A Fourth Circuit Court of Appeals decision released in July 2026 has vacated the Board of Immigration Appeals’ reversal of an immigration judge’s grant of Convention Against Torture (CAT) protection, finding that the BIA misapplied the legal standard it is supposed to use when reviewing an immigration judge’s factual findings. The case, decided by Judge Thacker, reinforces a critical distinction that practitioners must argue on appeal: the BIA cannot simply disagree with an IJ’s predictive findings about torture risk—it must find clear error.
What changed
The Fourth Circuit, in a July 2, 2026 decision, addressed a case in which an immigration judge had found that a man’s fear of torture in Jamaica qualified him for deferral of removal. The BIA had appealed and reversed the IJ’s grant, apparently concluding that the risk of torture was speculative or unsupported. The Fourth Circuit vacated the BIA’s order and remanded.
The court’s holding centers on a procedural but outcome-determinative point: when reviewing an immigration judge’s factual findings—including predictive findings about what is likely to happen to an applicant upon return to a country—the BIA does not engage in fact-finding and must defer to IJ findings of fact unless they are clearly erroneous, and the BIA reviews questions of law de novo.
The Fourth Circuit found that the BIA, by reversing the IJ’s grant, had not articulated a basis for finding clear error in the IJ’s factual findings. Instead, it appeared to second-guess the IJ’s weighing of the evidence—a task forbidden under the “clearly erroneous” standard.
Why it matters
Federal appellate courts have repeatedly criticized the BIA for blurring the line between reviewing facts and reviewing law in CAT cases. In these decisions, the BIA appears to be blurring the line between questions of law and questions of fact and substituting its judgment for that of the factfinder. The circuit courts have previously criticized the BIA for this.
This decision is significant because it provides a Fourth Circuit foundation for practitioners to argue that the BIA reversals of IJ CAT grants should be vacated on appeal. When you file a petition for review to federal court challenging a BIA reversal of an IJ’s CAT grant, you now have precedent from the Fourth Circuit (which covers South Carolina, North Carolina, West Virginia, Maryland, and Virginia) that explicitly polices the BIA’s application of the clearly erroneous standard.
The practical impact: if your client’s IJ grant of CAT protection was reversed by the BIA, and the Board’s decision does not clearly articulate specific findings that were factually erroneous in an obvious or demonstrable way—rather than merely disagreeing with the IJ’s judgment—you have a viable basis for a petition for review arguing improper standard of review.
Way forward
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If you represent a client whose CAT grant was reversed: Review the BIA’s decision for language suggesting it reweighed evidence or substituted its judgment for the IJ’s, rather than identifying specific clear errors in the IJ’s factual findings (e.g., misheard testimony, a misunderstanding of the record, or a finding unsupported by any evidence in the record).
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Build a detailed record for appeal: Make a record in immigration court that particularizes the applicant’s risk of torture in their country of return, including country conditions evidence, personal vulnerability factors, and expert testimony. Courts are more likely to find clear error when the IJ’s reasoning is thorough and grounded in specific record evidence.
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Consider a petition for review: If the BIA reversed an IJ’s CAT grant without adequately explaining why the IJ’s factual findings were clearly erroneous, this Fourth Circuit decision provides a basis to petition for review in the appropriate circuit court.
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Verify the current state of law in your circuit: While this is Fourth Circuit precedent, check your own circuit’s recent decisions on BIA standard-of-review challenges in CAT cases, as other circuits (Second, Ninth, Tenth) have issued similar holdings.
Disclaimer
This article is provided for informational purposes by articles.folaform.com, a plain-English resource for immigration practitioners. It is not legal advice and does not create an attorney-client relationship. Immigration law is complex and standards of review are highly fact-specific; you should consult a licensed immigration attorney to evaluate your case. The law and agency practice can change without notice, and you should verify all information against the primary court opinion and applicable regulations before relying on it in client work.