BIA Tightens CAT Protection: Matter of O-Y-A-E-
Read the official opinion:
Matter of O-Y-A-E-, 29 I&N Dec. 190 (BIA 2025)
Quick Overview
- New Precedent: General threats and countrywide danger no longer qualify for protection under the Convention Against Torture (CAT) unless the risk is recent, individualized and ongoing.
- Background: The respondent, a former Venezuelan military counterintelligence officer, refused to falsify documents for her commander and faced threats in July 2021. She retired in December 2021. After no contact for years, she left Venezuela in February 2024.
- BIA Ruling: The Board reversed a grant of CAT deferral, holding that the risk was too attenuated and not supported by current, particularized evidence.
How Did the Standard Change?
Previous Law: Until now, courts often considered a combination of credible past threats, general evidence of country conditions, and the government’s capacity to identify an applicant as sufficient for CAT protection.
Matter of O-Y-A-E-: The Board firmly requires “recent, particularized threat of torture.” Evidence of prior threats or countrywide human rights abuses, alone, is inadequate if the applicant was not harmed, contacted, or pursued in the years before departure.
Legal authorities cited:
- Dhital v. Mukasey: Applicants must face a “particularized threat of torture.”
- Tzompantzi-Salazar v. Garland: General crime, violence and police corruption are insufficient—evidence must show ongoing individual risk.
- Matter of R-A-F-: Board reviews “predictive factual findings” for clear error, but new emphasis is on contemporaneous evidence.
Timeline of Case Events
| July 2021 | Threats from military commander. Visits to respondent’s home. |
| December 2021 | Respondent retires from Venezuelan military. No further contact. |
| Feb 2024 | Leaves Venezuela. No threats or pursuit for 2.5 years prior. |
| July 2025 | BIA reverses CAT protection, citing absence of ongoing individualized risk. |
Summary Table: What Counts Now?
| Evidence | Before | Now (O-Y-A-E-) |
|---|---|---|
| Old threats | Often enough | Insufficient |
| General country conditions | Often enough | Insufficient |
| Recent, ongoing risk | Not always required | Absolutely required |
| Government pursuit | Helpful, not essential | Essential |
Practical Impact and Next Steps
- This ruling will lead to far more denials for Venezuelan and other applicants whose last threat is “stale.”
- Attorneys must develop recent, documentary proof of pursuit or threats right up to the time of departure.
- CAT protection is now nearly impossible if you only have old threats or rely on general reports of abuse.
In sum: The BIA in Matter of O-Y-A-E- demands real-time, individualized risk for CAT protection. Old stories and broad country evidence no longer suffice.
Always read and cite the full case:
Matter of O-Y-A-E-, 29 I&N Dec. 190 (BIA 2025)
BIA vs. ALL CIRCUITS: This Decision Is Dead on Arrival
THE FUNDAMENTAL SPLIT: Aggregate vs. Individual Analysis
EVERY FEDERAL CIRCUIT SAYS:
“Consider ALL risk factors CUMULATIVELY”
Past threats + Country conditions + Personal factors = ANALYZED TOGETHER
BIA O-Y-A-E- SAYS:
“Each factor must stand ALONE”
Old threats = worthless
Country conditions = insufficient
THE CIRCUITS REQUIRING AGGREGATE APPROACH
️ Third Circuit – Pennsylvania, New Jersey, Delaware
Case: Kamara v. Attorney General, 420 F.3d 202, 213-14 (3d Cir. 2005)
Standard: “Cumulative probability of torture by [multiple sources] exceeds 50%”
️ Fourth Circuit – Maryland, Virginia, North Carolina, South Carolina, West Virginia
Case: Rodriguez-Arias v. Whitaker, 915 F.3d 968, 972-73 (4th Cir. 2019)
Standard: “Consider the aggregated risk caused by all three entities in unison”
️ Sixth Circuit – Michigan, Ohio, Kentucky, Tennessee
Case: Marqus v. Barr, 968 F.3d 583, 589 (6th Cir. 2020)
Standard: “Cumulative probability of torture by [all] entities, or for all reasons”
️ Seventh Circuit – Illinois, Indiana, Wisconsin (CHICAGO AREA)
Case: Nyandwi v. Garland, 15 F.4th 836, 839 (7th Cir. 2021)
“The agency may address risk factors individually SO LONG AS it considers all sources of and reasons for risk cumulatively”
⚠️ O-Y-A-E- DIRECTLY VIOLATES this binding precedent
️ Eighth Circuit – Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, South Dakota
Case: Abdi Omar v. Barr, 962 F.3d 1061, 1065 (8th Cir. 2020)
Standard: Must follow aggregate risk approach for CAT determinations
️ Ninth Circuit – California, Alaska, Arizona, Hawaii, Idaho, Montana, Nevada, Oregon, Washington
Case: Quijada-Aguilar v. Lynch, 799 F.3d 1303, 1308 (9th Cir. 2015)
Standard: Risk factors must be considered “in the aggregate”
CIRCUITS SUPPORTING BIA INDIVIDUAL APPROACH
ZERO
No federal circuit has endorsed O-Y-A-E-‘s restrictive standard
THE INEVITABLE RESULT
| Circuit | Geographic Area | Key Case | Result |
|---|---|---|---|
| 3rd Circuit | PA, NJ, DE | Kamara v. Attorney General | Will Reject O-Y-A-E- |
| 4th Circuit | MD, VA, NC, SC, WV | Rodriguez-Arias v. Whitaker | Will Reject O-Y-A-E- |
| 6th Circuit | MI, OH, KY, TN | Marqus v. Barr | Will Reject O-Y-A-E- |
| 7th Circuit | IL, IN, WI (Chicago) | Nyandwi v. Garland | WILL REJECT O-Y-A-E- |
| 8th Circuit | AR, IA, MN, MO, NE, ND, SD | Abdi Omar v. Barr | Will Reject O-Y-A-E- |
| 9th Circuit | CA, AK, AZ, HI, ID, MT, NV, OR, WA | Quijada-Aguilar v. Lynch | Will Reject O-Y-A-E- |
IMMEDIATE STRATEGY FOR PRACTITIONERS
The BIA just declared war on six federal circuits. Here’s how to respond:
- Argue Circuit Precedent Controls: Federal circuit law trumps BIA precedent in that circuit
- Preserve the Issue: Make aggregate approach arguments in every case
- File Cert Petitions: This 6-0 circuit split is Supreme Court material
- Chicago Area: Nyandwi is binding law that directly contradicts O-Y-A-E-
Binding Chicago-Area Precedent:
Nyandwi v. Garland, 15 F.4th 836 (7th Cir. 2021)
️ Supreme Court Certainty: When the BIA creates an unprecedented circuit split by rejecting unanimous federal court precedent, Supreme Court review becomes highly likely, though not inevitable. Historical evidence shows the Court frequently sides with circuit courts over restrictive BIA interpretations in cases involving judicial review and due process.
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CIRCUIT SPLIT ANALYSIS: O-Y-A-E- vs. Federal Courts
THE FUNDAMENTAL CONFLICT
WHAT ALL 6 CIRCUITS REQUIRE:
“Individual Analysis + Cumulative Analysis = Complete”
Must consider all factors both separately AND together
WHAT O-Y-A-E- ACTUALLY DID:
“Individual Analysis + Stop = Complete”
Skipped mandatory cumulative analysis
EVIDENCE O-Y-A-E- DISMISSED INDIVIDUALLY
- Past threats to torture/kill respondent + family (July 2021)
- Commander under EU sanctions for human rights violations
- Country conditions showing systematic torture by Venezuelan military
- Military background – easily identifiable as former counterintelligence officer
- Whistleblower status – refused to falsify terrorist attack document
THE MISSING ANALYSIS (Required by ALL Circuits):
QUESTION NEVER ASKED: Do these 5 factors TOGETHER create a more-likely-than-not (>50%) risk of torture upon return?
CIRCUIT PRECEDENT VIOLATED
️ Seventh Circuit – Illinois, Indiana, Wisconsin (CHICAGO AREA)
Case: Nyandwi v. Garland, 15 F.4th 836 (7th Cir. 2021)
“The agency may address risk factors individually SO LONG AS it considers all sources of and reasons for risk CUMULATIVELY”
️ Third Circuit – Pennsylvania, New Jersey, Delaware
Kamara v. Attorney General: “Cumulative probability of torture by [multiple sources] exceeds 50%”
️ Fourth Circuit – Maryland, Virginia, North Carolina, South Carolina, West Virginia
Rodriguez-Arias v. Whitaker: “Consider the aggregated risk caused by all three entities in unison”
️ Sixth Circuit – Michigan, Ohio, Kentucky, Tennessee
Marqus v. Barr: “Cumulative probability of torture by [all] entities, or for all reasons”
️ Eighth Circuit – Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, South Dakota
Abdi Omar v. Barr: Must follow aggregate risk approach for CAT determinations
️ Ninth Circuit – California, Alaska, Arizona, Hawaii, Idaho, Montana, Nevada, Oregon, Washington
Quijada-Aguilar v. Lynch: Risk factors must be considered “in the aggregate”
PROOF OF DIRECT VIOLATION
- O-Y-A-E- treats aggregate as: “Sum of insufficient parts = Insufficient whole”
- Circuits require: “Ask whether insufficient parts create sufficient whole”
- BIA conclusion came ONLY from individual analysis
- Never performed mandatory cumulative analysis
MATHEMATICAL INCOMPATIBILITY
Circuit Standard: Individual Analysis + Cumulative Analysis = Complete
O-Y-A-E- Standard: Individual Analysis + Stop = Complete
RESULT: Direct violation of binding federal court precedent
INEVITABLE OUTCOME
Every circuit court reviewing O-Y-A-E- cases will find they violate binding precedent requiring aggregate analysis of CAT claims.
The BIA just declared that 20 years of unanimous circuit precedent is WRONG.
Supreme Court review is now possible with this 6-0 circuit split.
BIA Reversal Patterns in Federal Courts:
- Supreme Court consistently sides with circuits over restrictive BIA interpretations in due process cases
- Recent decisions like Santos-Zacaria and Guerrero-Lasprilla show Court’s willingness to constrain BIA overreach
- Circuit court reversal rates of BIA decisions average 8-12% annually
Binding Chicago-Area Precedent:
Nyandwi v. Garland, 15 F.4th 836 (7th Cir. 2021)
