Protections Under the Convention Against Torture in Immigration Removal Proceedings

Facts of the Case

Marlon McDougall, a native citizen of Guyana who is Black, immigrated to the United States when he was seven months old as a lawful permanent resident. He had severe visual impairment and used a wheelchair because of knee and ankle injuries. He also developed psychosis as an adult.

In 2006, during an alleged psychotic episode, Mr. McDougall was arrested on the following charges: hit and run, eluding, carjacking, burglary, and two counts of assault on a police officer. He took an Alford plea and served 16 years in prison. While incarcerated, Mr. McDougall was diagnosed with schizophrenia, after which he received psychiatric treatment.

In 2022, the Department of Homeland Security charged Mr. McDougall as removable under 8 U.S.C. § 1227(a)(2)(A)(iii) (2008) related to his aggravated felony carjacking conviction. Mr. McDougall sought deferral under the Convention Against Torture (CAT). He claimed that, if he returned to Guyana, he would be persecuted by the government based on his mental illness, physical disabilities, criminal history, deportee status, and race.

Mr. McDougall testified before the immigration judge. His aunt submitted an affidavit regarding the mistreatment of criminal deportees and Black individuals in Guyana. A psychotherapist testified to the threat that individuals with mental illness in Guyana face and predicted that Mr. McDougall would be a target for mistreatment because of having a mental illness.

Mr. McDougall also submitted articles describing poor conditions in prisons and mental health facilities, reporting instances of the police killing and abusing Black people and those who are mentally ill or physically disabled, and claiming that the police turn a blind eye to the same acts committed by the public.

The immigration judge denied Mr. McDougall’s claim, concluding that he failed to demonstrate it was “more likely than not” that he would be tortured in Guyana. The judge found that Guyanese officials do not actively seek to harm those with mental illness and determined the evidence did not support government acquiescence because officials accused of wrongdoing were investigated for misconduct. The judge also concluded that evidence concerning lack of training and mental health resources in Guyana did not support the claim that police would torture Mr. McDougall because of his mental illness.

Mr. McDougall appealed to the BIA. He argued that the immigration judge focused solely on the likelihood of torture because of mental illness and neglected to consider the likelihood of torture because of disability, race, and criminal deportee status. Mr. McDougall further argued that the judge misapplied the regulatory definition of torture. The board affirmed, finding that Mr. McDougall failed to demonstrate he would be targeted and tortured because of having a mental illness.

The board found that harm inflicted by the Guyanese police was a result of insufficient awareness and training related to mental illness rather than intent to torture him. Further, the board found that the Guyanese government was taking steps to increase mental health awareness and expand access to mental health resources.

Finally, the board concluded that Mr. McDougall failed to establish that the Guyanese government would acquiesce to his torture by members of the public, as the evidence he provided established only speculative and generalized fear of harm from the public. Mr. McDougall petitioned for review with the U.S. Court of Appeals for the Fourth Circuit.

Ruling and Reasoning

The Fourth Circuit Court of Appeals granted the petition, vacated the BIA’s decision, and returned the case for further proceedings. The court noted that under the legal framework of CAT, the applicant bears the burden of establishing that it is “more likely than not” that he would be tortured if removed. Further, the court noted that, when multiple reasons for torture are asserted, adjudicators must consider all relevant evidence contributing to the cumulative probability of harm. Thus, the appeals court concluded that Mr. McDougall was entitled to protection “so long as the cumulative probability of torture by all entities, or for all reasons, exceeds 50 %.” (McDougall, p 642, citing Kouyate v. Garland, 122 F.4th 132 (4th Cir. 2024), p 142).

The Fourth Circuit ruled that the BIA abused its discretion by failing to consider Mr. McDougall’s unrebutted evidence that he would be targeted because of his race, his physical disabilities, and his status as a criminal deportee. The court noted that the BIA offered no explanation for disregarding these characteristics and that Mr. McDougall presented substantial evidence that each of the characteristics independently increased his likelihood of torture. The court emphasized that CAT regulations require adjudicators to consider the full “panoply of risk-of-torture evidence” (McDougall, p 642), including all possible sources and motives for torture, and that ignoring significant aspects of the claim constituted a reversible error. Further, even though the agency was not required to discuss every piece of evidence in the record, its decision should have reflected that it considered the applicant’s evidence and offered “a cogent, articulable basis” for setting aside relevant evidence or finding the evidence as a whole insufficient.

In response, the government highlighted two statements from the board’s decision, italicizing language that could be construed as consideration of race, disability, and criminal deportation in the BIA’s analysis. The court of appeals rejected the government’s reading, finding that, when taken in context, the statements only referred to torture related to mental illness, not to the other three risk factors.

The court concluded that the BIA failed both to aggregate all four risk factors and to recognize key evidence demonstrating increased danger for Black individuals, people with disabilities, and criminal deportees in Guyana. The appeals court noted that, because the Board fell short here, they did not need to consider Mr. McDougall’s other argument, that the lower court misapplied the definition of torture.