Case Overview
Case Name: in Matter of R-B-E-, 29 I&N Dec. 499 (BIA 2026).
Deciding Authority: Board of Immigration Appeals (BIA), U.S. Department of Justice, Executive Office for Immigration Review
Decision Date: March 6, 2026
Immigration Category: Withholding of Removal under INA § 241(b)(3)(A); Particularly Serious Crime Bar; Convention Against Torture Protection
In Matter of R-B-E-, decided March 6, 2026, the Board of Immigration Appeals sustained the Department of Homeland Security’s appeal and vacated an Immigration Judge’s grant of withholding of removal to a Haitian national. The Board held, first, that a fundamental change in circumstances in Haiti had rebutted the presumption of future persecution arising from the respondent’s past political harm, and second, that her 2020 federal conviction for Conspiracy to Commit Access Device Fraud constituted a particularly serious crime independently barring withholding of removal under the Immigration and Nationality Act. The case was remanded for adjudication of the respondent’s Convention Against Torture claim and explicit credibility findings.
Key Facts in Matter of R-B-E-
Background and Parties
The respondent is a native and citizen of Haiti who entered the United States in 2001 and was granted asylum on October 21, 2004. She never adjusted her status to that of a lawful permanent resident. The Department of Homeland Security was represented by Assistant Chief Counsel Michael J. Gross. The respondent was represented by Tiffany Chambers, Esquire, of Homestead, Florida. The BIA panel consisted of Appellate Immigration Judges Goodwin, Gemoets, and Volkert, with Judge Volkert authoring the decision.
Immigration History
The respondent was granted asylum based on harm she and her family suffered in 1999 and 2000 due to their opposition to the Lavalas government under former President Jean Bertrand Aristide and their association with the prior Duvalier government. After receiving asylum, the respondent did not pursue adjustment of status to lawful permanent resident. The court convicted her of Conspiracy to Commit Access Device Fraud in 2020, violating 18 U.S.C. § 1029(b)(2). This triggered removal proceedings. An Immigration Judge found the conviction was an aggravated felony, making her ineligible for asylum. The judge didn’t classify it as a particularly serious crime for withholding of removal.
Chronology of Material Events
- 1999–2000: Respondent’s family faced persecution in Haiti for opposing the Lavalas regime and ties to Duvalier.
- 2001: Respondent entered the United States.
- October 21, 2004: The court granted asylum to the respondent.
- In 2020, the court convicted the respondent of Conspiracy to Commit Access Device Fraud, involving theft of personal info for fraud. The intended loss amount ranged between $3.5 million and $9 million. The respondent got four years of probation, $50,560.43 restitution, and a $38,500 forfeiture money judgment.
- Post-2020: Respondent placed in removal proceedings. An Immigration Judge denied asylum due to an aggravated felony and denied status adjustment but granted withholding of removal.
- May 30, 2025: Immigration Judge issued decision granting withholding of removal. DHS filed a timely appeal to the BIA.
- March 6, 2026: BIA upheld DHS’s appeal, vacated withholding of removal, and remanded the record.
Legal Issues Presented in Matter of R-B-E-
The BIA addressed three principal legal questions in this immigration case brief:
First, whether DHS rebutted the regulatory presumption of future persecution arising from the Immigration Judge’s finding of past political persecution, by demonstrating a fundamental change in circumstances in Haiti sufficient to eliminate the nexus between the respondent’s original political claim and any prospective harm.
Second, whether an Immigration Judge may rely on evidence of generalized crime and widespread violence, unrelated to the original ground of past persecution, to find that a presumption of future threat to life or freedom has not been rebutted, particularly when other record evidence supports a fundamental change in circumstances.
Third, whether the respondent’s 2020 conviction for Conspiracy to Commit Access Device Fraud under 18 U.S.C. § 1029(b)(2) constitutes a particularly serious crime under INA § 241(b)(3)(B)(ii), 8 U.S.C. § 1231(b)(3)(B)(ii), independently barring eligibility for withholding of removal.
Legal Reasoning and Analysis in Matter of R-B-E-
Withholding of Removal: Standard and Presumption
To qualify for withholding of removal under INA § 241(b)(3)(A), a respondent must demonstrate that it is more likely than not that her life or freedom would be threatened on account of a protected ground. Under 8 C.F.R. § 1208.16(b)(1)(i), a finding of past persecution gives rise to a regulatory presumption of future threat to life or freedom. This presumption may be rebutted upon a showing of a fundamental change in circumstances such that the respondent’s life or freedom would not be threatened on account of a protected ground. The burden of proof rests on the respondent to establish a clear probability of persecution.
Fundamental Change in Circumstances: Political Context
The Board agreed with DHS that the presumption was rebutted by a fundamental change in circumstances. The Immigration Judge had found that the respondent’s past persecution was rooted in political events that occurred more than two decades before the appeal, during a period of conflict involving the Lavalas party, which has long since fallen from political power. Citing Imelda v. U.S. Att’y Gen., 611 F.3d 724, 729–30 (11th Cir. 2010), the Board recognized that a change in the government that persecuted an alien may constitute a fundamental change in circumstances. The respondent last resided in Haiti in 2000, and the record contained no evidence that she remained of interest to any political group based on her family’s prior political activity.
Improper Reliance on Generalized Crime and Violence
The Immigration Judge had relied on evidence of widespread gang violence, political instability, and deteriorating country conditions to conclude that the respondent would likely face future harm upon return to Haiti. The Board found this reasoning legally deficient. An Immigration Judge cannot rely on generalized crime and widespread violence unrelated to the original claim to find the presumption of future threat unrebutted, particularly where other evidence indicates a fundamental change in circumstances. The respondent herself testified that the gangs in Haiti operate indiscriminately and are not affiliated with the former Lavalas party, and that her political opinion was not the reason she feared harm from gangs. The Board further cited Matter of M-E-V-G-, 26 I&N Dec. 227, 235 (BIA 2014), for the well-established principle that asylum and refugee laws do not protect individuals from general violent or criminal conditions.
Absence of Nexus to a Protected Ground
The Board emphasized that the respondent had not demonstrated a clear probability of future harm independent of her past persecution. The Board noted that, according to Forgue v. U.S. Att’y Gen., 401 F.3d 1282, 1286 (11th Cir. 2005), an alien must present specific, detailed facts demonstrating a good reason to fear persecution due to a protected ground.
Although country conditions reports documented catastrophic security conditions in Haiti, they did not establish that anyone would individually target the respondent for political reasons. The Board also noted the Immigration Judge’s clear error in finding the respondent lacked significant connections to Haiti because the respondent’s mother continued to reside in Haiti and no one had harmed her — a factor that, under Ruiz v. U.S. Att’y Gen., 440 F.3d 1247, 1259 (11th Cir. 2006), and Matter of A-E-M-, 21 I&N Dec. 1157, 1160 (BIA 1998), undermines a claim of future persecution.
Particularly Serious Crime Analysis
In the alternative, the Board held that the respondent’s conviction constituted a particularly serious crime under INA § 241(b)(3)(B)(ii), independently barring withholding of removal. The Board reviewed this determination de novo. See Matter of R-A-M-, 25 I&N Dec. 657, 658 (BIA 2012). Because the respondent’s sentence of four years of probation did not meet the five-year aggregate imprisonment threshold for a per se particularly serious crime, the Board applied the multi-factor framework established in Matter of N-A-M-, 24 I&N Dec. 336, 342 (BIA 2007). Relying on Matter of F-R-A-, 28 I&N Dec. 460, 468 (BIA 2022), the Board found that a conviction involving conspiring to obtain money through fraud falls within the ambit of a particularly serious crime.
The Board identified several errors in the Immigration Judge’s analysis. The Immigration Judge improperly relied on the respondent’s cooperation with law enforcement as a mitigating factor. Citing Matter of N-A-M-, the Board reiterated that cooperation with law enforcement is a factor subsequent and unrelated to the commission of the offense and may operate to reduce a sentence but does not diminish the gravity of the crime. The Immigration Judge also improperly credited the respondent’s claim that she was unaware of her coconspirator’s intentions — a position flatly inconsistent with the statutory requirement of knowing and intentional fraud that was an essential element of the conviction. The Board applied Matter of Garcia-Flores, 29 I&N Dec. 230, 231 (BIA 2025), for the principle that a convicted alien must be considered guilty of the crime and that self-exculpatory claims cannot mitigate the seriousness of an offense that required specific criminal intent.
Weighing the relevant factors, the Board found the crime particularly serious given the abuse of the respondent’s position as an insurance sales agent to steal personal identifying information from numerous clients, the sophisticated and prolonged nature of the scheme, the intended loss amount of $3.5 million to $9 million, the traceable theft of $38,500, the ordered restitution of $50,560.43, and the sentence of four years of probation. The Board cited Equifax Inc. Customer Data Sec. Breach Litig. v. Equifax Inc., 999 F.3d 1247, 1263–64 (11th Cir. 2021), to underscore the severe and lasting harm imposed by identity theft on victims, including damage to credit, unauthorized accounts, and the personal burden of remediation.
Remand for Convention Against Torture and Credibility Findings
Because the Immigration Judge had deemed the respondent’s Convention Against Torture application moot upon granting withholding of removal, the Board remanded for adjudication of that application. On remand, the Immigration Judge is directed to make explicit credibility findings addressing the inconsistencies, omissions, and implausibilities identified by DHS, and to apply those findings to the CAT analysis.
Practical Implications in Matter of R-B-E-
Impact on Applicants and Practitioners
Matter of R-B-E- carries important implications for foreign nationals in removal proceedings who allege past persecution and seek withholding of removal protection under U.S. immigration law.
For individuals who suffered political persecution tied to governments or regimes that have since fallen from power, the decision reinforces that changed political conditions can rebut the regulatory presumption of future persecution even where general instability and violence persist in the country of removal. Applicants must establish a current and individualized nexus between the original ground of past persecution and any feared future harm — generalized gang violence or criminal conditions, even if severe, will not satisfy this requirement absent evidence of political targeting.
Practitioners should note that country conditions evidence describing widespread violence is insufficient on its own to establish a clear probability of persecution on account of a protected ground. Claims must be supported by specific, detailed facts demonstrating that the applicant would be individually singled out. Evidence of similarly situated family members remaining unharmed in the country of removal can significantly undermine a future persecution claim and should be anticipated and addressed in case preparation.
Particularly Serious Crime: Documentation and Compliance Considerations
The decision provides significant guidance on the particularly serious crime framework as it applies to fraud-based offenses. Respondents with convictions involving fraud, deceit, or unauthorized financial access — including access device fraud, bank fraud, wire fraud, or related conspiracy offenses — face substantial risk that their conviction will be classified as particularly serious, regardless of sentence length. Cooperation with law enforcement and self-exculpatory testimony, while potentially relevant to sentencing, will not mitigate the immigration classification of the offense.
Defense counsel in criminal proceedings involving foreign nationals must be attentive to the immigration consequences of fraud-based convictions at the plea stage. The intended loss amount, the scope and duration of the scheme, the number of victims, and the nature of the fraud are all factors the BIA will consider in determining whether a crime is particularly serious.
Risk Mitigation Guidance
Individuals in removal proceedings with a prior grant of asylum who have not adjusted status to lawful permanent residence face compounded vulnerabilities. Adjustment of status, where available, provides a critical layer of protection from removal proceedings triggered by subsequent criminal conduct. Foreign nationals who have been granted asylum should consult with qualified immigration counsel to evaluate adjustment eligibility without delay.
If an immigration judge denies withholding of removal, the protection provided by the Convention Against Torture may offer a separate and significant option for relief. CAT protection may be available even if the applicant has a conviction for a particularly serious crime, without requiring a nexus to a protected ground. Practitioners should ensure that they fully develop CAT applications in the record, including evidence of the particular risk of torture the applicant faces from government actors or individuals the government is unable or unwilling to control.
How Can an Immigration Lawyer from the Immigration Professional Association Help?
Attorneys at the Immigration Professional Association have experience in representing foreign nationals facing complex removal proceedings, including cases involving past grants of asylum, criminal convictions, and applications for withholding of removal and Convention Against Torture protection. IPA attorneys can conduct a thorough case assessment to evaluate all available options and the strengths and weaknesses of each avenue of relief under current U.S. immigration law when changed country conditions or a potentially disqualifying criminal conviction threaten a client’s asylum or withholding claim.
IPA immigration lawyers understand the legal standards governing the particularly serious crime bar and can evaluate whether a client’s specific conviction — including fraud, conspiracy, or financial crimes — may render them ineligible for withholding of removal, and can advise on alternative forms of protection that may remain available. In cases where a client has a prior grant of asylum and has not adjusted status, IPA attorneys can assess eligibility for adjustment to lawful permanent resident status, which may provide critical protection from removal proceedings.
