, 26 I&N Dec. 516, 518 (BIA
2015) (noting the respondent’s burden to corroborate the material elements
of his claim where the evidence is reasonably obtainable, regardless of
credibility). 	Despite his testimony and declaration that he engaged in play
with other boys in high school and college, the respondent has not provided
any oral, written, or photographic evidence to corroborate his claimed sexual
orientation. 	There are no letters or affidavits from any of the respondent’s

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past claimed friends or his fraternity brothers. 	The respondent’s affidavit
indicates he went to clubs and bars to find people who were open about their
sexuality, but there is no further detail about these experiences in his
testimony, nor is there any corroborating evidence of the respondent’s time
in these locations. 	The respondent’s father, who testified in support of his
case, was unaware of the respondent’s claimed sexual orientation. 	He was
also not a witness to the respondent’s claimed harm in Guinea. 	The
respondent’s father is only aware of what happened in Guinea based on what
he was told by the respondent’s aunt.
The respondent submitted psychological reports as evidence of the harm
he suffered in Guinea and his sexual orientation. However, the findings and
conclusions in these reports are based on the respondent’s testimony to
medical and prison officials, as opposed to independent observations. 	The
only independently verified interaction the respondent has had is with a
woman as it relates to his criminal conviction. Given the respondent’s long
residence in the United States and his claimed preference for men, it is not
reasonable that the respondent has no independent corroborating evidence of
his claimed sexual orientation.
Because the respondent has not established his sexual orientation, the
Immigration Judge’s findings regarding his eligibility for protection under
the CAT on this basis must be reversed. See Fesehaye v. Holder, 607 F.3d
523, 528 (8th Cir. 2010) (expressing that a separate analysis for CAT is not
required where the claim for protection is “based on the same testimony as
that underlying the [alien’s] claims for asylum and withholding of removal”)
(citation omitted)). 	Information in the country reports or testimonial
evidence 	from 	the 	respondent’s 	expert 	witnesses 	on 	the 	treatment 	of
members of the LGBTQ community does not establish that the Guinean
Government will more likely than not torture the respondent where he has
not established his membership in such community.
ORDER: DHS’ appeal is sustained.
FURTHER ORDER: The respondent’s appeal is dismissed.
FURTHER 	ORDER: 	The 	respondent’s 	motion 	for 	summary
dismissal is denied.
FURTHER ORDER: The Immigration Judge’s decision granting the
respondent’s request for deferral of removal to Guinea under the Convention
Against Torture is vacated, and the respondent is ordered removed to Guinea.

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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
time and place required for removal by the DHS, or conspires to or takes any
action designed to prevent or hamper the respondent’s 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 (2024); 8 C.F.R. § 280.53(b)(14) (2026). Further,
any respondent that has been denied admission to, removed from, or has
departed the United States while an order of exclusion, deportation, or
removal is outstanding and thereafter enters, attempts to enter, or is at any
time found in the United States shall be fined or imprisoned not more than
2 years, or both. See INA § 276(a), 8 U.S.C. § 1326(a) (2024).