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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 25-1429
WARNER ODIR GUEVARA MARTINEZ,
Petitioner,
v.
TODD BLANCHE, Acting Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals.
Argued: January 29, 2026 Decided: July 7, 2026
Before WILKINSON, WYNN, and BERNER, Circuit Judges.
Petition granted in part, denied in part; order vacated and remanded by published opinion.
Judge Berner wrote the opinion, in which Judge Wynn joined. Judge Wilkinson wrote a
dissenting opinion.
ARGUED: Ariel Alyssa Rosenbaum, COVINGTON & BURLING LLP, Washington,
D.C., for Petitioner. Jesse David Lorenz, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C., for Respondent. ON BRIEF: John J. Catalfano, Nicolle
Wainer, COVINGTON & BURLING LLP, Washington, D.C., for Petitioner. Brett A.
Shumate, Assistant Attorney General, Holly M. Smith, Assistant Director, Office of
Immigration Litigation, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Respondent.
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BERNER, Circuit Judge:
Though the Executive Branch is responsible for administering our immigration
system, federal courts play an important role in ensuring that applicants for relief from
removal are afforded adequate procedural protections. This remains true even when an
applicant for relief is deemed not credible.
Warner Odir Guevara Martinez was born in El Salvador and entered the United
States without authorization. Seeking relief from removal, Guevara Martinez applied for
asylum, withholding of removal, and protection from removal under the Convention
Against Torture. Following a hearing, an immigration judge rejected all three applications.
The immigration judge first found Guevara Martinez not credible. On the claims for asylum
and withholding of removal, the immigration judge concluded that Guevara Martinez was
statutorily ineligible because he had previously been convicted of a “particularly serious
crime.” The immigration judge also denied protection under the Convention Against
Torture, finding that Guevara Martinez failed to show a sufficient likelihood that he would
be tortured if he returned to El Salvador. Guevara Martinez sought review before the Board
of Immigration Appeals, which affirmed the immigration judge’s order in full. Guevara
Martinez then petitioned for review by this court.
The immigration judge and the Board of Immigration Appeals failed to apply the
proper legal test when analyzing whether Guevara Martinez was statutorily ineligible for
asylum and withholding of removal relief because he had been convicted of a particularly
serious crime. This error compels us to remand for further proceedings. Guevera
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Martinez’s remaining arguments, however, fail. Accordingly, we grant the petition in part
and deny in part.
I. Background
Petitioner Warner Odir Guevara Martinez is a native and citizen of El Salvador. He
entered the United States without authorization in 2016. Several years later, he was placed
in removal proceedings after the Department of Homeland Security charged him with being
inadmissible. Guevara Martinez then sought relief from removal. He filed three
applications: for asylum, for withholding of removal, and for protection from removal
under the Convention Against Torture (CAT).
Asylum and withholding of removal both require an applicant to show persecution
on account of a statutorily protected status. Salgado-Sosa v. Sessions, 882 F.3d 451, 456
(4th Cir. 2018). “There are some differences: Asylum is discretionary, whereas
withholding of removal is mandatory.” Id. In line with this, the standard of proof for asylum
is less stringent, requiring an applicant to show a well-founded fear of persecution. Id. The
standard of proof for withholding of removal is higher, requiring that an applicant show a
clear probability of persecution. Id. To demonstrate entitlement to protection under the
CAT, an applicant must show that, if removed to a particular country, it is more likely than
not that he would be tortured with the consent or acquiescence of that country’s
government. Alfaro-Zelaya v. Bondi, 157 F.4th 587, 593–94 (4th Cir. 2025). All three
avenues of relief require the applicant to establish his eligibility, generally through
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submission of application forms and supporting evidence. 8 U.S.C. §§ 1158(b)(1)(B)
(asylum), 1231(b)(3)(C) (withholding of removal); 8 C.F.R. § 1208.16(c)(2) (CAT).
We begin by detailing the evidence that Guevara Martinez submitted in support of
his applications. We then summarize the legal proceedings that followed.
A. Facts Alleged in Guevara Martinez’s Declaration
Guevara Martinez submitted a declaration in support of his applications for relief.
In it, he recounts his alleged interactions with the Zetas, a Central American transnational
drug cartel. Guevara Martinez’s allegations are not simply farfetched. They can only be
described as fantastical. Yet we begin by recounting what Guevera Martinez alleges
occurred, as presented to the immigration judge.
Guevera Martinez first encountered the Zetas over fifteen years ago, while he was
still living in El Salvador. He was approached by Luis Dias, a known member of the Zetas.
Dias told Guevara Martinez that he was romantically interested in Guevara Martinez’s
sister. He also informed Guevara Martinez about a potential job opportunity in a
mechanic’s garage.
Dias invited Guevera Martinez to the garage to discuss the job. While there, Dias
briefly stepped away to take a telephone call, and Guevara Martinez explored the garage.
Guevara Martinez alleges that he “found coolers with human hearts and blood bags that
kept the hearts alive.” Parties’ Joint Appendix (J.A.) 403. He believed the “hearts were
being smuggled to the United States to be sold.” Id. Following this gruesome discovery,
Guevara Martinez turned down the job in the garage.
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Sometime later, Guevara Martinez moved from El Salvador to Guatemala. There,
he alleges that he was kidnapped by a group of Dias’s associates from the Zetas. Certain
that his kidnappers intended to kill him, Guevara Martinez began to pray. He recounts that
the kidnappers were so moved by his commitment to God that they decided to set him free.
They even gave him some money to take on his way.
After the kidnapping incident, while still in Guatemala, Guevara Martinez once
again encountered Dias and his associates. Guevara Martinez claims that he was driving a
motorcycle when Dias and the others began to chase him in a car. During the chase,
Guevera Martinez “hit a car” and as a result “flew to the other side of the car,” injuring his
knee. Id. at 405. Guevara Martinez alleges that he then attempted to escape by “enter[ing]
a house that was under construction” and “had only walls.” Id. He “climbed the walls to
escape,” but his attackers fired a “bullet [ ] through two walls and hit [him] near [his] left
calf muscle.” Id. He “kept climbing to get out of the house through the ceiling to the next
house when [he] was hit with a second bullet” in his right knee. Id. While he was
scrambling away, he fell through the ceiling of a house, which coincidentally belonged to
one of his friends. Guevara Martinez “fell down” from the ceiling and “almost [landed] on
top of [his friend’s] grandma’s bed.” Id. Guevara Martinez claims he “hid under the bed”
until Dias and his associates finally left. Id. He later sought medical treatment for the
gunshot wounds.
Years after these alleged altercations, Dias murdered Guevara Martinez’s sister,
with whom Dias had been romantically involved. Guevara Martinez believes that Dias
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“killed [his sister] because she never told [Dias] that [Guevara Martinez] had come to the
United States.” Id. at 406.
The story does not end there. Guevara Martinez asserts that, in November 2023,
“the Zetas with local criminals threw a rock through a window” of his family’s home in
Guatemala. Id. Attached to the rock was a letter threatening him and his family.
Most relevant to our discussion, Guevara Martinez also admits in his declaration
that, sometime in 2023, he was convicted of committing assault and battery against a family
member in the Commonwealth of Virginia. In describing the circumstances of the crime,
Guevera Martinez admits that a violent altercation ensued after he discovered his romantic
partner engaging in sexual activity with another man in their home. Guevara Martinez
claims that after his discovery, his romantic partner began “pressing the birth control
[device] on her arm.” Id. He “told her to stop because it looked like she was hurting herself
and put [his] arms around her to stop her.” Id. Later, the police came and arrested Guevara
Martinez.
B. Procedural History
An immigration judge (IJ) held multiple hearings on Guevara Martinez’s
applications. Guevara Martinez testified and provided further details about his alleged
encounters with Dias and the Zetas. The IJ also heard testimony from Professor Anthony
Fontes, an expert on the country conditions in El Salvador and Guatemala. Fontes described
the Zetas and how they operate in these countries. According to Fontes, the authorities in
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El Salvador and Guatemala would be unable to protect Guevara Martinez from the Zetas
should the transnational drug cartel seek to cause Guevara Martinez harm.
In addition to his declaration, Guevara Martinez submitted written materials to the
IJ in support of his application. These included medical records, police reports, and letters
of support from friends and family. In particular, the mother of Guevara Martinez’s
children submitted a letter explaining that “the same individual who killed [Guevara
Martinez’s] sister” “could [ ] target[ ]” Guevara Martinez if he returned to Guatemala. J.A.
779. Notably, she did not suggest that she or their children had been threatened by Dias or
the Zetas.
For its part, the Government questioned Guevara Martinez about his 2023
conviction for assault and battery against a family member. The Government submitted a
police report that contained officers’ notes from conversations with witnesses, including
Guevara Martinez, who described the facts surrounding the incident differently from
Guevara Martinez’s statements in his declaration. These notes say nothing about Guevara
Martinez having discovered his romantic partner with another man. Rather, the notes
indicate only that Guevara Martinez told the police at the time of the incident that he
suspected his romantic partner had been unfaithful.
The notes further indicate that Guevara Martinez’s romantic partner told the police
that “Guevara Martinez grabbed her left tricep in a forceful manner” and threatened to “rip
out” the birth control device implanted in her arm. Id. at 362. She reported that Guevara
Martinez then “grab[bed] her hair and violently threw her to the ground.” Id. The notes
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further indicate that the responding police officer observed “fresh bruising” on Guevara
Martinez’s romantic partner’s left arm. Id.
After having considered the materials submitted by Guevara Martinez and the
evidence presented during the hearing, the IJ denied Guevera Martinez all forms of relief.
The IJ first found Guevara Martinez not credible. He noted a number of Guevara
Martinez’s statements were inherently implausible, raising serious candor concerns. For
example, the IJ found Guevara Martinez’s story about having discovered beating human
hearts “outlandish.” Id. at 92. The IJ also found it “extremely unlikely that people who
would kidnap . . . someone would release their captive for any reason, much less give him
money,” particularly in light of Guevara Martinez’s other testimony regarding the
ruthlessness of Dias and his associates. Id. The same was true of Guevara Martinez’s
testimony regarding the motorcycle chase and the shootings. The IJ found it “difficult to
believe” Guevara Martinez’s assertion that “he climbed up a wall of a house from the
ground to the roof after withstanding a motorcycle crash and being shot twice, once in each
leg.” Id. Finally, in reaching his credibility determination, the IJ noted Guevara Martinez’s
testimony was inconsistent with certain statements in his declaration, particularly regarding
the dates of the medical care he allegedly received after being shot.
Next, the IJ ruled that Guevara Martinez was barred from seeking asylum or
withholding of removal because he had been convicted of a “particularly serious crime.”
In general, applicants for asylum and withholding of removal are ineligible for such relief
if, “having been convicted by a final judgment of a particularly serious crime, [they are] a
danger to the community of the United States.” 8 U.S.C. §§ 1158(b)(2)(A)(ii) (asylum),
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1231(b)(3)(B)(ii) (same, with respect to withholding of removal). The IJ concluded that
Guevara Martinez’s 2023 conviction for assault and battery against a family member under
Virgina law qualified as such and thus relief could not be granted.
Finally, the IJ denied Guevera Martinez’s request for protection under the CAT. The
IJ concluded that Guevera Martinez did not meet his burden to demonstrate that it was
“more likely than not” that he would “be tortured by, at the instigation of, or with the
consent or acquiescence of public officials if he is returned to El Salvador.” J.A. 106.
Guevara Martinez timely appealed the IJ’s ruling to the Board of Immigration
Appeals (BIA). He argued that the IJ erred in finding him not credible. He also asserted
that the IJ failed to apply the correct legal test in determining that asylum and withholding
of removal was barred due to a conviction for a particularly serious crime. Finally, he
argued that the IJ’s CAT determination was erroneous because the IJ gave undue weight
to the adverse credibility finding and improperly discounted evidence of torture.
The BIA adopted and affirmed the decision of the IJ. Guevara Martinez then timely
filed this petition for review.
II. Analysis
Where, as here, the BIA adopts and affirms an immigration judge’s decision and
supplements it with its own reasoning, we review both decisions. Cordova v. Holder, 759
F.3d 332, 337 (4th Cir. 2014).
We first address the question of our jurisdiction, concluding that we may properly
review the IJ’s application of the particularly serious crime bar. Then, we hold that the IJ
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failed to properly apply controlling BIA precedent in analyzing the particularly serious
crime bar. Finally, we conclude that the IJ’s credibility determination and ruling on CAT
relief were sound. We take each of these matters in turn.
A. Jurisdiction
We begin with the threshold question of jurisdiction. Steel Co. v. Citizens for a
Better Env., 523 U.S. 83, 101 (1998). 28 U.S.C. § 1252(a)(2)(C)-(D) provides this court
with jurisdiction over the legal issues in a petition for review, including challenges to an
immigration judge’s application of the particularly serious crime bar. See Annor v.
Garland, 95 F.4th 820, 826 (4th Cir. 2024).
The Government argues that because the ultimate determination of the applicability
of the particularly serious crime bar is “an unbounded judgment call,” we are precluded
from reviewing the reasoning of the IJ. Resp. Br. at 48. Not so. Even if we held that the
ultimate determination of applicability of the particularly serious crime bar was a
“discretionary determination[ ] of the BIA are not subject to review,” we would
“[n]evertheless[ ] . . . retain jurisdiction to review . . . questions of law” de novo. Orellana
v. Bondi, 141 F.4th 560, 564 (4th Cir. 2025) (citing 8 U.S.C. § 1252(a)(2)(D)). 1 We have
1
This case, like Annor, does not require us to review the agency’s ultimate
determination that Guevara Martinez was convicted of a particularly serious crime. 95
F.4th 826 n.2. We note that our sister circuits, applying the Supreme Court’s decision in
Guerrero-Lasprilla v. Barr, 589 U.S. 221 (2020), have generally held that that
determination is reviewable as “the application of a legal standard to undisputed or
established facts.” Id. at 225; see, e.g., Amos v. U.S. Att’y Gen., 157 F.4th 313, 323 & n.16
(Continued)
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repeatedly affirmed that we possess jurisdiction to review a legal argument that the BIA
failed to adhere to its own precedent. Annor, 95 F.4th at 826; see also Hussen v. Bondi, 135
F.4th 150, 159–160 (4th Cir. 2025). Because this is such a case, we have jurisdiction.
B. Particularly Serious Crime Bar
An applicant is ineligible for asylum and withholding of removal if, “having been
convicted by a final judgment of a particularly serious crime, [he] is a danger to the
community of the United States.” 8 U.S.C. §§ 1158(b)(2)(A)(ii), 1231(b)(3)(B)(ii). This
has come to be known as the “particularly serious crime bar.” Diahn v. Blanche, 175 F.4th
291, 302 (4th Cir. 2026). We review legal challenges to an application of the particularly
serious crime bar de novo. Annor, 95 F.4th at 826.
Some convictions are always considered particularly serious crimes. For asylum
purposes, such convictions are those classified as aggravated felonies as listed under 8
U.S.C. § 1101(a)(43). For withholding of removal purposes, such convictions include
aggravated felonies for which an applicant received an aggregate sentence of at least five
years’ incarceration. Annor, 95 F.4th at 826; 8 U.S.C. § 1231(b)(3)(B)(iv); 8 C.F.R.
§ 1208.16(d)(2)–(3). For all other offenses, however, the IJ must determine on an
individualized “case-by-case basis” whether the applicant’s conviction is sufficiently
serious so as to be considered a “particularly serious crime.” Annor, 95 F.4th at 826
(3d Cir. 2025); Kentucky v. U.S. Att’y Gen., 43 F.4th 1175, 1187 (11th Cir. 2022)
(collecting cases).
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(quoting In re B-Z-R-, 28 I & N Dec. 563, 563 (A.G. 2022)). In making this assessment,
IJs are required to apply a two-step test to ask: “(1) whether the elements of the offense
bring it within the ambit of a particularly serious crime; and if so, (2) whether the individual
facts and circumstances confirm that the offense is particularly serious.” Id. at 827 (internal
quotation marks omitted) (citing Matter of N-A-M-, 24 I & N Dec. 336 (BIA 2007)). These
steps must be taken in order, with the elements of the crime evaluated before consideration
of the facts. Id.
Guevara Martinez’s 2023 conviction for assault and battery against a family
member, pursuant to Virginia Code Section 18.2-57.2, is a misdemeanor, not an aggravated
felony, and he was sentenced to less than five years’ incarceration. See 8 U.S.C.
§§ 1101(a)(43), 1231(b)(3)(B)(iv); 8 C.F.R. § 1208.16(d)(2)–(3). The IJ was, therefore,
required to apply the individualized two-step test. Annor, 95 F.4th at 826. The IJ failed to
do so.
On the first step, the IJ did not meaningfully analyze the elements of the crime of
assault and battery against a family member under Virginia law. Instead, the IJ concluded
summarily, without reasoning, that “the elements of the offense fall within the ambit of a
particularly serious crime.” J.A. 169 (oral pronouncement); see also 101–03 (written
decision). The IJ then proceeded to step two and described the facts of Guevara Martinez’s
2023 conviction in detail. After describing these facts, the IJ concluded that “[b]ecause the
statute of conviction is a crime against a person, the elements ‘potentially bring the crime
within the ambit of a particularly serious crime.’” J.A. 102 (quoting N-A-M-, 24 I. & N.
Dec. at 343).
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Annor makes clear that such analysis cannot suffice. 95 F.4th at 827–29. In Annor,
the court vacated and remanded an order denying relief from removal because the BIA
analyzed the elements of an incorrect statute. Rather than assessing the statute under which
the petitioner was convicted, it analyzed a different statute altogether. Id. The BIA’s failure
to conduct the step one ambit determination was reversible error. This court also cited with
approval Ojo v. Garland, 25 F.4th 152 (2d Cir. 2022), in which the Second Circuit “vacated
a particularly serious crime finding where the IJ merely observed that the offense at issue
was ‘a crime against persons’ without considering its elements at all, and the BIA affirmed
that finding without further analysis.” Annor, 95 F.4th at 827 (citing Ojo, 25 F.4th at 165–
66). Similarly here, the IJ did not sufficiently explain why the elements of assault and
battery against a family member under Virginia law fall within the ambit of a particularly
serious crime: the same defect that existed in Annor and Ojo.
Even the limited analysis offered by the IJ—noting that the statute of conviction
involves a crime against a person—came too late. The IJ made this observation only after
a prolonged discussion of the particular facts of this case, contrary to the order required by
BIA precedent. Rather, BIA precedent requires the IJ to analyze each step, first elements
then facts, in sequential order. Annor, 95 F.4th at 828–29. The IJ’s swapping of steps was
improper.
“Although the BIA possesses wide latitude to make ‘particularly serious crime’
determinations under 8 U.S.C. § 1231(b)(3)(B)(ii), it must do so in accordance with its own
precedent.” Id. at 831. That did not occur here. Accordingly, we vacate the BIA’s decision
and remand for further proceedings consistent with this opinion. See Orellana, 141 F.4th
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at 566 (explaining that when an agency fails to follow its binding procedures, the “agency’s
actions are generally invalid”). The BIA may very well reach the same end conclusion: that
Guevara Martinez’s 2023 conviction for assault and battery against a family member under
Virginia law qualifies as a particularly serious crime, thus rendering him statutorily
ineligible for asylum or withholding of removal relief. In assessing Guevara Martinez’s
applications, however, it may not act contrary to law and flout its own precedents. Mouns
v. Garland, 113 F.4th 399, 412 (4th Cir. 2024).
C. Credibility Determination
Guevara Martinez also challenges the determination that he is not credible. We
review an immigration judge’s credibility determination with deference to determine
whether it was supported by substantial evidence. Hui Pan v. Holder, 737 F.3d 921, 926
(4th Cir. 2013). Thus, we ask whether the record “contains ‘sufficien[t] evidence’ to
support the agency’s factual determinations.” Biestek v. Berryhill, 587 U.S. 97, 103 (2019)
(quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). Substantial evidence
“means—and means only—‘such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.’” Id. (quoting Consol Edison Co., 305 U.S. at 229).
In making an adverse credibility determination, an immigration judge must consider
the totality of the circumstances. Hui Pan, 737 F.3d at 928. An immigration judge may
take into consideration many factors, including “the demeanor, candor, or responsiveness
of the applicant or witness,” as well as “the inherent plausibility of the applicant’s” account.
Herrera-Alcala v. Garland, 39 F.4th 233, 245 n.10 (4th Cir. 2022) (quoting 8 U.S.C.
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§ 1158(b)(1)(B)(iii)). An immigration judge must support an adverse credibility finding
with “non-speculative, ‘specific, cogent reasons.’” Hui Pan, 737 F.3d at 928 (quoting
Dankam v. Gonzalez, 495 F.3d 113, 120–21 (4th Cir. 2007)).
It is abundantly clear that the IJ’s adverse credibility determination here was
supported by substantial evidence. The IJ detailed “specific, cogent reasons” supporting its
adverse credibility finding. Hui Pan, 737 F.3d at 928 (quoting Dankam, 495 F.3d at 120–
21). Guevara Martinez argues that the adverse credibility determination improperly rested
on minor inconsistencies between his testimony and other record evidence. Not so. The IJ
catalogued specific implausible claims in Guevara Martinez’s testimony and declaration
on the basis of which a reasonable person could most certainly find Guevara Martinez not
credible. See Biestek, 587 U.S. at 103.
Guevara Martinez further contends that the IJ’s credibility determination cannot
withstand scrutiny because the IJ “violated his right to due process by failing to afford him
the opportunity to explain purported inconsistencies in his testimony.” Opening Br. at 31.
He identifies a single exchange between himself and the IJ in support. During the hearing,
the IJ asked Guevara Martinez questions, and instructed Guevara Martinez not to provide
“a detailed explanation” but rather to answer “yes or no.” J.A. 302. When Guevara
Martinez nevertheless responded with greater detail, the IJ threatened to find Guevara
Martinez “unresponsive.” J.A. 303.
“We review de novo a claim that the procedures utilized in [immigration] hearings
contravened due process or the INA.” Rusu v. I.N.S., 296 F.3d 316, 320 (4th Cir. 2002). To
succeed on such a claim, an applicant must show both a violation of his rights—that he did
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not have “the opportunity to be heard at a meaningful time and in a meaningful manner,”
id. at 321—and that there was “prejudice resulting from” the violation, id. at 324. Guevara
Martinez cannot do so here. The IJ provided Guevara Martinez with meaningful
opportunities to explain himself and to develop the factual record. We also cannot say that
this exchange prejudiced Guevara Martinez in a manner that impacted the results of the
proceedings because the IJ’s credibility determination is amply supported by the record.
Id. at 320; see also Ayala-Osegueda v. Garland, 92 F.4th 220, 236 n.11 (4th Cir. 2024). 2
Accordingly, we affirm the IJ’s adverse credibility finding.
D. Convention Against Torture
Finally, Guevera Martinez contends that the IJ erred in concluding that he was not
entitled to relief under the CAT. We review the denial of CAT relief for abuse of discretion.
McDougall v. Bondi, 150 F.4th 637, 641 (4th Cir. 2025). An immigration judge abuses his
discretion by committing a legal error, ignoring relevant evidence, or failing to offer a
reasoned explanation for his decision. Id. Moreover, we review factual findings for
2
Guevara Martinez cites Islam v. Gonzales, 469 F.3d 53 (2d Cir. 2006) in support
of his argument. In Islam, the Second Circuit explained that “when an IJ’s conduct results
in the appearance of bias or hostility such that we cannot conduct a meaningful review of
the decision below, we remand.” Id. at 55. The isolated exchange in this case is
distinguishable from the circumstances in Islam. There, an IJ analogized “Islam’s petition
for asylum to a fictional petition that Terry Nichols, the Oklahoma City bomber, might file
if he applied for asylum in Bangladesh and claimed that he was persecuted in America.”
Id. at 55 n.1 The IJ “repeatedly interrupted Islam when he spoke, did not always allow him
to explain what he meant, and sparred and argued with him[.]” Id. at 56.
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substantial evidence, including an immigration judge’s determination of what is likely to
occur if a petitioner is removed to a particular country. Id.
An applicant for CAT relief must demonstrate that it is more likely than not that he
would be tortured if removed to the proposed country of removal. Portillo Flores v.
Garland, 3 F.4th 615, 637 (4th Cir. 2021) (en banc). An applicant must further show that
the torture “will occur at the hands of government or with the consent or acquiescence of
government.” Alfaro Zelaya, 157 F.4th at 593–94 (quoting Turkson v. Holder, 667 F.3d
523, 526 (4th Cir. 2012)). Guevara Martinez asserts he is likely to be tortured in El Salvador
by Dias and the Zetas as well as the Salvadoran government. The IJ concluded that Guevara
Martinez failed to meet his burden as to these claims. In so concluding, the IJ’s factual
findings were supported by substantial evidence. There is nothing in the record to suggest
that the IJ otherwise abused his discretion.
(i) Dias and the Zetas
On the question of whether it was more likely than not that Guevara Martinez would
be tortured by Dias and the Zetas if he returned to El Salvador, the IJ noted that Guevara
Martinez had not directly encountered Dias or any of his associates for more than eleven
years. Moreover, the IJ’s credibility determination—which we have upheld—further
weakened Guevara Martinez’s claim of likely torture. The IJ’s finding that Guevara
Martinez was unlikely to be tortured by Dias and the Zetas was therefore supported by
substantial evidence.
Guevara Martinez argues that the IJ abused his discretion by failing to take into
consideration the rock with a threatening letter that had allegedly been thrown through the
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window of Guevara Martinez’s family’s home in 2023. He contends that this letter is
evidence of Dias’s continuing intent to harm him. The IJ did not ignore the letter, however.
Rather, the IJ discounted it based on specific reasons supported by the record, including
the lack of credible substantiation of the source, timing, and authenticity of the letter. The
IJ acted within his discretion in affording the letter no weight.
Guevara Martinez also argues that the IJ abused his discretion by failing to consider
the declaration and testimony of Professor Fontes, Guevara Martinez’s expert witness.
Professor Fontes explained that, although Salvadoran authorities have managed to combat
gang violence committed by groups like MS-13, such efforts have had little impact on
transnational drug cartels such as the Zetas. The IJ found Dr. Fontes credible, credited this
testimony, and noted its relevance. The IJ determined, however, that Professor Fontes’s
conclusion regarding the likelihood that Guevara Martinez himself would be tortured was
not probative because it was based upon Guevara Martinez’s own account of his encounters
with the Zetas. This was the same account the IJ found not credible. The IJ also found the
Government’s evidence regarding likelihood of torture persuasive. The IJ thus adequately
explained his conclusion and treatment of the evidence, including Professor Fontes’s expert
opinion.
(ii) The Salvadoran government
On the question of whether it was more likely than not that Guevara Martinez would
be subjected to torture by the Salvadoran government were he to return to El Salvador, the
IJ’s conclusion was also supported by substantial evidence. An applicant can meet his
burden by identifying “a hypothetical chain of events” that is more likely than not to “come
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together to result in the probability of torture.” Lopez Sorto v. Garland, 103 F.4th 242, 253
(4th Cir. 2024) (quoting In re J-F-F-, 23 I & N Dec. 912, 917–18 (A.G. 2006)). Guevara
Martinez points to the country conditions in El Salvador, explaining that the Salvadoran
government enacted a state of exception—meaning a pause of constitutional and civil
rights—and authorized security forces to conduct mass arrests of individuals with alleged
connections to gangs. Guevara Martinez argues that, in this environment, the Salvadoran
government could well mistake him for a gang member, arrest him arbitrarily, and subject
him to torture.
The IJ found that Guevara Martinez failed to establish that this hypothetical chain
of events was more likely than not to occur. This factual finding was supported by
substantial evidence. The IJ acknowledged Guevara Martinez’s evidence suggesting that
“Salvadoran society stigmatizes male deportees as suspected gang members” and
indicating that Salvadoran officials have been known to arrest such men “based on
perceived gang membership of innocent persons.” J.A. 107. The IJ concluded, however,
that “the arrest and torture of innocent people similarly situated” to Guevara Martinez “is
not so common that it will more likely than not happen to him.” J.A. 108.
Guevara Martinez has identified no error in this finding. He simply points to
contrary evidence in the record. Because the IJ thoroughly considered the record evidence
and explained the reasoning for his conclusions, the IJ acted within his discretion. See
Ibarra Chevez v. Garland, 31 F.4th 279, 292–93 (4th Cir. 2022).
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III. Conclusion
For the reasons above, we grant in part and deny in part Guevara Martinez’s petition
for review. We vacate the order of the BIA and remand for further proceedings consistent
with this opinion.
PETITION FOR REVIEW GRANTED IN PART, DENIED IN PART;
ORDER VACATED AND REMANDED
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WILKINSON, Circuit Judge, dissenting:
Warner Odir Guevara Martinez illegally entered the United States. When the
government sought to remove him, he requested asylum and withholding of removal. The
Immigration Judge (“IJ”) and Board of Immigration Appeals (“BIA”) denied relief, and
for good reason: His version of events is in equal parts extraordinary and preposterous,
featuring the haphazard trafficking of human hearts, a divine intervention at the brink of
death, and a Terminator-style motorcycle chase. He also paints himself as the
misunderstood victim in his own convictions for throwing his partner to the ground by her
hair, punching the back of her head, threatening to rip out her contraceptive implant,
repeatedly blocking her efforts for help, and trying to abscond with their daughter.
Reviewing these remarkable claims and more, the agency held that Guevara Martinez
“failed to meet his burden of proof.”
The majority disputes none of this. Yet it vacates and remands anyway, claiming
the agency failed to properly apply its own case law when determining whether Guevara
Martinez’s domestic violence qualified as a “particularly serious crime.” Since his tall tales
already doom his asylum and withholding claims, it is simply not relevant what kind of
crime he committed. Even if it were somehow relevant, the IJ and BIA correctly concluded
from the factual record that Guevara Martinez’s brutal assault on a family member was a
particularly serious crime. The remand here is thus wholly gratuitous. Because we do not
require process for the sake of process, I respectfully dissent.
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I.
Guevara Martinez entered the United States illegally. He can stay here only if he
qualifies for asylum or withholding of removal. For both claims, an alien must show
persecution based on a statutorily protected status. 8 U.S.C. §§ 1101(a)(42)(A),
1231(b)(3)(A). In his attempt to do so, Guevara Martinez says he experienced a series of
fantastical events demanding both the utmost suspension of disbelief and a disregard for
every part of the record that contradicts him. As the majority agrees, these chimerical
accounts do nothing to support granting him relief from removal. They therefore provide a
standalone ground to deny his petition and warrant retelling.
A.
Generally, an alien’s story must be “inherent[ly] plausib[le]” to justify asylum or
withholding of removal. Id. § 1158(b)(1)(B)(iii); see also id. § 1231(b)(3)(C). Guevara
Martinez’s testimony and evidence are anything but.
For instance, during a job interview in El Salvador, he purportedly discovered that
his interviewer, Luis Fernando Dias, had a cooler of human hearts in the room kept beating
by pacemaker-type devices running off a semitruck’s engine. This would be quite the
medical and engineering feat, especially since nothing indicates Dias had any specialized
knowledge in either field. Equally remarkable is that these organs were apparently headed
to Arizona for sale. Most hearts, even when stored using much more sophisticated medical
devices, “can only survive outside the body for four to six hours.” Health Res. & Servs.
Admin., Dep’t of Health & Hum. Servs., Matching Donors and Recipients (Apr. 2021). A
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direct flight from El Salvador to Arizona alone lasts over four hours. Surely Dias would
not squander any more precious time conducting a job interview.
Guevara Martinez’s attested Guatemalan escapades are even more absurd. He states
that two men, working for the same boss as Dias, cut his hands with a knife and pistolwhipped his head until he lost consciousness. They then allegedly held Guevara Martinez
captive for three days without food or water, eventually revealing their intention to strangle
him. Right before his scheduled execution, however, Guevara Martinez says he prayed for
two minutes. In an unbelievable twist of fate, one of the men felt so moved by Guevara
Martinez’s faith that he not only released him, but also gave him money and a blessing.
Unsurprisingly, this deus ex machina suffers from several glaring plot holes. Why
would such a ruthless torturer, after three days of sheer brutality at the behest of Dias’s
bloodthirsty leader, suddenly experience a change of heart from a brief prayer? And what
happened to the torturer’s coconspirator? Did he too experience a dramatic bout of
repentance?
The climax of the story is just as fictitious. According to his written declaration,
Guevara Martinez was motorcycling when Dias and some henchmen approached in two
cars. A chase ensued, during which the assailants continuously shot at him. They eventually
trapped Guevara Martinez in a dead end, causing him to collide with one of their cars and
fly off his motorcycle. Despite injuring his knee, Guevara Martinez ran into a nearby house
under construction and began scaling one of its walls. A bullet then struck his left calf.
With superhuman grit, Guevara Martinez kept climbing. He eventually reached the top and
jumped onto a house next door. But when a second bullet struck his right knee, he fell
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through the roof. Miraculously, that home happened to be owned by a female acquaintance.
So Guevara Martinez hid under her grandmother’s bed. Dias, who had somehow gained
entry, could not find him after a half-hour search because there were “a ton of things
underneath her bed” and “blood was pooled in [Guevara Martinez’s] boots” such that he
left no trail. J.A. 405. Once Dias left, the female acquaintance purportedly removed a bullet
from Guevara Martinez’s left calf, and some friends later picked him up.
Here too plot holes riddle the narrative. How could anyone climb a wall after being
thrust from a motorcycle and shot in the leg? Why did the roof collapse when Guevara
Martinez was shot a second time? What are the chances this home would be owned by an
acquaintance? Why would the assailants not move the things underneath the bed in the
only room with a hole in its ceiling? And why did the wound in Guevara Martinez’s right
knee, which he claims needed thirty-six stiches, not leave blood? Were his boots knee high?
Of course, none of this ever happened. Guevara Martinez would have us believe he
is something of a real-world Indiana Jones, repeatedly defying death through mystical
stunts and a healthy dose of luck. Dias, meanwhile, operates as a sort of sophisticated
villain, albeit one who suffers gaffes rivaling those of the cat in Tom and Jerry. Because
neither the IJ nor the BIA needs to throw out common sense when assessing credibility, we
can readily deny the petition on the basis that Guevara Martinez’s screenplay is too farfetched to be true.
B.
Compounding the implausibility of Guevara Martinez’s story is its total lack of
“consistency” across the record. 8 U.S.C. § 1158(b)(1)(B)(iii); see also id. § 1231(b)(3)(C).
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For example, while Guevara Martinez twice complained to foreign authorities after
the dates of his alleged kidnapping and shooting, neither police report names Dias or Los
Zetas (the drug-trafficking organization with whom Dias was purportedly affiliated) as the
culprit. Both instead specify that MS-13 attacked him after he refused to join it. The police
reports also make no mention of him being tortured, kidnapped, or chased by car.
Guevara Martinez tries to reconcile these problems by explaining that the authorities
intentionally misattributed the incidents to MS-13 given their fear of Dias and Los Zetas.
If that were true, one wonders why the police would bother filing a report at all, let alone
falsely blame a gang as dangerous as MS-13. That police in two distinct jurisdictions
tendered this same bizarre response, as Guevara Martinez claims, is even more ridiculous.
Indeed, contradicting the police is a theme in Guevara Martinez’s testimony. When
downplaying his two Virginia convictions, he could not have painted himself in a more
sympathetic light. He tells a tragic tale of waking up to his partner having sex with his
nephew. Upon confrontation, she purportedly bruised herself on purpose (by pressing on a
contraceptive implant in her arm) and then called the police to report domestic abuse,
despite Guevara Martinez begging her not to do so given the risk he would be deported.
He also maintains that he merely hugged his partner to stop her from hurting herself.
A contemporaneously created police report tells things quite differently. It recounts
how a police officer, upon responding to the partner’s domestic violence complaint, saw
Guevara Martinez forcibly grab her arm to pull her away from the entryway. So the officer
detained him and questioned both parties. According to the partner, Guevara Martinez had
earlier grabbed her arm forcefully; threatened to rip out a contraceptive implant in it,
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thinking the implant was used to mask infidelity; and “violently threw her to th[e] ground”
by her hair. J.A. 362. The officer noticed “fresh bruising” on her arm that “w[as] dark
purple” and “in the shape of fingerprints.” J.A. 362. Guevara Martinez, for his part, denied
any physical altercation but suspiciously omitted several exculpatory—and presumably
unforgettable—claims that later appeared in his testimony. For example, he failed to tell
the officer that he supposedly woke up to his partner having sex with his nephew and that
his partner apparently bruised herself.
The inconsistencies do not end there. Guevara Martinez attests that, after being
released from custody and served with a protective order, he returned home with his
partner’s consent so that he could peacefully gather his belongings, only to be greeted by
her and her family yelling at him to leave. But according to another police report, Guevara
Martinez used a key to enter and proceeded to assault his partner’s niece, punch his partner
in the back of her head, steal her phone, and try to flee with their daughter, all while he was
allegedly high on PCP.
C.
Riddled with incredible claims and bald contradictions, Guevara Martinez’s story is
as unconvincing as it gets. Substantial evidence thus easily supports the decisions of the IJ
and BIA. Remember, the record as a whole need only support their adverse credibility
determination by “more than a mere scintilla” of evidence. Urias-Orellana v. Bondi, 146
S. Ct. 845, 850 (2026) (quoting Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019)). And
since Guevara Martinez’s independent evidence comes nowhere near the “almost
insurmountable” burden needed for relief without credibility—a conclusion the majority
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does not dispute—we must deny his petition. Herrera-Alcala v. Garland, 39 F.4th 233,
251 (4th Cir. 2025) (quoting Rusu v. INS, 296 F.3d 316, 323 (4th Cir. 2002)).
II.
The majority does not even try to suggest that Guevara Martinez is telling the truth.
It instead opts to fault the IJ and BIA for, ostensibly, failing to follow their own precedent
when assessing whether Guevara Martinez committed a “particularly serious crime.” That
conclusion is both surprising and incorrect for several reasons.
A.
To state the obvious, an alien who unlawfully enters the United States, as Guevara
Martinez did, is subject to removal. He does not need to separately break the law after his
act of illegal immigration. The particularly serious crime bar is but an independent ground
to deem an alien ineligible for asylum and withholding of removal—if he otherwise
qualifies for such relief on the merits. See, e.g., Pagayon v. Holder, 675 F.3d 1182, 1190–
91 (9th Cir. 2011) (per curiam) (denying petition for review for alien who “failed to meet
his burden of pro[of]” without discussing “the IJ’s alternative conclusion” about the alien’s
particularly serious crime). And because Guevara Martinez does not qualify for asylum or
withholding on the merits, he can be removed. This straightforward observation should end
the case.
The majority seems to think that the IJ and BIA denied asylum and withholding of
removal solely on the basis that Guevara Martinez committed a particularly serious crime.
If true, that means we cannot decide this petition on another ground. See SEC v. Chenery
Corp., 318 U.S. 80, 95 (1943). However, the decisions below reveal the very opposite: over
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and over again, the agency denied Guevara Martinez’s claims first on the merits and second
on the particularly serious crime bar.
Recall the IJ’s decision, which the BIA adopted in full. After spending several pages
spelling out the many reasons why Guevara Martinez’s claims lacked credibility and
corroboration, the IJ twice wrote in connection with the asylum and withholding claims
that “[Guevara Martinez] failed to meet his burden of proof and persuasion.” J.A. 99–100.
He did so without mentioning the words “particularly serious crime” even once; rather, the
discussion of Guevara Martinez’s conviction came only afterward in a discrete, separately
designated portion of the opinion. J.A. 100–03. And in a concluding paragraph, the IJ again
explained that “[Guevara Martinez] failed to meet his burden of proof and persuasion as
he was not credible and failed to adequately corroborate his claim.” J.A. 109. The IJ then
added “further” that Guevara Martinez was ineligible for relief due to his crime of domestic
violence. J.A. 109.
By “further,” of course, the IJ meant that the particularly serious crime bar was an
independent, but not a necessary, basis to deny relief. This is made readily apparent by the
word’s ordinary meaning. See, e.g., Further, The American Heritage Dictionary of the
English Language 713 (5th ed. 2011) (“In addition; furthermore.”).
It is also made readily apparent by the IJ’s findings as to the burden of proof. For
both asylum and withholding of removal, of course, the alien bears the burden. 8 U.S.C.
§ 1158(b)(1)(B)(i) (“The burden of proof is on the applicant . . . .”); id. § 1231(b)(3)(C)
(“[T]he trier of fact shall determine whether the alien has sustained the alien’s burden of
proof . . . .”). So by repeatedly stating that Guevara Martinez “failed to meet his burden of
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proof,” the IJ necessarily denied Guevara Martinez’s claims for asylum and withholding
of removal. And again, the IJ did so entirely based on the unbelievable and uncorroborated
nature of his story. The particularly serious crime bar never entered the equation.
What exactly does the majority think will happen upon remand? The IJ and BIA
have already explained that Guevara Martinez’s claims are unpersuasive, and the majority
agrees with them on this front. Even if the agency decides—unnecessarily—to reevaluate
its analysis of Guevara Martinez’s domestic violence conviction, it will still be bound by
our holding that he lacks credibility and corroboration. After all, an “adverse credibility
determination and the lack of corroboration doom [an alien’s] claims.” Omowole v.
Garland, 6 F.4th 734, 743 (7th Cir. 2021). Ultimately, the majority does nothing but delay
the inevitable administration of justice. But “[p]rocess is not an end in itself.” Olim v.
Wakinekona, 461 U.S. 238, 250 (1983).
B.
The majority nevertheless debates whether Guevara Martinez’s conviction for
assault and battery against a family member was a “particularly serious crime” such that
he poses “a danger to the community of the United States.” 8 U.S.C. §§ 1158(b)(2)(A)(ii),
1231(b)(3)(B)(ii). That analysis would remain flawed even if it served some discernible
end.
Under our normal totality-of-the-circumstances test, this issue should have been
easy. Guevara Martinez violently threw his partner down by her hair and threatened to
remove a contraceptive implant inside her arm. Worse still, he denies guilt to this day,
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portraying himself instead as a saintly figure ruthlessly victimized by an unfaithful and
deportation-seeking romantic partner. That narrative is ludicrous if not offensive.
With this in mind, “the circumstances and underlying facts of [Guevara Martinez’s]
conviction” show he committed a particularly serious crime. Gao v. Holder, 595 F.3d 549,
557 (4th Cir. 2010) (quoting In re Frentescu, 18 I. & N. Dec. 244, 247 (BIA 1982)). And
“most importantly, . . . the type and circumstances of [his] crime indicate [he] will be a
danger to the community.” Id. (quoting In re Frentescu, 18 I. & N. Dec. at 247). If Guevara
Martinez is willing to commit and deny such disturbing violence against his romantic
partner (the mother of his daughter, no less), one can fairly conclude that he poses a danger
not just to her and her family, but to society. See, e.g., United States v. Staten, 666 F.3d
154, 167 (4th Cir. 2011) (“[T]he rate of recidivism among domestic violence
misdemeanants is substantial . . . .”).
The record thus confirms the obvious: the IJ and BIA rightly concluded that Guevara
Martinez, by violently abusing and threatening his partner while cutting her off from help,
committed a particularly serious crime. Moreover, any layman familiar with the
circumstances of Guevara Martinez’s crimes would say he poses “a danger to the
community.” 8 U.S.C. §§ 1158(b)(2)(A)(ii), 1231(b)(3)(B)(ii). Only lawyers could think
otherwise.
C.
Thinking otherwise, the majority faults the agency for failing to sufficiently
expound upon the first half of the supposed “two-step test” for identifying a particularly
serious crime. Maj. Op. at 12. That is, the IJ and BIA apparently failed to scrutinize whether
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assault and battery against a family member, in a vacuum, lands “within the ambit of a
particularly serious crime.” Id. (quoting Annor v. Garland, 95 F.4th 820, 827 (4th Cir.
2024)). Only if it does, the majority continues, can we finally turn to the individualized
facts of the alien’s crime. Id.
In other words, the majority endorses a confused form of the categorical approach,
locking our ordinary totality-of-the-circumstances analysis behind a threshold inquiry into
some vanilla violation of the statute underlying the alien’s conviction. Of course the
majority does not come right out and label its approach as categorical. But by forsaking a
simple totality-of-the-circumstances test in favor of an initial inquiry into the elements of
the offense, there is no other way to read it. If those “elements” fail to satisfy the majority’s
view of seriousness, that apparently would end the inquiry.
That makes little sense. Normally, “[t]he categorical approach serves ‘practical’
purposes: It promotes judicial and administrative efficiency by precluding the relitigation
of past convictions in minitrials conducted long after the fact.” Moncrieffe v. Holder, 569
U.S. 184, 200–01 (2013) (quoting Chambers v. United States, 555 U.S. 122, 125 (2009)).
None of these benefits apply to the typical removal based on a particularly serious crime.
For one thing, the IJ and BIA need only find that the alien was convicted of one particularly
serious crime, as opposed to, say, three violent felonies. See, e.g., Taylor v. United States,
495 U.S. 575, 600 (1990) (adopting the categorical approach to determine whether a crime
counts as one of “three previous convictions . . . for a violent felony” in 18 U.S.C.
§ 924(e)). For another, the removal process almost always follows shortly after the alien
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has been convicted of a particularly serious crime. Indeed, an alien’s criminal conduct is
often the impetus for the removal proceeding.
As an example, look no further than this very case: the IJ found particularly serious
Guevara Martinez’s conviction for assault and battery against a family member, doing so
just eleven months after Guevara Martinez pleaded guilty. How exactly is the adjudicatory
process made more efficient by forcing the agency to blind itself to the readily available
facts of an alien’s crime? Consider too that, under the majority’s framework, the agency
must still undergo a totality-of-the-circumstances analysis—but only after an academical
inquiry into whether a run-of-the-mill breach of the criminal statute can, at some abstract
level, be particularly serious. The practical justifications of the categorical approach,
whatever their merits elsewhere, simply do not apply here.
Neither do the statutory justifications. Ordinarily, the categorical approach comes
into play only where it has some basis in the text of the respective federal statute. Contrast,
e.g., id. at 600–01, with Nijhawan v. Holder, 557 U.S. 29, 37–40 (2009). Recall that the
statute here requires asking whether “the alien, having been convicted by a final judgment
of a particularly serious crime,” poses “a danger to the community of the United States.” 8
U.S.C. §§ 1158(b)(2)(A)(ii), 1231(b)(3)(B)(ii). The two key considerations in this
inquiry—seriousness of the crime and dangerousness to the community—are inherently
unique to each petitioner.
Of course, Congress recognized that some crimes are so egregious that they are per
se particularly serious. Id. §§ 1158(b)(2)(B), 1231(b)(3)(B); see, e.g., id. § 1101(a)(43)(A)
(“murder, rape, or sexual abuse of a minor”). But for everything else, the Immigration and
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Nationality Act (“INA”) leaves it up to the IJ and BIA to make the particularly serious
crime determination on a case-by-case basis. Every regional circuit recognizes this basic
structure. See, e.g., Lafortune v. Garland, 110 F.4th 426, 432, 434–36 (1st Cir. 2024);
Garcia Pinach v. Bondi, 147 F.4th 117, 135 n.7 (2d Cir. 2025); Laureano v. Att’y Gen.,
177 F.4th 453, 462–64 (3d Cir. 2026); Gao, 595 F.3d at 556–57; Aviles-Tavera v. Garland,
22 F.4th 478, 483 (5th Cir. 2022); Reyes-Romero v. Barr, 832 F. App’x 426, 429 (6th Cir.
2020); Kithongo v. Garland, 33 F.4th 451, 456 (7th Cir. 2022); Shazi v. Wilkinson, 988
F.3d 441, 449 (8th Cir. 2021); Edgar G.C. v. Bondi, 136 F.4th 832, 842 (9th Cir. 2025); NA-M v. Holder, 587 F.3d 1052, 1056 (10th Cir. 2009) (per curiam); K.Y. v. U.S. Att’y Gen.,
43 F.4th 1175, 1187 (11th Cir. 2022) (per curiam).
Given the petition before us, such consensus is not hard to understand. If Guevara
Martinez prevails in proving that his conviction is not within the so-called “ambit” of a
particularly serious crime, Maj. Op. at 13, then Virginia assault and battery against a family
member can never qualify as particularly serious. That type of categorical holding
undermines the INA in at least two respects: it deprives the IJ and BIA of their roles as the
initial triers of fact, and it negates the individualized inquiry that Congress intended when
enacting § 1158(b)(2)(A)(ii) and § 1231(b)(3)(B)(ii).
It also undermines all common sense. Nobody thinks that crimes of domestic abuse
can never be particularly serious, nor does anyone think that domestic abusers never pose
a danger to the community. To so much as entertain the thought otherwise, as the majority
does by remanding, does a disservice not just to Guevara Martinez’s battered partner, but
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also to the millions of victims of domestic violence. See FBI, Domestic Relationships and
Violent Crimes, 2020-2024, at 5 (Feb. 2026).
Guevara Martinez takes things one step further, suggesting that all misdemeanors
are not particularly serious absent exceptional circumstances. Opening Br. at 17–18. Such
a sweeping generalization departs radically from the facts-and-circumstances inquiry that
the INA demands. His argument is especially troublesome in the context of the domestic
abuse seen here, which all too often goes undercharged as a “misdemeanor[] rather than
[a] felon[y], notwithstanding the harmfulness of the[] [perpetrator’s] conduct.” Voisine v.
United States, 579 U.S. 686, 689 (2016); see, e.g., United States v. Skoien, 614 F.3d 638,
643 (7th Cir. 2010) (en banc) (“[M]any aggressors end up with no conviction, or a
misdemeanor conviction, when similar violence against a stranger would produce a felony
conviction.”).
Rather than address these difficult points, the majority hides behind our decision in
Annor v. Garland, 95 F.4th 820. There, the court invoked the threshold “ambit” inquiry for
the first—and only—time, claiming it derived from the BIA’s “established precedent” in
In re N-A-M-, 24 I. & N. Dec. 336 (BIA 2007). Annor, 95 F.4th at 827. Query at the outset
why we would accept without question an agency’s reading of a federal statute. See Loper
Bright Enters. v. Raimondo, 144 S. Ct. 2244, 2273 (2024). Query also why Annor
insufficiently engaged with the Fourth Circuit case law, both before and after In re N-AM-, that applied a simple totality-of-the-circumstances analysis. E.g., Yousefi v. INS, 260
F.3d 318, 328 (4th Cir. 2001) (per curiam); Gao, 595 F.3d at 557.
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The majority has lost the forest for the trees. Just look at the factual inquiry the INA
points us to: Do not apply an inapplicable, categorical-sounding criterion, which in effect
adds per se offenses that Congress did not enumerate. Look instead at Guevara Martinez’s
individual circumstances, not those of some other hypothetical person somewhere yonder.
Once again, Guevara Martinez brutally attacked and bruised his partner while repeatedly
barring her from seeking assistance.
III.
Guevara Martinez rests his case on a chain of tall tales, each contradicted on its face
and by independent evidence. Concluding as much, the IJ and BIA denied asylum and
explained that his conviction for violently assaulting, threatening, and silencing his partner
disqualified him from relief regardless. Rather than respect these ready findings, the
majority misconstrues the good work of the IJ and BIA and then criticizes them for errors
they did not commit. In the process, it merely stalls what we all know is inevitable: Guevara
Martinez will be denied asylum and withholding of removal. The INA does not reward
testimony that bears no discernable relationship to truth, and neither should we.
35