Pierre Riley v. Todd Blanche

majority opinion

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PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 22-1609

PIERRE YASSUE NASHUN RILEY,

Petitioner,

TODD BLANCHE, Acting Attorney General,

Respondent.

On Remand from the Supreme Court of the United States. (S. Ct. No. 23-1270)

Argued: December 10, 2025 Decided: July 2, 2026

Before KING, HARRIS, and QUATTLEBAUM, Circuit Judges.

Amended petition for review granted; order vacated and remanded by published opinion.

Judge Harris wrote the majority opinion, in which Judge King joined. Judge Quattlebaum

wrote a dissenting opinion.

ARGUED: Elizabeth Frances Profaci, SQUIRE PATTON BOGGS (US) LLP,

Washington, D.C., for Petitioner. Corey Leigh Farrell, UNITED STATES

DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON BRIEF: Dimitar

P. Georgiev-Remmel, Margaret L. Booz, Washington, D.C., Keith Bradley, ScheLeese

Goudy, SQUIRE PATTON BOGGS (US) LLP, Denver, Colorado, for Petitioner. Brian

Boynton, Principal Deputy Assistant Attorney General, Sabatino F. Leo, Assistant

Director, Office of Immigration Litigation, UNITED STATES DEPARTMENT OF

JUSTICE, Washington, D.C., for Respondent

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PAMELA HARRIS, Circuit Judge:

At the heart of this immigration case, returned to us on remand from the Supreme

Court, is petitioner Pierre Riley’s request for deferral of removal under the Convention

Against Torture. An Immigration Judge granted Riley that relief. But the Board of

Immigration Appeals disagreed, finding that the Immigration Judge erred in his factual

findings and that Riley’s fear of torture in Jamaica was too speculative to qualify him for

deferral of removal.

Riley petitioned this court for review of the Board’s decision, initiating what would

become a long-running dispute about our jurisdiction over Riley’s claim. We originally

dismissed Riley’s petition without considering its merits, finding we lacked jurisdiction

because the petition was untimely under 8 U.S.C. § 1252(b)(1). On certiorari review, the

Supreme Court agreed with us that Riley’s petition was untimely. But it did not agree that

§ 1252(b)(1)’s filing deadline is jurisdictional, categorizing it instead as a claimsprocessing rule. And because the government has waived enforcement of that rule in

Riley’s case, the Supreme Court held, § 1252(b)(1) does not preclude this court from

reviewing Riley’s petition.

On remand, we are presented with two questions. First, the government asks us to

dismiss Riley’s petition again for lack of jurisdiction – not because of its untimeliness, but

on a new ground not previously addressed in this litigation. We decline that request,

agreeing with Riley that he may amend his petition for review to obviate any potential

jurisdictional defect. Accordingly, we reach the second question: whether the Board of

Immigration Appeals misapplied the governing standard of review in evaluating the

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Immigration Judge’s factual findings. We conclude that the Board erred in this respect and

therefore vacate and remand for further proceedings.

Petitioner Pierre Riley was born and raised in Kingston, Jamaica. In 1995, when he

was a teenager, he came to the United States on a six-month tourist visa to live with his

father, a United States citizen. Riley overstayed his visa, and twelve years later, he was

convicted of drug and firearm offenses in federal court. When Riley was released from

prison in 2021, the Department of Homeland Security (“DHS”) took him into custody.

And on January 26, 2021, DHS issued a Final Administrative Removal Order directing that

Riley be removed to Jamaica.

Riley resisted his return to Jamaica under the Convention Against Torture, or

“CAT,” which prohibits the removal of a noncitizen to a country where it is likely he would

be tortured. Riley v. Bondi, 606 U.S. 259, 264–65 (2025). According to Riley, a powerful

Jamaican drug dealer with connections to the Jamaican government had been targeting his

family in Kingston and had murdered two of his cousins, and Riley feared that he, too,

would be killed if he were to return to Jamaica. Based on this reasonable fear of

persecution, Riley was placed in “withholding-only” proceedings, where he agreed that

deferral of removal under the CAT was the only relief for which he was eligible, given his

prior convictions.

Those proceedings evolved into the petition for review now before us. We describe

them in more detail below, when we take up the merits of Riley’s petition. In brief, the

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Immigration Judge (“IJ”) credited Riley’s testimony and granted him deferral of removal,

finding that Riley had made the requisite showing that it was more likely than not that if

removed to Jamaica, he would be tortured – killed or harmed by the drug dealer he feared

– with the acquiescence of the Jamaican police. The government appealed, and the Board

of Immigration Appeals (“BIA” or “Board”) vacated the IJ’s decision, holding that the IJ

had incorrectly assessed the factual record. In the BIA’s view, Riley’s belief that the local

drug dealer had killed his cousins and meant him harm was too speculative to support relief,

as was his concern that the police would acquiesce in the hypothesized torture.

On June 3, 2022, three days after the BIA issued its decision, Riley petitioned this

court for review. But we dismissed Riley’s petition as untimely because Riley had not filed

it within 30 days of his original removal order, issued in January 2021, as we believed 8

U.S.C. § 1252(b)(1) required. Riley v. Garland, 2024 WL 1826979, at *1–2 (4th Cir. Apr.

26, 2024) (per curiam) (“Riley I”). The Supreme Court granted certiorari and vacated our

decision, holding that § 1252(b)(1)’s filing deadline, a non-jurisdictional rule waived by

the government, did not preclude Riley’s case from proceeding on remand. Riley, 606 U.S.

at 263.

That brings us to the current appeal. Riley still seeks review of the BIA’s decision

vacating the IJ’s grant of CAT relief and ordering his removal to Jamaica. This time,

however, the parties raise a new set of threshold procedural arguments regarding a potential

jurisdictional defect in Riley’s petition and Riley’s effort to cure any defect by amendment.

And on the merits, Riley asserts that the BIA overstepped its role by conducting its own

review of the factual record, as opposed to applying the governing clear-error standard of

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review. Below, we address each issue in turn, concluding that we have jurisdiction to

review Riley’s petition as amended and agreeing with Riley on the merits.

II.

We begin with the procedural issues. To explain them properly, we will have to

describe in greater detail the history of Riley’s immigration proceedings, including our first

decision in this case and the Supreme Court’s subsequent ruling. We then turn to the

parties’ procedural arguments on remand.

In brief, the government argues that we lack jurisdiction over Riley’s petition based

on a new theory, raised in a concurrence to the Supreme Court’s decision in Riley: Riley

seeks review only of the BIA order denying CAT relief, not his original removal order, and

under the statute implementing the CAT, we may review CAT orders only “as part of the

review of a final order of removal.” Riley, 606 U.S. at 278 (Thomas, J., concurring)

(quoting Foreign Affairs Reform and Restructuring Act of 1998 (“FARRA”), Pub. L. No.

105-277, § 2242(d), 112 Stat. 2681-822, note following 8 U.S.C. § 1231). Riley disagrees.

But just in case, he also has filed a motion to amend his petition so that it does seek review

of his final order of removal. For the reasons given below, we grant Riley’s motion to

amend, curing any potential jurisdictional defect. And on that ground, we find that we may

consider the merits of Riley’s petition.

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We start with a recap of Riley’s immigration proceedings and his first petition for

review in this court. DHS issued Riley’s Final Administrative Removal Order (“FARO”)

on January 26, 2021, explaining that Riley was subject to expedited deportation because

he had been convicted of an aggravated felony. See 8 U.S.C. § 1228(b). Riley could have

petitioned our court for review of his removability at that time, see id. § 1228(b)(3), but he

did not. Instead, he sought another form of relief via withholding-only proceedings in

immigration court, where he conceded his removability and acknowledged that because of

his aggravated felony convictions, the only relief for which he was eligible was deferral of

removal under the CAT. See Moncrieffe v. Holder, 569 U.S. 184, 187 & n.1 (2013). That

relief is “country-specific”; if granted, it prohibits removal to the country designated in the

removal order (here, Jamaica), but it does not affect the validity of the underlying removal

order itself. Johnson v. Guzman Chavez, 594 U.S. 523, 536 (2021).

Riley’s withholding-only proceedings lasted for over a year. They ended on May

31, 2022 – approximately 16 months after Riley’s FARO was issued – when the BIA filed

its decision vacating the IJ’s grant of relief and ordering Riley removed to Jamaica. Three

days later, Riley filed his petition with this court, asking us to review the BIA’s decision

on his CAT claim.

In an unpublished per curiam decision, we dismissed Riley’s petition for lack of

jurisdiction. Riley I, 2024 WL 1826979, at *2. First, we deemed Riley’s petition untimely.

Petitions for review must be filed within 30 days “of the final order of removal.” 8 U.S.C.

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§ 1252(b)(1). Riley, as noted above, had filed his petition just a handful of days after the

BIA’s CAT order. But under our precedent, the “final order of removal” starting the

§ 1252(b)(1) clock was Riley’s January 26, 2021 FARO, not the more recent CAT order –

putting Riley well outside the 30-day deadline. Riley I, 2024 WL 1826979, at *2 (citing

Martinez v. Garland, 86 F.4th 561, 567 (4th Cir. 2023)). And second, again following

circuit precedent, we treated § 1252(b)(1)’s filing period as jurisdictional, which meant that

we were required to dismiss Riley’s untimely petition. Id. at *1 (citing Martinez, 86 F.4th

at 566).

The Supreme Court took up Riley’s case, vacated our decision, and remanded for

further proceedings. Riley, 606 U.S. at 263. The Court agreed with us that Riley’s petition

was untimely. Id. at 266–67. The BIA’s CAT order, the Court held, was not a “final order

of removal” within the meaning of § 1252(b)(1), so the fact that Riley filed within 30 days

of that order did not make his petition timely. Id. Instead, Riley was required to seek

review within 30 days of his FARO – issued in January 2021, over a year before the

conclusion of his withholding-only proceedings – and failed to do so. Id.

That conclusion, the Supreme Court recognized, raised “legitimate practical

concerns.” Id. at 272. As Riley’s case illustrated, withholding-only proceedings may not

conclude until months after a FARO has issued, well outside § 1252(b)(1)’s 30-day filing

period. And noncitizens like Riley, “who wish only to contest” eligibility for withholding

relief, would have no reason to seek review unless and until the BIA denied that relief – by

which point, it would be too late to file under § 1252(b)(1). Id. at 271–72. A noncitizen

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could thus be “deprived of any judicial review” of an order denying deferred removal under

the CAT. Id. at 272.

But that outcome, the Supreme Court reasoned, could be avoided. In cases like

Riley’s – cases in which the only issue is the availability of withholding relief – noncitizens

could be counseled to file petitions for review of their FAROs within 30 days of those

orders, while their withholding-only proceedings were pending. Id. And then appellate

courts could be persuaded to put those placeholder petitions into abeyance, to be taken up

only if and when withholding relief was denied. Id. At that point, “the withholding issue

[would be] ready for review” in the appellate court, preserving judicial review of decisions

like the CAT order at issue in Riley’s case. Id.; see also id. at 297 (Sotomayor, J.,

dissenting in part) (describing the “protective appeals” contemplated by the majority’s

approach).

With the timeliness issue resolved, the Supreme Court turned to the second question

presented: whether § 1252(b)(1)’s 30-day filing deadline is jurisdictional. Here, the

Supreme Court disagreed with our decision in Riley I, holding that § 1252(b)(1) is a

mandatory claims-processing rule, not a jurisdictional requirement. Id. at 273–74. As the

Court explained, that distinction was critical for Riley. Claims-processing rules, unlike

jurisdictional requirements, can be waived. Id. at 273. And here, the government had not

pressed and did not wish to press lack of timeliness as a ground for dismissal of Riley’s

petition. Id. at 277. Accordingly, that Riley’s petition was not filed within 30 days of his

FARO did not preclude review of his claim. Id.

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But for subsequent developments, we could stop there in our description of Riley.

In light of the government’s argument on remand, however, we describe briefly the

separate concurring opinion of Justice Thomas. Justice Thomas agreed that § 1252(b)(1)

presented no obstacle to Riley’s petition but suggested our court “may nevertheless lack

jurisdiction over this suit for a different reason.” Id. at 278 (Thomas, J., concurring). When

Congress passed legislation to implement the CAT, it specified that the statute did not

provide jurisdiction to consider CAT claims “except as part of the review of a final order

of removal[.]” FARRA, Pub. L. No. 105-277, § 2242(d), 112 Stat. 2681-822, note

following 8 U.S.C. § 1231. In Justice Thomas’s view, that provision, along with others

governing our review of immigration cases, leaves us without jurisdiction to consider a

CAT claim unless it is paired with a challenge to a FARO. Riley, 606 U.S. at 278–80

(Thomas, J., concurring). And because Riley’s petition seeks review only of the BIA’s

CAT order and not his original FARO, Justice Thomas concluded, we likely lack

jurisdiction over his claim. Id. at 280–81 (Thomas, J., concurring).

No other Justice joined Justice Thomas’s concurrence, and the majority opinion did

not address or refer to it. The Supreme Court vacated our decision in Riley I and remanded

the case to us for proceedings consistent with its opinion. Id. at 277.

On remand, the government has again moved to dismiss Riley’s petition for lack of

jurisdiction, this time relying on the ground set out by Justice Thomas in his Riley

concurrence. Riley disputes this reading of the relevant statutes and maintains that we have

jurisdiction to review the BIA’s CAT order regardless of whether he simultaneously seeks

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review of his FARO. But in the alternative, and to avoid any uncertainty, Riley also has

moved to amend his petition for review so that it does seek review of the January 26, 2021

FARO as well as the BIA’s CAT order.

We consider our jurisdiction over Riley’s petition de novo. Kporlor v. Holder, 597

F.3d 222, 225 (4th Cir. 2010). The government’s motion to dismiss, tracking Justice

Thomas’s Riley concurrence, raises a substantial argument, and three federal courts of

appeals have agreed that they lack jurisdiction to hear CAT claims independent of

challenges to final orders of removal. Navarrete v. Bondi, 170 F.4th 1214, 1221 (9th Cir.

2026); Hayles v. U.S. Att'y Gen., __ F.4th __, 2026 WL 1782580, at *4 (11th Cir. 2026);

Bhaktibhai-Patel v. Garland, 32 F.4th 180, 190 n.13 (2d Cir. 2022), abrogated on other

grounds by Riley v. Bondi, 606 U.S. 259 (2025). But Riley is not without

counterarguments: According to Riley, it is not CAT’s implementing statute that confers

jurisdiction over CAT orders but 8 U.S.C. § 1252(a)(4), which allows for review of a

“claim under the [CAT]” by a “petition for review,” period, with no further requirement

that the petition seek review of a removal order. And the Third Circuit recently adopted

that position, leaving us with a split of authority in the federal circuit courts. See Laureano

v. Att’y Gen. U.S., 177 F.4th 453, 459–60 (2026) (finding jurisdiction to review a CAT

claim under § 1252(a)(4) where the petitioner did not also challenge her final order of

removal).

We need not resolve this complicated question today, because we agree with Riley

that he should be permitted to amend his petition for review so that it includes within its

scope his FARO as well as the BIA’s CAT order. With one exception – which we address

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below – that is precisely the process the Supreme Court laid out in Riley to ensure judicial

review of CAT claims: Immigrants like Riley, who seek only country-specific withholding

relief, should nevertheless file protective appeals challenging their removal orders; those

appeals should be held in abeyance until withholding-only proceedings conclude; and then,

if relief is denied, that denial will be “ready for review” in the court of appeals. Riley, 606

U.S. at 271–72. In substance, that is all Riley asks to do: He wants to petition for review

of his removal order – here, by way of amendment; skip the abeyance, given that his

withholding-only proceedings have concluded; and have us rule on the merits of his CAT

claim, now “ready for review.”

Riley’s case, to be sure, presents one twist. What the Supreme Court invited in Riley

was a timely placeholder appeal – a petition for review of a FARO filed “within 30 days

after the issuance of [that order].” Id. at 272. And Riley, of course, did not file a petition

within 30 days of his January 26, 2021 FARO; he filed nothing at all until June 3, 2022,

when he sought review of the BIA’s CAT order. In another case, a lapse like that might

render unavailable the route to judicial review endorsed by the Supreme Court in Riley.

But for Riley himself, it poses no problem – because, recall, the government has waived

any timeliness objection to review of Riley’s petition. Id. at 277. And the Supreme Court

has blessed review of CAT claims in precisely that scenario, clarifying in Riley that

immigrants who “are mistaken about when a petition for review must be filed” will still be

able to obtain review of their CAT claims if the government does “what it has done in

Riley’s case, i.e., declining to press for enforcement of the 30-day filing rule.” Id. at 272.

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The government nevertheless opposes Riley’s motion to amend his petition to take

advantage of the process outlined in Riley. The problem, in the government’s view, is that

Riley does not genuinely wish to challenge his order of removal, having conceded

removability long ago, and raises no actual arguments against the validity of his removal

order. An amended petition that seeks only nominal review of Riley’s FARO and presents

no substantial challenge to that order, the government argues, cannot be used as a backdoor

to review of Riley’s CAT claim.

But as we read Riley, such nominal challenges to removal orders are exactly what

is contemplated. The Court, again, was addressing a concern that arises with respect to

noncitizens “like Riley who wish only to contest removal to their native country” – that is,

to contest only their eligibility for withholding relief, and not the validity of their

underlying removal orders. Id. at 271; see also id. at 264–65 (explaining withholding-only

proceedings). The point of the procedure outlined in Riley is to allow such noncitizens,

who may not have a basis for challenging removability, to nevertheless obtain judicial

review of their CAT claims. Id. at 271–72. All Riley requires is that they “file a petition

within 30 days after the issuance of a FARO” – a timing requirement waived in this case.

Id. at 272. There is no further requirement that they invent a challenge to a removal order

that they would otherwise forgo.

That is not surprising. Just months before it decided Riley, the Supreme Court

rejected a very similar government position – one that would have required noncitizens to

“make up” challenges to removability “in order to get jurisdiction.” Monsalvo Velázquez

v. Bondi, 604 U.S. 712, 722 (2025). At issue in that case was whether 8 U.S.C.

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§ 1252(a)(1), which provides for judicial review of final orders of removal, allows courts

to hear legal questions about removal orders if a noncitizen does not challenge removability

itself. Id. at 720–22. The government thought not. Even a noncitizen who did not believe

he had a viable case against removability, the government argued, would have to “bundle”

his legal claims with “some challenge to the Board’s conclusion that he was removable” in

order to obtain judicial review. Id. at 721–22. But the Supreme Court rejected a reading

of § 1252 that would have required noncitizens to “either adorn their judicial petitions with

a pointless challenge to their removability or forfeit the right to review altogether.” Id. at

722. On our read – and on that of the Third Circuit – Riley takes the same sensible

approach. Cf. Laureano, 177 F.4th at 458 (explaining that the procedure endorsed in Riley

“demonstrates that the Supreme Court had no doubt that courts of appeals have jurisdiction

to review withholding-only rulings independent of any substantive review of final orders

of removal” (emphasis added)).

We recognize that the Ninth Circuit, in a similar case, recently denied a noncitizen’s

request to amend his petition for review. In Navarrete v. Bondi, the Ninth Circuit first

adopted Justice Thomas’s view that a federal court of appeals lacks jurisdiction to “hear

CAT claims independent of challenges to final orders of removal,” 170 F.4th at 1221, and

then denied the petitioner leave to amend his petition to add to his CAT claim a “nominal”

challenge to his removal order, id. at 1224. Only an actual and “colorable” claim against

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removability, the Ninth Circuit held, would be sufficient to invoke its jurisdiction. Id. 1

With respect, we are not persuaded that this is the right approach here.

First, we note that Navarrete arose in a different procedural posture. Unlike Riley,

the petitioner in Navarrete was never placed in withholding-only proceedings. Id. at 1218.

And the protective-appeal process the Supreme Court laid out in Riley is expressly designed

to secure judicial review of those proceedings. 606 U.S. at 272. Perhaps for that reason,

the court in Navarrete never addressed the portion of Riley on which we rely today.

We also hesitate to adopt the Ninth Circuit’s reasoning, which relied on cases setting

out the established principle that a party cannot stake federal jurisdiction on a claim that is

“so unsubstantial as to be frivolous” or “plainly without color of merit.” Navarrete, 170

F.4th at 1224 (quoting Binderup v. Pathe Exch. Inc., 263 U.S. 291, 305–06 (1923)). Here,

it is not disputed that Riley does have a substantial and non-frivolous federal claim, as to

the denial of CAT relief. The only question is whether Congress has limited our

jurisdiction to review that substantial claim by requiring Riley to pair it with a challenge to

his FARO – and if so, what sort of challenge will suffice. On that final point, we think

Riley provides the authoritative guidance. And under Riley, noncitizens in Riley’s position

– noncitizens who wish to challenge the result of withholding-only proceedings but not

removability itself – can preserve judicial review by filing a nominal appeal of their final

Even more recently, the Eleventh Circuit followed the Ninth Circuit’s approach,

with respect to both the underlying jurisdictional issue and a motion to amend a petition

for review. See Hayles, __ F.4th __, 2026 WL 1782580, at *4–5.

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orders of removal, without also briefing meritless arguments against those orders. 2 606

U.S. at 271–72.

For the reasons given above, we grant Riley’s motion to amend his petition to

include within its scope his original FARO. See 28 U.S.C. § 1653 (allowing for

amendment of jurisdictional allegations in appellate as well as trial courts). Because that

amendment cures any potential jurisdictional defect, we deny the government’s motion to

dismiss as moot. We thus proceed, after all these years, to the merits of Riley’s CAT claim.

III.

Riley seeks review of the determination by the BIA that the IJ erred in granting him

CAT relief. According to Riley, the BIA misapplied the clear-error standard that governs

its review of an IJ’s factual findings, impermissibly engaging in its own de novo weighing

of the evidence. We agree with Riley and therefore grant his petition for review, vacate

the decision of the BIA, and remand the case for the BIA to apply the correct standard of

review. See Funez-Ortiz v. McHenry, 127 F.4th 498, 508 (4th Cir. 2025). 3

The dissent in Riley faulted the majority for a holding that required resort to a

system of protective appeals – “procedural hoops” that “serve no function” – in order to

preserve judicial review. 606 U.S. at 297 (Sotomayor, J., dissenting in part). We appreciate

the administrative difficulties of such systems, see id. at 298 (Sotomayor, J., dissenting in

part), and for practical reasons, too, we are reluctant to adopt a “colorable claim”

requirement that would make the process laid out in Riley both more confusing for

petitioners and more cumbersome for the government and the courts of appeals, which

would be left to sort through meritless removability arguments raised solely to preserve

review of CAT claims.

Because we vacate and remand for this reason, we do not address the additional

grounds on which Riley challenges the BIA’s resolution of his CAT claim. Success on any

(Continued)

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Petitioner Riley, recall, came to the United States as a teenager to live with his

citizen father, overstayed his visa, and ultimately served a prison sentence for federal drug

and firearm offenses. When he was released in 2021, he entered withholding-only

proceedings, based on his fear that removal to Jamaica would put him at risk of murder by

the “Don” who controlled his Kingston neighborhood, Andrew Hamilton.

According to what the IJ described as Riley’s “very detailed application” for CAT

relief and supporting affidavit, J.A. 130, Hamilton is a drug kingpin and gang lord who

rules over Riley’s Kingston neighborhood with an “iron fist” and the backing of Jamaican

politicians and law enforcement, J.A. 275. In 2008, Hamilton ordered the murder of one

of Riley’s cousins, then living in the United States, because the cousin refused to make

payments to Hamilton in support of his rule. When the cousin was deported to Jamaica,

Hamilton had him killed. A few years later, a different cousin was also deported to

Jamaica, where he asked local police to address the murder of his relative. The police

reported that exchange to Hamilton, who then had the second cousin killed as well. When

Hamilton learned of Riley’s release from prison in 2021, he began to threaten Riley with

death, in part to prevent Riley from retaliating against him for the murder of his cousins.

one of those claims would result in the same remand for reconsideration we enter today.

On remand, the BIA will have a chance to consider all of Riley’s arguments and make any

adjustments it deems appropriate.

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Riley’s testimony on this point was corroborated by affidavits submitted by his

mother and sister, both of whom live in Jamaica and reported receiving multiple messages

and phone calls from unknown individuals when Riley was released from prison, stating

that they had “orders to kill” Riley “if he ever sets foot in Jamaica.” J.A. 280, 284. His

sister also recounted two unknown people approaching her in person and threatening Riley.

And Riley’s mother said that one of her neighbors told her masked men appeared in the

neighborhood asking about Riley’s whereabouts.

Riley’s sister and mother also attested that their efforts to enlist the help of the police

were unavailing. Police officers told Riley’s mother that they could not help Riley because

he was not yet in Jamaica, and also that “deportees are not their concerns because [they]

are criminals” and “the police do not have time to protect criminals.” J.A. 281. Riley’s

sister was separately informed by a “police friend” that if Riley returns to Jamaica, “he is

a dead man” because the government will not protect deportees. J.A. 285.

To obtain deferral of removal under the CAT, a petitioner must show that, if

removed, it is “more likely than not that (1) he or she would be tortured (2) with the consent

or acquiescence of the government.” Funez-Ortiz, 127 F.4th at 503 (citing 8 C.F.R.

§§ 1208.16(c)(2), 1208.18(a)(1)). Harm – physical or mental – rises to the level of

“torture” only if it constitutes “severe pain or suffering,” “intentionally inflicted.” Id. at

503 n.9 (quoting 8 C.F.R. § 1208.18(a)(1)); see also Cabrera Vasquez v. Barr, 919 F.3d

218, 224 n.3 (4th Cir. 2019) (“Death threats . . . may constitute torture under the CAT.”

(citing 8 C.F.R. § 1208.18(a)(4)(iii)–(iv))). The requisite “acquiescence” can be

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established if a public official is aware of such conduct and breaches a legal responsibility

to intervene to prevent it. Funez-Ortiz, 127 F.4th at 507.

The IJ determined that Riley satisfied this demanding standard and granted deferral

of removal under the CAT. Before reaching this determination, the IJ reviewed Riley’s

“detailed affidavit,” along with the supporting affidavits from his family members and

voluminous country conditions reports submitted by Riley. J.A. 130. The IJ also held an

evidentiary hearing at which Riley testified and was cross-examined by the government,

during which the IJ, on his own account, “listened carefully to [Riley’s] testimony” and

“observed [Riley] very carefully as he was answering questions.” Id. After this “thorough

review,” the IJ found Riley’s testimony credible, based both on its consistency and on its

corroboration by independent evidence. Id. (explaining that Riley “testified in a manner

that was overall consistent with his prior statements” and that “the evidence also

independently corroborates” key elements of his account).

As to the threat of torture, the IJ found that Riley testified credibly regarding

Hamilton’s activities – Hamilton’s drug trafficking, his ties to political authorities, his

control over Riley’s Kingston neighborhood – and his role in the killings of Riley’s cousins.

Much of that testimony, the IJ found, was corroborated by independent evidence.

Hamilton’s identity, involvement with drugs, and drug-related convictions in the United

States all were confirmed. Riley’s understanding of the power Hamilton wielded in his

neighborhood was also consistent with country conditions reports about the influence of

Dons in Jamaican society. Independent evidence confirmed the killings of Riley’s cousins,

and while the death reports did not identify a culprit, Riley’s testimony about Hamilton’s

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involvement “filled in that gap.” Id. Finally, threats on Riley’s life were corroborated by

the affidavits of his relatives.

The IJ again relied on Riley’s credible testimony, as corroborated by other evidence,

to find it was more likely than not that Jamaican law enforcement would acquiesce in the

harm Riley faced. As Riley explained, the police, informed of the threats against him,

“refused to do anything.” J.A. 133. Riley’s mother reported threats on Riley’s life to the

police, but, per her affidavit, the police would not take a report, in part because deportees

like Riley “are criminals, and the police do not have time to protect criminals.” J.A. 281.

And this account, the IJ found, was consistent with the “background information” and

country conditions reports submitted by Riley, confirming the prevalence in Jamaica of

gang leaders with enough influence over the police to ensure that their crimes are not

investigated. J.A. 134.

As the IJ summed it up, Riley has been threatened by Hamilton, “who has killed

two male members of his family with the police not investigating the death[s] of the

cousins,” and who has significant “influence . . . in the neighborhood and on police.” Id.

That was enough, the IJ concluded, to show the requisite “particularized risk of torture”

with the acquiescence of the Jamaican government. Id.

The government appealed, and the BIA reversed the IJ’s grant of CAT relief. The

BIA did not disagree with any of the IJ’s legal determinations – that the harm feared by

Riley rose to the level of “torture,” for instance, or that the refusal of Jamaican police to

protect Riley from the threatened harm would amount to “acquiescence” under the CAT.

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Nor did the BIA take issue with the IJ’s credibility finding regarding Riley’s testimony.

Instead, the BIA purported to find “clear error” in the IJ’s factual findings regarding “what

is likely to happen to the applicant upon his removal to Jamaica.” J.A. 4.

In the Board’s view, the IJ’s finding of a particularized risk of torture was based on

“a speculative chain of events,” and, in particular, “speculative assertions by [Riley]

regarding Hamilton.” Id. “[O]ther than [Riley’s] testimony,” there was no evidence tying

Hamilton to the killings of Riley’s cousins or to the threats against Riley. Id. And Riley’s

testimony, the BIA observed, was “not based on first-hand knowledge.” Id. Indeed, the

BIA pointed out, it could be deduced from the date of Hamilton’s indictment in the United

States that Hamilton would have been incarcerated in this country at the time of the second

cousin’s murder in 2011. And while the IJ had found support for Riley’s claims in country

conditions reports, the BIA concluded, those reports did not mention Hamilton or indicate

that he killed Riley’s cousins.

The BIA also disagreed with the IJ’s findings on acquiescence. The BIA faulted the

IJ for relying on Riley’s mother’s affidavit: In the BIA’s view, the affidavit showed only

that the police would not investigate threats against people not currently in Jamaica, which

was not enough to demonstrate acquiescence. And the BIA again disputed the IJ’s reliance

on country conditions reports, finding that those reports did not give reason to think the

police would acquiesce in torture.

In short, the BIA “conclude[d] that [Riley’s] claim . . . [was] not supported by

sufficient objective evidence to corroborate his speculative fear of torture by Hamilton or

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that the government [would] acquiesce in his torture.” J.A. 5. On that ground, it vacated

the IJ’s grant of CAT relief and ordered Riley removed to Jamaica.

When the BIA reviews an IJ’s factual findings in a CAT case, the Board’s role is

limited to assessing whether such findings are “clearly erroneous.” 8 C.F.R.

§ 1003.1(d)(3)(i). That is a deferential standard, reflecting the “sensible understanding”

that IJs, who hear witnesses and sort evidence first-hand, are better positioned than the BIA

to make the factual determinations critical to a CAT claim: “what will happen to the

petitioner if he is removed,” and “whether [he] will be subject to future mistreatment with

the support or acquiescence of the government.” Turkson v. Holder, 667 F.3d 523, 527

(4th Cir. 2012) (first quotation); Funez-Ortiz, 127 F.4th at 504–05 (second and third

quotations) (internal quotation marks omitted). On those questions, the BIA may not

“reweigh evidence or substitute its own judgment for that of the IJ.” Funez-Ortiz, 127

F.4th at 505 (cleaned up); see 8 C.F.R. § 1003.1(d)(3)(i) (“The Board will not engage in de

novo review of findings of fact determined by an immigration judge.”).

On appeal, Riley contends that the BIA misapplied the governing clear-error

standard when it reviewed the IJ’s grant of CAT relief in his case. We review de novo

whether the BIA applied the correct standard of review. Duncan v. Barr, 919 F.3d 209,

213 (4th Cir. 2019). And as we have recognized, it is not dispositive that the BIA recited

the correct standard, as it did here; we must still consider whether the Board properly

applied that standard. See Funez-Ortiz, 127 F.4th at 507–08; F.J.A.P. v. Garland, 94 F.4th

620, 638 (7th Cir. 2024) (explaining that “[a]cknowledging the proper standard of review”

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does not “immunize the Board’s decision” and that the reviewing court must “look to the

[BIA’s] analysis” to determine whether it is indicative of de novo review), abrogated on

other grounds by Riley v. Bondi, 606 U.S. 259 (2025). Here, we see multiple indications

that, notwithstanding the BIA’s invocation of the clear-error standard, its assessment of the

facts more closely resembled de novo review.

We start with what appears to have been the BIA’s primary concern: the

“speculative” nature of Riley’s testimony that Hamilton was responsible for the killings of

his cousins. J.A. 4. It is true, as the BIA noted, that Riley’s testimony on this point was

“not based on first-hand knowledge.” Id. But the IJ recognized precisely this “gap” in

Riley’s account, as his opinion makes clear. J.A. 130. And he utilized his institutional

factfinding capacity to address the gap, pressing Riley at the hearing as to how he knew it

was Hamilton who ordered the killings. The answer was not simply, as the BIA

summarized, that Hamilton “brag[ged] about this stuff.” J.A. 5. Riley went on to explain

that taking credit for killings like those of his cousins is how Dons like Hamilton maintain

control over their neighborhoods; their terror tactics are successful precisely because they

are “not hidden.” J.A. 204. Dons “run[] th[e] community” by making clear that they are

responsible for killing those who go “against the grain,” ensuring that “[p]eople live in

fear” that they could be next. Id.

The IJ found this explanation credible and persuasive. The BIA obviously

disagreed. But it nowhere explained why the IJ’s position, entitled to deference under the

governing regulation, was illogical or implausible – the hallmarks of a clearly erroneous

finding. See Soto-Soto v. Garland, 1 F.4th 655, 660 (9th Cir. 2021) (holding, in part for

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this reason, that the BIA improperly applied de novo review to an IJ’s factual findings);

Funez-Ortiz, 127 F.4th at 507 (“When an agency adjudicator disregards credible,

significant, and unrebutted evidence, that adjudicator must offer specific, cogent reasons

for doing so.” (internal quotation marks omitted)). That failure suggests “the use of a

standard of review less deferential than clear error.” F.J.A.P., 94 F.4th at 638, 640.

So, too, does the BIA’s apparent reweighing of the evidence. In rejecting Riley’s

account as too “speculative,” the Board focused on the timing of Hamilton’s United States

indictment – which would, as the BIA reasoned, put Hamilton in a United States prison at

the time one of Riley’s cousins was killed. J.A. 4–5. But that has no meaningful bearing

on Riley’s account, which, as the BIA itself acknowledged, has Hamilton ordering the

killings of his cousins, not committing them himself. And more important for our purposes,

the Board’s independent foray into the timing of Hamilton’s indictment – at the expense

of the testimony found credible and significant by the IJ – is indicative of a de novo

weighing of the evidence, not clear-error review. See Funez-Ortiz, 127 F.4th at 507–08;

F.J.A.P., 94 F.4th at 639–40.

Finally, there are the country conditions reports. The IJ credited Riley’s account –

including his explanation for how he knew that Hamilton was behind his cousins’ killings

– in part because it was consistent with country conditions reports. Again, the BIA

disagreed, noting that “[t]he country conditions evidence does not mention Hamilton” and

does not corroborate the claim that Hamilton killed Riley’s relatives or poses a

particularized risk of harm to Riley. J.A. 5. But the BIA never addressed the purpose for

which the IJ used the country conditions reports: not to implicate Hamilton, specifically,

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but as “background information” confirming the unchecked power wielded by Dons in

Jamaica. J.A. 134. The reports, in other words, may not mention Hamilton by name, but

they depict a reality perfectly consistent with the one Riley described, lending plausibility

to his account. See F.J.A.P., 94 F.4th at 639 (discussing the use of country conditions

reports to “provide[] a backdrop to significant testimonial evidence” and support an IJ’s

“inferences” about what might happen to a CAT claimant upon removal to that country).

The Board, however, never engaged with the use to which the IJ put the country conditions

reports and never considered the portions of the reports on which the IJ relied. This, too,

suggests that the Board was according the IJ’s factual findings something less than the

deference required by clear-error review. See Funez-Ortiz, 127 F.4th at 507–08 (criticizing

the BIA’s “complete[] fail[ure] to address” evidence relied on by the IJ); Soto-Soto, 1 F.4th

at 659 (the BIA’s failure to address key findings on which an IJ based its conclusions

“strongly suggests that the BIA did not faithfully engage in clear error review”).

The BIA’s review of the IJ’s acquiescence finding suffers from the same flaws.

Here, the BIA focused primarily on the affidavit of Riley’s mother – and on one part of

that affidavit in particular. In the BIA’s view, that affidavit could not demonstrate a

likelihood of law-enforcement acquiescence “simply because” the police told Riley’s

mother that they would not investigate threats against Riley while he was living outside

Jamaica. J.A. 5. But the IJ did not find otherwise. Instead, the IJ relied on the entirety of

the affidavit, which goes on to say that when Riley’s mother pressed the point, a second

officer “went on a rant,” referring to death threats against Riley as “payback” and refusing

to offer any protection to Riley if he did return to Jamaica because “it’s not the job of [the]

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Jamaican government to protect deportees.” J.A. 281. Here again, the BIA discounted

evidence that supported the IJ’s finding in favor of a snippet of an affidavit less favorable

to that finding. In so doing, it impermissibly “reweighed the evidence and made its own

finding,” indicating, again, that it applied the wrong standard of review. Funez-Ortiz, 127

F.4th at 508; see F.J.A.P., 94 F.4th at 639–40.

The BIA concluded its opinion by holding that Riley’s testimony and supporting

evidence were insufficient to establish the requisite risk of torture with the acquiescence of

Jamaican law enforcement. But that was not the question before the Board. The only

question before the Board was whether the IJ’s contrary determination, assessed with the

appropriate deference, was clearly erroneous because the record compelled a different

result. 8 C.F.R. § 1003.1(d)(3)(i); Funez-Ortiz, 127 F.4th at 508. The BIA did not explain

why the IJ’s findings could not be reconciled with the factual record or were otherwise so

illogical that they could not be credited. Instead, it appeared to reweigh the evidence and

make its own factual findings, contrary to the governing standard of review.

We have confronted similar circumstances before. See, e.g., Funez-Ortiz, 127 F.4th

at 507–08; Turkson, 667 F.3d at 528–29. As in those cases, we vacate the BIA’s decision

and remand for reconsideration of the IJ’s decision under the correct standard of review.

See Funez-Ortiz, 127 F.4th at 508–09; Turkson, 667 F.3d at 531.

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IV.

For the foregoing reasons, we grant both Riley’s motion to amend and his amended

petition for review; vacate the decision of the BIA; and remand Riley’s deferral of removal

claim to the BIA for further proceedings consistent with this opinion.

AMENDED PETITION FOR REVIEW GRANTED;

ORDER VACATED AND REMANDED

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QUATTLEBAUM, Circuit Judge, dissenting:

I disagree with the majority on both jurisdiction and the merits. CAT orders are not

final orders of removal. And only final orders of removal are subject to review. CAT orders

cannot be reviewed independently; they can only be reviewed when raised alongside a

petition challenging a final order of removal. Riley’s petition to review his CAT order is

not part of a petition to review his removal order. So, we should dismiss this case for lack

of jurisdiction.

The majority avoids this result by granting Riley’s motion to amend his petition to

add a nominal challenge to his final order of removal. But Riley’s motion to amend does

not actually challenge his order of removal. Not even a little. To the majority, that doesn’t

matter. It reads the Supreme Court’s opinion remanding this case to allow us to pretend

Riley is challenging his order of removal when we can all see that he isn’t. I disagree. I see

nothing in the Supreme Court’s decision permitting such acrobatics. And with respect, we

should not sanction meritless petitions for review.

As to the merits of Riley’s petition, the Board of Immigration Appeals did not reweigh the evidence to second guess the Immigration Judge’s factual findings. Instead, it

properly found that the evidence produced by Riley was legally insufficient. That fits

comfortably within its role in the agency.

Respectfully, I dissent.

Pierre Riley, a native and citizen of Jamaica, last entered the United States in 1995

on a tourist visa when he was almost 16 years old. Since then, he has lived in the United

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States. Eventually, he encountered criminal problems. In 2007, a federal court in New York

convicted Riley of conspiring to distribute over 1,000 kilograms of marijuana and

possessing a firearm in furtherance of the conspiracy. The district court sentenced him to

25 years in prison. In January 2020, that same federal court granted his pro se motion for

compassionate release. He was released to ICE for the initiation of removal proceedings.

On January 26, 2021, the Department of Homeland Security issued a Final

Administrative Removal Order for Riley. The order found that Riley was not a United

States citizen and was a deportable aggravated felon. The order directed that Riley be

removed from the United States to Jamaica and also found that Riley was ineligible for any

relief from removal that could be granted within the Department’s discretion. But Riley

requested withholding or deferral of removal to Jamaica based on a fear of torture or

persecution in Jamaica. So, he was referred to the asylum office for a reasonable fear

interview. The asylum officer found Riley credible but ultimately determined that he had

not established a reasonable fear of persecution or torture. Unsatisfied, Riley asked an

immigration judge to review the reasonable fear determination. He applied for withholding

of removal under both the Immigration and Naturalization Act and CAT and for deferral

of removal under CAT. On July 27, 2021, an immigration judge held a withholding-only

hearing on his claim since his removability was uncontested and the conviction undisputed.

At the hearing, Riley testified that Andrew Hamilton, a gang leader and drug kingpin

in his former neighborhood in Jamaica, would torture him upon his return to Jamaica

because Hamilton saw him as a potential threat. He testified that Hamilton killed two of

his cousins and sent death threats to his mother and sister. Riley also submitted affidavits

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from relatives and information about country conditions in Jamaica. The Immigration

Judge credited Riley’s testimony that he believed the police would not stop Hamilton and

took note of his evidence of conditions in Jamaica. As a result, the judge found that Riley

had met his burden of showing that if returned to Jamaica, Hamilton would torture him

with the acquiescence of the governing authorities. So, the Immigration Judge granted

Riley deferral of removal under CAT. At the hearing, the judge ordered that Riley be

removed to Jamaica; denied his application for statutory withholding of removal and

withholding of removal under CAT due to his having committed a “particularly serious

crime” 1 and granted his application for deferral of removal under CAT. J.A. 131. The

written order largely followed the same pattern, but it did not make any statement on

removal.

The Department appealed the Immigration Judge’s decision to the Board of

Immigration Appeals. The Board did not dispute the judge’s finding that Riley was

credible, but it held the factual finding that Hamilton would torture Riley if returned to

Jamaica was clearly erroneous. And it likewise held there was no evidentiary support for

the judge’s conclusions that, if removed, Riley had shown a particularized risk of torture

and the Jamaican government would acquiesce to that torture. Thus, the Board held that

Riley had not met his burden of showing eligibility for deferral of removal under CAT. So,

The commission of such a crime bars withholding of removal under 8

U.S.C. § 1231 and withholding of removal under CAT. 8 C.F.R. § 1208.16(d)(2)–(3).

Riley does not dispute that his conviction falls within the definition of a “particularly

serious crime.”

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the Board reversed the Immigration Judge’s determination granting deferral of removal

under CAT and ordered Riley removed from the United States to Jamaica.

Riley petitioned us for review of the Board’s decision. Relying on Martinez v.

Garland, 86 F.4th 561 (4th Cir. 2023), we dismissed the petition for lack of jurisdiction,

concluding that an order denying CAT relief is not a final order of removal and that Riley

failed to timely petition for review of a final order of removal as required by 8

U.S.C. § 1252(b)(1). Riley v. Garland, No. 22-1609, 2024 WL 1826979, at *2 (4th Cir.

Apr. 26, 2024), vacated and remanded sub nom, Riley v. Bondi, 606 U.S. 259 (2025). Also

relying on Martinez, we found § 1252(b)(1)’s 30-day requirement to be jurisdictional,

meaning Riley’s failure to petition for review within the timeframe deprived us of the

power to consider his petition. Id. After accepting certiorari, the Supreme Court confirmed

that orders denying deferral of removal in “withholding-only” proceedings are not final

orders of removal. Riley, 606 U.S. at 263. But it also held that the 30-day filing deadline is

a claims processing rule, not a jurisdictional requirement. Id. at 277. And because the

government did not wish to press timeliness as a ground for dismissal in front of the

Immigration Judge, the Court remanded the case to us for further proceedings. Id. at 276.

II.

Before addressing the issues remaining before us on remand, it’s helpful to review

our statutory framework and recent Supreme Court decisions interpreting it. The primary

statute we must consider is 8 U.S.C. § 1252.

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Subsection (a)(1) of § 1252 permits judicial review of final orders of removal.

Subsection (b)(1) says petitions to review orders of removal must be filed within 30 days

of the final order of removal. Subsection (b)(2) says that petitions for review must be filed

with the appropriate court of appeals. And subsection (b)(9) makes clear that all questions

of law and fact arising from an order of removal must be consolidated into one petition for

judicial review.

Other provisions of § 1252 are also relevant. Subsection (a)(4) addresses CAT

orders. It provides that “a petition for review filed with an appropriate court of appeals . . .

shall be the sole and exclusive means for judicial review of any cause or claim under

[CAT].” 8 U.S.C. § 1252(a)(4). 2 But it does not say that CAT orders may be reviewed

independently from a final order of removal. Nor does it operate as its own grant of

jurisdiction. The jurisdictional basis for reviewing CAT orders comes from the Foreign

Affairs Reform and Restructuring Act of 1998. See Pub. L. No. 105–277, § 2242(d), 112

Stat. 2681, 2681–822 (codified at 8 U.S.C. § 1231 note). The codified note to 8

U.S.C. § 1231 explains that “nothing in this section shall be construed as providing any

court jurisdiction to consider or review claims raised under the Convention or this

section . . . except as part of the review of a final order of removal pursuant to section 242

of the Immigration and Nationality Act (8 U.S.C. 1252).” Id. (emphasis added).

The Real ID Act of 2005 codified this provision in 8 U.S.C. § 1252(a)(4).

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The Supreme Court has provided guidance on this statutory framework and how

these various provisions interact. In Nasrallah v. Barr, 590 U.S. 573 (2020), the Court

addressed “the scope of judicial review of CAT orders for those noncitizens who have

committed crimes specified in § 1252(a)(2)(C).” Id. at 576. The Court held that “in the

deportation context, a ‘final order of removal’ is a final order ‘concluding that the alien is

deportable or ordering deportation.’” Id. at 579 (quoting 8 U.S.C. § 1101(a)(47)(A)). It also

held that a CAT order isn’t a final order of removal because such an order only affects the

designated country of removal, not whether the alien is removable. Id. at 582. And because

a CAT order “does not affect the validity of the final order of removal,” the Court explained

that it “does not merge into the final order of removal” either. Id. Even so, the Court

concluded that courts of appeal can review factual challenges to a CAT order under a

deferential standard. Id. at 576. In reaching its conclusion, it noted that § 1252(a)(4)

contemplates such direct review of CAT orders and that “judicial review of CAT claims

[be] together with the review of final orders of removal.” Id. at 585. And the Court found

that neither § 1252(b)(9) nor the note to § 1231 foreclose review. Id. at 583. Those

provisions only state that such review must be in conjunction with the review of a final

order of removal. Id. 3

Justice Thomas dissented, concluding that CAT orders fell within § 1252(b)(9),

which means that “courts have no jurisdiction to review factual challenges to CAT claims

brought in the course of a criminal alien’s removal proceeding.” Id. at 591 (Thomas, J.,

dissenting).

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The Supreme Court provided additional guidance in this case before remanding it

to us. As already explained, the Court held that § 1252(b)(1)’s 30-day time limit is a claims

processing provision, not a jurisdictional requirement. Riley, 606 U.S. at 277. The Court

also reiterated Nasrallah’s holding that a CAT order isn’t a final order of removal. Id. at

269. Instead, the administrative removal order entered after Riley conceded removability

“is the final order of removal in this case.” Id. at 272. And the Court clarified that “review

of removability and withholding of removal should occur in a single appellate proceeding.”

Id. at 271.

The Court recognized some practical problems that might arise “if a removal order

becomes final before the issue of withholding-only relief is decided.” Id. It acknowledged

that some aliens might miss the 30-day deadline because CAT orders often are not issued

within 30 days of an order of removal. See id. at 271–72. And it also recognized that if an

alien petitions for review of the order of removal, that appeal may be wrapped up before

agency issues a withholding order. See id. at 271–72. But despite the practical problems,

the Court stated that we must follow “the statutory text and our precedents.” Id. at 272.

The Court then suggested that there might be ways to avoid those problems. The

Court pointed out that, “[i]n a case like this,” the government could alert the alien of the

need to petition for review within 30 days of the final removal order and could alert the

court of appeals of the pendency of a withholding-only proceeding. Id.

Justice Thomas joined the Court’s opinion in full. But he wrote separately to

question whether we have jurisdiction “to review a CAT order when the court is not

conducting that review ‘as part of the review of a final order of removal.’” Id. at 278

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(Thomas, J., concurring). As he explained, at the time of that decision, Riley had not

petitioned to review the final order of removal.

To summarize, Nasrallah and Riley tell us that a withholding-only order, such as an

order about CAT relief, is not a final order of removal under § 1252(a)(1). Those decisions,

along with the note to § 1231, make clear that federal courts have no jurisdiction to review

CAT orders on their own. To be reviewed, a CAT order must be combined with a petition

to review a final order of removal. Said differently, if an alien doesn’t petition for review

of a final order of review, he cannot later seek review of a CAT order.

With this background, I return to the question of whether we have jurisdiction. Riley

didn’t petition for review of his order of removal within 30 days of its issuance. In fact, he

conceded removability. His petition for review of the CAT order, therefore, is not part of

a challenge to the order of removal and concerns nothing about his removal order. Under

Nasrallah and Riley, this is fatal. Supreme Court precedent leaves no room for judicial

review of “a CAT order—and only a CAT order—when the petitioner does not seek review

of a final order of removal.” Riley, 606 U.S. at 281 (Thomas, J., concurring).

That’d be the end of the road for Riley had he not tried to fix this jurisdictional

problem with an 11th-hour motion to amend. But since he asks us to construe his CAT

petition to also challenge his removal order by invoking 28 U.S.C. § 1653, we must

consider whether that affects our jurisdiction.

The fact that the petition comes so late is not a problem in this case. As already

noted, Riley holds that § 1252(b)(1)’s 30-day deadline is not jurisdictional. And the

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government has agreed not to enforce the deadline. So, Riley does not have a timeliness

problem.

But he has a substantive problem. While Riley’s motion to amend asks to clarify

that his petition to review includes a challenge to his order of removal, the motion doesn’t

assert any real challenge to the removal order. Not a word. So strangely, in a motion to

amend that has nothing to do with the removal order, Riley asks us to construe his petition

to review the CAT order—which is not a final order of removal and which does not affect

the final order of removal—as a challenge to the final order of removal. Stranger still, it

contradicts Riley’s concession before the Immigration Judge that the case was only one for

deferral of removal under CAT because of Riley’s undisputed conviction.

The majority says this, “is precisely the process the Supreme Court laid out in Riley

to ensure judicial review of CAT claims.” Maj. Op. at 11. It says Riley authorized

“placeholder petitions” and that’s basically what Riley’s motion to amend is. Maj. Op. at

8. Maybe that is right. After all, before explaining that the government could alert the alien

of the need to petition for review within 30 days of the final removal order and could alert

the court of appeals of the pendency of a withholding-only proceeding, the Court said, “[i]n

a case like this.” Riley, 606 U.S. at 272.

But with respect, that’s not how I read Riley. I just don’t agree that decision permits

an alien to satisfy the jurisdictional requirement of a petition to review a final order of

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removal with a fake petition for review of a final order. 4 If the denial of CAT relief cannot

be reviewed if it’s not part of a challenge to an order of removal, an alien must actually

Monsalvo Velazquez v. Bondi, 604 U.S. 712 (2025) doesn’t permit this either.

There, a noncitizen petitioned for review of an order denying his motion to reconsider the

dismissal of his motion to reopen removal proceedings. Id. at 718. The order of removal

gave him 60 days to leave voluntarily. Id. at 720. Monsalvo moved to reopen, but there

was a dispute about whether he had done so within 60 days. Id. at 721.The government

said regardless, he didn’t challenge removability. Id. To address the timeliness of the

voluntary departure deadline filing, the Court had to first decide whether federal courts had

jurisdiction to review the order denying his motion to reconsider when Monsalvo failed to

seek judicial review after the Board entered its final order of removal. Id. The Court

concluded there was jurisdiction. Id. at 722. It concluded that Monsalvo did not have to

“bundle his question about the operation of his voluntary-departure deadline with some

challenge to the Board’s conclusion that he was removable.” Id. at 721–22. The voluntary

departure question, the Court reasoned, arose from a final order of removal that could be

reviewed under § 1252(b)(9). Id. at 722. The Court said the timing for the voluntary

departure issue was part of the order of removal. Id. So, it did not matter if Monsalvo failed

to challenge the part of the order that directed that he be removed. Id. The Court also

rejected the idea that Monsalvo should have petitioned to review his removability when he

had no grounds to do so. Id. Monsalvo, the Court said, did not have to “adorn [his] judicial

petition[] with a pointless challenge to [his] removability.” Id. This doesn’t help Riley. If

anything, Monsalvo is inconsistent with the idea of petitioning for review of an order of

removal when there are not valid grounds to secure jurisdiction.

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challenge the order of removal. 5 Without an actual challenge to removability, we have no

jurisdiction. 6

Perhaps there is a gap in the statutory framework as interpreted by the Supreme

Court. Perhaps that is what Congress intended. I have no idea. But our job is to follow the

statutes Congress enacts and precedent from the Supreme Court wherever they lead, not

validate non-challenges to final orders of removal to create a means of judicial review that

doesn’t otherwise exist. If Congress doesn’t like the results the immigration statutes

produce, it should amend them. We should not do that ourselves. 7

This also seems consistent with other provisions of the INA. 8

U.S.C. § 1182(a)(6)(C)(i) provides that “[a]ny alien who, by fraud or willfully

misrepresenting a material fact, seeks to procure (or has sought to procure or has procured)

a visa, other documentation, or admission into the United States or other benefit provided

under this chapter is inadmissible.” And 8 U.S.C. § 1158(d)(6) provides that “[i]f the

Attorney General determines that an alien has knowingly made a frivolous application for

asylum and the alien has received the notice under paragraph (4)(A), the alien shall be

permanently ineligible for any benefits under this chapter, effective as of the date of a final

determination on such application.” In the face of those provisions, it is hard to understand

how we could approve of a challenge to an order of removal in name only.

And Riley’s proposed vehicle for these efforts is also problematic. 28

U.S.C. § 1653 states that “[d]efective allegations of jurisdiction may be amended, upon

terms, in the trial or appellate courts.” 28 U.S.C. § 1653. But the statutory provision

contemplates amending “allegations of pleadings,” meaning the correction of “incorrect

statements about jurisdiction that actually exists, and not defects in the jurisdictional facts

themselves.” Newman-Green, Inc. v. Alfonzo-Larrain, 490 U.S. 826, 831 (1989). So, while

the statutory provision concerns the amending of pleadings to show jurisdiction, it does not

embrace going back in time so that a petitioner can make new choices about what it should

have asked the court for years prior.

Our sister circuits that have considered this issue are split. The Ninth Circuit sides

with my view. In Navarrete v. Bondi, 170 F.4th 1214, 1225 (9th Cir. 2026), the Ninth

Circuit held that a “petition advancing a standalone claim for review of a CAT order is not

sufficient to invoke [ ] jurisdiction under 8 U.S.C. § 1252(a)(1).” And the Ninth Circuit

(Continued)

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III.

Because I find we lack jurisdiction, I would not reach the merits of Riley’s petition.

But the majority, having concluded we have jurisdiction, grants Riley’s petition for review.

I disagree here as well.

Before explaining my disagreement, recall that, “[a]n applicant seeking CAT relief

bears the burden to prove that ‘it is more likely than not that he will be tortured if removed’

and ‘that this torture will occur at the hands of government or with the consent or

acquiescence of government.’” Nolasco v. Garland, 7 F.4th 180, 190 (4th Cir. 2021)

(quoting Martinez v. Holder, 740 F.3d 902, 913–14 (4th Cir. 2014)). “Speculative or

generalized fears of violence do not satisfy this standard.” Paredes v. Bondi, No. 24-1105,

rejected an argument Navarrete adopted that he should be “permitted to amend his petition

to add a ‘nominal’ challenge to his removal order so that his CAT claim [could] be heard,”

because Navarrete admitted that any such challenge would be “‘a red herring’ and

‘frivolous.’” Id. at 1224. The court denied his request to amend his petition as futile because

“Navarrete did not contest that he would be unable to assert anything more than a baseless

and frivolous claim.” Id. at 1225. Likewise, the Eleventh Circuit recently agreed with the

Ninth Circuit, finding no jurisdiction to consider the petition since it was not

“simultaneously reviewing a final removal order.” Hayles v. U.S. Att’y Gen., No. 24-10516,

2026 WL 1782580, at *1 (11th Cir. June 22, 2026). The Eleventh Circuit recognized that

the “Supreme Court in Riley [did not] consider[] our statutory jurisdiction, and we cannot

infer anything about jurisdiction based on that silence.” Id. at *4 (holding that “judicial

review of the denial of relief under the CAT is available only if a petition for review

challenges a final removal order”). And the court also rejected the petitioner’s argument

that his pro se petition should be read to challenge his final order of removal in addition to

the Board’s denial of CAT relief because the court is not in the business of rewriting

otherwise deficient pleadings. Id. at *5. Finally, it rejected the petitioner’s efforts to use his

briefing to fix his petition and his request for formal leave to amend. Id. In contrast, a

divided Third Circuit sides with the majority. See Laureano v. Att’y Gen. United States of

Am., --- F.4th ----, 2026 WL 1502683, at *1 (3d Cir. May 29, 2026) (finding jurisdiction to

review statutory withholding and CAT claims after Riley in a fractured opinion but denying

relief).

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2025 WL 1249367, at *6 (4th Cir. Apr. 30, 2025) (denying petition for review of a final

order of removal reversing an immigration judge’s determination on eligibility for CAT

relief).

While the Immigration Judge found that Riley met this burden, the Board found two

errors in that decision. First, it held that the Immigration Judge’s finding that Hamilton

would torture Riley if he was returned to Jamaica was based on speculative evidence.

Second, it held that the judge’s finding that the government would acquiesce was based on

legally insufficient general evidence, not evidence showing a particularized risk to Riley.

In granting Riley’s petition, the majority concludes that the Board misapplied the required

standard of review in reaching these decisions by not properly deferring to the Immigration

Judge. And had the Board properly applied the standard of review, the majority apparently

believes it might have affirmed the Immigration Judge’s decision. The majority also seems

to believe that the Board failed to sufficiently explain why it rejected credible evidence. I

disagree.

First, the majority criticizes the Board’s holding that Riley did not show a

“particularized risk of torture” since his claim was “based on speculative assertions by

[Riley] regarding Hamilton.” J.A. 4. The Board explained that Riley had no first-hand

knowledge that Hamilton killed his cousins. And while Riley did submit affidavits of

relatives who described that violence, the Board pointed out that none mentioned Hamilton.

Instead, they described threats in phone calls and inquiries about Riley’s location from

unnamed individuals. In addition, the Board pointed out that Hamilton was not even in

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Jamaica at the time of the murders. Therefore, the Board concluded that Riley’s claims

about Hamilton’s role in the murders and threats were speculative.

I see no problem with this conclusion. The Board certainly gave specific, recordbased reasons for concluding that Riley’s evidence was speculative. Since Riley had no

firsthand knowledge about anything Hamilton did and the written documentation from his

relatives didn’t mention Hamilton, the Board found there was no evidence to support the

Immigration Judge’s finding that Hamilton was the “source of various threats.” J.A. 141.

The majority insists that testimony that “Dons” like Hamilton take control of

neighborhoods using tactics like those his relatives described is enough. Maj. Op. at 21–

22. But even crediting that testimony does not provide evidence that Hamilton was the one

who actually carried out the threats. The Board’s decision to that effect doesn’t reweigh

the evidence—it finds that the evidence Riley submitted, even if credible, was legally

insufficient. Garland v. Ming Dai, 593 U.S. 357, 373 (2021) (“even credible testimony

may be…insufficient to satisfy the burden of proof”). It seems to me like the Board got it

exactly right. 8

Second, the majority rejects the Board’s holding that Riley did not show a

particularized risk of torture at the acquiescence of the Jamaican government if removed

The majority points out that Riley says Hamilton ordered, not committed, the

killings making Hamilton’s incarceration irrelevant. But even if being in jail doesn’t mean

he couldn’t have ordered the killings, it undermines the inferential chain Riley asks to be

drawn and provides the substantial evidence we look for as we consider the Board’s review

of the IJ’s factual findings. Colorado v. Bondi, 148 F.4th 182, 190 (4th Cir. 2025) (noting

that we first check de novo to ensure the Board “applied” the proper standard of review,

then, in determining whether it properly applied it, ask whether its determinations are

supported by substantial evidence).

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to that country. But the Board explained that the only evidence Riley submitted that the

government would acquiesce to any torture Hamilton carried out was “generalized

statements in the 2020 State Department Report” on government human rights abuses,

allegations of torture in police custody and insufficient action to address such abuse. J.A.

5. It noted that such country conditions evidence “does not mention Hamilton and does not

indicate the police will acquiesce in torture.” J.A. 5. And it pointed out that “[t]he mere

existence of a pattern of human rights violations in a particular country does not constitute

a sufficient ground for a finding that a person would [be] more likely than not tortured.”

J.A. 5 (citing Nolasco, 7 F.4th at 191).

I see nothing wrong with this decision either. General information about conditions

in a country is not enough. Colorado, 148 F.4th at 193 (holding an immigration judge’s

decision cannot be “based on generalized (and factually insufficient) statistics, and on [the

petitioner’s] speculation.”). In assessing that evidence, the Board did not improperly

review the Immigration Judge’s decision. Rather than reweighing the evidence, it finds that

the evidence Riley submitted, even if credible, was legally insufficient. That’s entirely

proper. “While largely deferring to [an immigration judge’s] factual determinations, [] the

[Board] can exercise its independent judgment to evaluate not only the legal significance

of the facts but also the ultimate conclusions to which those facts lead.” Turkson v. Holder,

667 F.3d 523, 527 (4th Cir. 2012); see also Huaman-Cornelio v. Bd. of Immigr. Appeals,

979 F.2d 995, 998 (4th Cir. 1992) (in reviewing for clear error, “[t]he BIA clearly has the

power to review an IJ’s findings de novo, to make its own findings even as to matters of

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credibility, and to assess the legal sufficiency of the evidence”); Funez-Ortiz v. McHenry,

127 F.4th 498, 505 (4th Cir. 2025).

The majority insists the Immigration Judge did not rely on the country conditions

evidence to establish acquiescence. Instead, it relied on it to bolster Riley’s evidence that

Dons like Hamilton carry out violence and threats to control neighborhoods. But without

having any connection to Hamilton, generalized country conditions do not provide

sufficient evidence to show Riley faced the required risk. In sum, Riley simply failed to

introduce sufficient evidence showing that Hamilton would torture him if he was removed

to Jamaica.

In fact, it seems to me that the majority, not the Board, fails to adhere to the proper

standard of review. “[W]e do not reweigh the evidence on a petition for review.” Nolasco,

7 F.4th at 191; see also Paredes, 2025 WL 1249367, at *10 (“We emphasize that our role

as a reviewing court is not to reweigh the evidence or to substitute our own views for those

of the agency; it is, instead, to ensure that the BIA acted within the bounds of the law,

applied the correct legal standards, and reached a decision supported by substantial

evidence.”). We “must uphold the BIA’s decision so long as it is ‘supported by reasonable,

substantial, and probative evidence on the record considered as a whole.’” Mulyani v.

Holder, 771 F.3d 190, 199 (4th Cir. 2014) (quoting Tassi v. Holder, 660 F.3d 710, 719 (4th

Cir. 2011)). Our only question is whether the “evidence ‘compels’ us to disagree with the

Board.” Colorado, 148 F.4th at 190 (quoting Herrera-Alcala v. Garland, 39 F.4th 233, 244

(4th Cir. 2022)) (emphasis in original). Following that standard, I would deny Riley’s

petition for review.

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IV.

As explained above, we have no jurisdiction to review Riley’s petition. As a result,

we should dismiss it. Also, the Board properly applied the standard of review in holding

that Riley did not produce legally sufficient evidence to satisfy his burden to obtain CAT

relief. With respect, I dissent.

Pierre Riley v. Todd Blanche

Authorities cited

Opinion · public domain