H-L-S-M-

page
767
Cite as 29 I&N Dec. 767 (BIA 2026) 	Interim Decision #4220
Matter of H-L-S-M-, Applicant
Decided by Board June 18, 20261
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
(1) The Immigration Judge clearly erred in finding it more likely than not the applicant
will be tortured if removed to either Mexico or Guatemala based on general country
conditions evidence and expert witness testimony about corruption while overlooking
key facts regarding the applicant’s individualized circumstances, including lack of past
torture, the passage of time since the applicant received threats, and the vague and
indirect nature of the threats.
(2) The applicant did not establish that a public official is likely to acquiesce to his torture
by gang members where the record shows elements within the government have taken
action to combat criminal organizations, even if such efforts have not been effective.
FOR THE APPLICANT: Benjamin T. Wiesinger, Esquire, Phoenix, Arizona
FOR THE DEPARTMENT OF HOMELAND SECURITY: Michael Schmitz, Counsel
BEFORE: Board Panel: HUNSUCKER and CHABAN, Appellate Immigration Judges;
WHITE, Temporary Appellate Immigration Judge.
HUNSUCKER, Appellate Immigration Judge:
The Department of Homeland Security (“DHS”) appeals the Immigration
Judge’s October 17, 2025, decision granting the applicant’s request for
deferral of removal under the regulations implementing the Convention
Against Torture (“CAT”)2 to both Guatemala and Mexico.3 The applicant, a
1 	Pursuant to Order No. 7024-2026, dated July 16, 2026, the Acting Attorney General
designated the Board’s decision in Matter of H-L-S-M- (BIA June 18, 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
force for United States Nov. 20, 1994). 8 C.F.R. §§ 1208.16(c), 1207.17 (2026); 8 C.F.R.
§ 1208.18(a) (2020).
3 	The applicant is in withholding-only proceedings due to the filing of a Notice of Referral
to the Immigration Judge (“Form I-863”) by DHS with the Immigration Court. 	See
8 C.F.R. §§ 1208.2(c)(2), 1208.31(e), 1241.8(e) (2026). The applicant conceded that he is

Cite as 29 I&N Dec. 767 (BIA 2026) 	Interim Decision #4220
page
768
native and citizen of Guatemala, opposes the appeal. 	The appeal will be
sustained.
The applicant’s claim is based on providing testimony in the United
States against members of the Latin Kings and MS-13 gangs. He claims that
he became a member of the Latin Kings gang in 2007 and that he participated
in and witnessed various criminal acts. 	In 2008, he was arrested for
possession of an unauthorized firearm and was ultimately convicted. He was
also indicted for conspiracy to participate in a racketeering enterprise under
18 U.S.C. § 1962(d). 	He provided testimony to agents of the Bureau of
Alcohol, Tobacco, Firearms, and Explosives against gang members and
testified at the trial of a Latin Kings member. 	Around this time, a member
of the Latin Kings ran into his prison cell, attempted to stab the applicant,
and threatened to kill him if he cooperated with law enforcement. 	The
applicant learned that he had been placed on the Latin Kings’ “kill on sight”
list, which was also shared with gangs such as MS-13. The applicant said he
was placed in the witness protection program in prison and upon his release
from prison. He said he was kicked out of the program after calling a friend,
which was against the security protocol. He believes that gang members are
looking for him.
Applicants seeking CAT protection must demonstrate it is more likely
than not they will be tortured by or at the instigation of or with the consent
or acquiescence of (to include the concept of “willful blindness”), a public
official or other person acting in an official capacity in the country of
removal. 8 C.F.R. §§ 1208.16(c)(2), 1208.17(a), 1208.18(a)(1). “The Board
reviews for clear error the factual findings of the Immigration Judge as to
what is likely to happen to the respondent in the future but reviews de novo
whether the harm the respondent may experience rises to the legal definition
of torture.” Matter of L-A-G-B-, 29 I&N Dec. 343, 344 (BIA 2025).
We shall reverse the Immigration Judge’s determination that the applicant
has established a likelihood of torture in Mexico and Guatemala. 	For
Guatemala, the Immigration Judge found “it is more likely than not that the
applicant will be tortured or killed by MS-13 with the acquiescence of the
Guatemalan government.” For Mexico, the Immigration Judge found “it is
more likely than not that the applicant will be tortured or killed by MS-13 or
the 	Latin 	Kings 	with 	the 	acquiescence 	of 	the 	Mexican 	government.”
However, the analysis for both focused almost exclusively on generalized
ineligible for withholding of removal and did not seek that form of relief. Therefore, that
issue is not before us.

Cite as 29 I&N Dec. 767 (BIA 2026) 	Interim Decision #4220
page
769
country conditions evidence and testimony from an expert witness about
corruption 	in 	both 	countries 	and 	overlooked 	key 	facts 	regarding 	the
applicant’s individualized circumstances. See Park v. Garland, 72 F.4th 965,
980 (9th Cir. 2023) (“Generalized evidence of violence and crime is
insufficient to establish a likelihood of torture.”); Matter of G-C-I-, 29 I&N
Dec. 176, 184 (BIA 2025) (explaining that “[g]eneralized country evidence
tells us little about the likelihood state actors will torture any particular
person” (quoting Qorane v. Barr, 919 F.3d 904, 911 (5th Cir. 2019)).
Notably, the applicant never experienced any past torture in either
Mexico or Guatemala. This lack of past torture is a significant consideration
when 	assessing 	the 	applicant’s 	risk 	of 	future 	torture. 	See 	8 	C.F.R.
§ 1208.16(c)(3)(i) (directing adjudicators to consider “[e]vidence of past
torture inflicted upon the applicant”); see also Nuru v. Gonzales, 404 F.3d
1207, 1217–18 (9th Cir. 2005) (“Past torture is the first factor we consider in
evaluating the likelihood of future torture because past conduct frequently
tells us much about how an individual or a government will behave in the
future.”).
We acknowledge that the applicant’s fear now stems from experiences
that occurred in the United States, specifically having received threats from
gang members because he cooperated with law enforcement. However, the
Immigration Judge clearly erred by failing to adequately consider aspects of
the applicant’s testimony that minimize the risk of serious future harm posed
by these threats. 	For example, the applicant testified that MS-13 gang
members have not threatened him directly since he was released from prison.
Instead, he claims MS-13 gang members indirectly blamed Latin Kings gang
members for an indictment against them on social media and said, “we’re
going to get them.” 	Such vague and indirect threats suggest a diminished
likelihood that anyone will carry them out. See Sharma v. Garland, 9 F.4th
1052, 1062–63 (9th Cir. 2021) (explaining that the context surrounding
threats is relevant and that “[t]hreats themselves are sometimes hollow”
(quoting Hoxha v. Ashcroft, 319 F.3d 1179, 1182 (9th Cir. 2003))).
The Immigration Judge also failed to consider the significant passage of
time since the applicant received threats. 	The applicant testified that he
learned he was put on a “kill on sight” list in 2009. He said he was kicked
out of a witness-protection program in February 2013. 	Despite this, the
applicant testified that he has not been attacked since 2009, when the
attempted stabbing and threat in prison occurred. He confirmed he has not
even been physically approached by gang members after leaving the witness-
protection program. 	This testimony demonstrates a lack of serious, recent
interest in the applicant and shows that the Immigration Judge’s conclusion

Cite as 29 I&N Dec. 767 (BIA 2026) 	Interim Decision #4220
page
770
that gangs are more likely than not to harm the applicant is clearly erroneous.
Matter of J-C-A-G-, 29 I&N Dec. 331, 332 (BIA 2025); see also Matter of
L-A-G-B-, 29 I&N Dec. at 346 (finding clear error in a predictive finding
where there was a “lack of evidence that anyone was or remains interested in
the respondent”).
In 	addition, 	the 	Immigration 	Judge 	clearly 	erred 	in 	weighing 	the
testimony of the expert witness. See Matter of M-A-M-Z-, 28 I&N Dec. 173,
177 (BIA 2020) (explaining that the weight given to an expert witness is a
factual question); 8 C.F.R. § 1003.1(d)(3)(i) (2026) (providing that factual
findings are reviewed under the “clearly erroneous” standard). 	Like the
Immigration 	Judge, 	we 	acknowledge 	reports 	of 	violence, 	crime, 	and
corruption in both Mexico and Guatemala. However, the applicant’s expert
witness also testified that both the Guatemalan and Mexican Governments
have taken action to combat criminal organizations within their borders.
While he stated that such efforts have not been effective, the fact that
elements within the governments have attempted to combat the issues, which
the Immigration Judge acknowledged in a summary of the testimony but did
not address in the analysis, diminishes the likelihood that any future torture
that the applicant fears would occur by, or with the consent or acquiescence
of, a public official or other person acting in an official capacity in either
country. 	See Matter of O-A-R-G-, 29 I&N Dec. 30, 36 (BIA 2025)
(“Acquiescence 	in 	the 	CAT 	context 	requires 	a 	greater 	degree 	of
governmental complicity than is required to establish a government is unable
or unwilling to protect a respondent in the asylum context.”).
After 	failing 	to 	adequately 	consider 	this 	undisputed 	evidence, 	the
Immigration Judge clearly erred in concluding it is likely the applicant will
experience torture in either Mexico or Guatemala. See Matter of L-A-G-B-,
29 I&N Dec. at 344. The applicant may face a risk of harm in either country.
However, given the indirect nature of many of his threats, the significant
passage of time without experiencing harm or physical contact from the
gangs, and the efforts both countries have taken to combat organized crime,
he has not shown it is more likely than not he will be tortured by or at the
instigation of or with the consent or acquiescence of (to include the concept
of “willful blindness”), a public official or other person acting in an official
capacity in Mexico or Guatemala. 	8 C.F.R. §§ 1208.16(c)(2), 1208.17(a),
1208.18(a)(1). 	Accordingly, we will sustain DHS’ appeal and vacate the
Immigration Judge’s order granting deferral under the CAT. 	See Matter of
L-A-G-B-, 29 I&N Dec. at 345–46 (reversing a CAT grant where the
“Immigration 	Judge’s 	predictive 	factual 	findings 	draw 	unsupported
inferences from the record and are clearly erroneous” and explaining that
remand for additional factfinding or analysis was not necessary).

Cite as 29 I&N Dec. 767 (BIA 2026) 	Interim Decision #4220
page
771
ORDER: DHS’ appeal is sustained.
FURTHER 	ORDER: 	The 	Immigration 	Judge’s 	order 	dated
October 17, 2025, is vacated.
NOTICE : 	If an applicant 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 DHS, or conspires to or takes any
action designed to prevent or hamper the applicant’s departure pursuant to
the order of removal, the applicant shall be subject to a civil monetary penalty
of up to $998 for each day the applicant is in violation. 	See INA § 274D,
8 U.S.C. § 1324d (2024); 8 C.F.R. § 280.53(b)(14) (2026). 	Further, any
applicant 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).