Unreported / Non-Citable
Background
Pau Than Tuang, a Chin Christian and native of Burma, entered the United States as a refugee in 2012 and became a lawful permanent resident in 2017. In 2021, he pleaded guilty in Oklahoma state court to forcible sodomy of a child and four counts of lewd molestation of a child arising from the 2015 sexual assault of a 14-year-old. After his release from prison, immigration authorities initiated removal proceedings. Tuang conceded removability but sought deferral of removal under the Convention Against Torture.
An immigration judge granted CAT relief, finding it more likely than not that Burmese authorities would identify Tuang as a deportee, forcibly conscript him, assign him dangerous duties, and severely mistreat him because of his Chin ethnicity and Christian faith. The Board of Immigration Appeals reversed, concluding that the pivotal predictive findings were clearly erroneous and that the evidence did not establish every link in the proposed chain of events. The BIA ordered Tuang removed to Burma, and he was removed while his Fifth Circuit petition was pending.
The Court’s Holding
The Fifth Circuit denied Tuang’s petition for review. It held that the BIA actually applied the required clear-error standard rather than improperly reweighing the evidence de novo. The record did not permit a finding that Tuang was more likely than not to be forcibly conscripted: Burma planned to draft only a fraction of those eligible, the evidence about deportees returned from Thailand did not establish that more than half were conscripted, and some returnees avoided service by paying bribes.
The court also agreed that the immigration judge clearly erred in predicting that, if conscripted, Tuang would receive dangerous assignments or suffer severe mistreatment because of his ethnicity or religion. Evidence that civilians and ethnic minorities had been used as porters or human shields outside the conscription context did not establish how Tuang likely would be treated as a military recruit. His childhood mistreatment, although serious, had not amounted to past torture, and the record did not show that his absence from a household registry would lead to punishment amounting to torture.
Finally, the court rejected Tuang’s argument that the BIA improperly made new factual findings and therefore had to remand. The BIA did not develop the record, gather new evidence, or choose between disputed facts; it reviewed the immigration judge’s predictive findings for clear error. Because Tuang failed to prove that torture was more likely than not, no further factfinding was required.
Key Takeaways
- A CAT applicant relying on a chain of predicted events must show that each necessary link is more likely than not to occur.
- The BIA may reverse an immigration judge’s predictive factual findings when it applies clear-error review and the record does not support the required probability.
- Evidence of widespread violence, discrimination, and human-rights abuses does not by itself establish that a particular applicant is more likely than not to be tortured.
Why It Matters
The decision illustrates the evidentiary burden facing CAT applicants whose claims depend on several contingent future events. General country-condition evidence may demonstrate serious danger, but relief requires record support showing that the applicant personally is more likely than not to pass through each step leading to torture.
The opinion also clarifies the line between permissible BIA clear-error review and prohibited appellate factfinding. The BIA need not remand merely because it determines that an immigration judge’s pivotal predictive findings lack adequate support.