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Matter of J-H-M-H-, Respondent
Decided October 7, 2025
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
In making findings of fact and conclusions of law, Immigration Judges exercise
independent judgment and are not required to accept party stipulations.
FOR THE RESPONDENT: Kerry Q. Battenfeld, Esquire, Buffalo, New York
FOR THE DEPARTMENT OF HOMELAND SECURITY: Sydney V. Probst, Assistant
Chief Counsel
BEFORE: 	Board Panel: 	MULLANE, 	GOODWIN, 	and 	GEMOETS, Appellate
Immigration Judges.
GOODWIN, Appellate Immigration Judge:
In a decision issued on March 25, 2024, the Immigration Judge denied
the respondent’s application for deferral of removal under the regulations
implementing the Convention Against Torture (“CAT”).1 	The respondent
and the Department of Homeland Security (“DHS”) filed a joint motion to
reconsider the denial of CAT protection. 	While the motion was pending
before the Immigration Judge, the respondent appealed the denial of CAT
protection to the Board. The Immigration Judge denied the motion on May 1,
2024. 	The respondent appealed both decisions.2 	The two appeals are
1 	The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment, Dec. 10, 1984, S. Treaty Doc. No. 100-20, 1465 U.N.T.S. 85 (entered into
force for United States Nov. 20, 1994). 8 C.F.R. §§ 1208.16(c), 1208.17 (2025); 8 C.F.R.
§ 1208.18(a) (2020).
2 	The respondent conceded ineligibility for asylum based on the untimely filing of the
asylum application. 	The respondent also does not challenge the Immigration Judge’s
denial of the application for withholding of removal under section 241(b)(3)(A) of the
Immigration and Nationality Act, 8 U.S.C. § 1231(b)(3)(A) (2018). Therefore, we deem
waived any further argument or evidence on these applications. 	See Matter of P-B-B-,
28 I&N Dec. 43, 44 n.1 (BIA 2020) (stating that arguments not raised on appeal are deemed
waived).

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consolidated before the Board.3 DHS has filed a submission maintaining its
stipulation to a grant of CAT protection. The appeals will be dismissed.
The respondent is a native and citizen of Honduras. 	The respondent
claims a fear of torture in Honduras because the respondent is a transgender
woman. 	On October 27, 2023, the respondent and DHS submitted a
Memorandum in Support of Joint Stipulation. Before the Immigration Judge,
the parties stipulated that the respondent identifies as a transgender woman,
that the testimony would be consistent with the written materials submitted,
and that the respondent was eligible for deferral of removal under the
regulations implementing the CAT. The Immigration Judge rejected the joint
stipulation and set the case for hearings to take testimony. Although given
multiple opportunities to do so, the respondent did not testify in support of
the claim, seeking to rely on the contents of the application, the personal
statement, and the stipulation agreement.
Relying on Matter of Fefe, 20 I&N Dec. 116 (BIA 1989), the Immigration
Judge rejected the parties’ joint stipulation, finding that the respondent’s
credibility could not be ascertained without testimony. 	The Immigration
Judge also found the respondent not credible, in part, based on conflicting
documentary evidence regarding the conduct that led to the respondent’s
felony conviction.
On appeal, the respondent argues that the Immigration Judge erred in
finding that the parties did not stipulate that the respondent would testify
credibly as to the contents of the application and personal statement. At the
time the parties submitted the joint stipulation, the respondent had not
submitted the personal statement or the updated asylum application. 	Thus,
we discern no clear error in the Immigration Judge’s finding that the joint
stipulation could not be interpreted to agree to exhibits that were not in the
record at the time of the stipulation. See 8 C.F.R. § 1003.1(d)(3)(i) (2025).
The respondent further argues that the Immigration Judge erred in
rejecting the parties’ joint stipulation. Specifically, the respondent contends
that 	the 	Immigration 	Judge 	misinterpreted 	Matter 	of 	Fefe 	to 	require
3 	Because the parties’ joint motion to reconsider was still pending at the time the
respondent filed the initial appeal on April 24, 2024, the Immigration Judge no longer had
jurisdiction over this motion at the time he issued his May 1, 2024, decision. See 8 C.F.R.
§ 1003.23(b)(1) (2020) (stating that an Immigration Judge may “reconsider any case in
which he or she has made a decision, unless jurisdiction is vested with the Board of
Immigration Appeals”). Under such circumstances, we may deem the motion to reconsider
a motion to remand and consolidate it with the underlying appeal. 	See 8 C.F.R.
§ 1003.2(b)(1) (2025).

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testimony even when the parties have entered into a joint stipulation. 	In
Matter of Fefe, 20 I&N Dec. at 118, we held that, at a minimum, the
regulations require that an asylum or withholding applicant take the stand, be
placed under oath, and be questioned as to whether the information in his or
her written application is complete and correct, and that the examination of
an applicant will ordinarily be this brief only where the parties have
stipulated that the applicant’s oral testimony would be consistent with his or
her written application and be believably presented.
The reliance on Matter of Fefe in this case is entirely misplaced. As we
recently 	recognized 	in 	Matter 	of 	H-A-A-V-, 	29 	I&N 	Dec. 	233, 	236
(BIA 2025), Matter of Fefe “is no longer binding precedent,” as it predated
the enactment of statutory provisions regarding the rights of respondents to
present evidence in removal proceedings and relied on regulations that are
no longer in effect.4 	Thus, the issue in this case is not compliance with
Matter of Fefe.
Rather, 	the 	issue 	is 	an 	Immigration 	Judge’s 	duty 	to 	adjudicate
applications for relief and requests for protection. The regulation at 8 C.F.R.
§ 1003.10(b) (2025) states: 	“In deciding the individual cases before
them . . . immigration judges shall exercise their independent judgment and
discretion and may take any action consistent with their authorities under the
Act and regulations that is necessary or appropriate for the disposition or
alternative resolution of such cases.” (Emphasis added.) 	While we have
previously 	recognized 	the 	value 	of 	parties’ 	agreement 	on 	issues,
see Matter of Yewondwosen, 21 I&N Dec. 1025, 1026 (BIA 1997), the views
of the parties do not supersede an Immigration Judge’s duty to exercise
independent judgment.
Immigration Judges have broad discretion in conducting immigration
proceedings 	and 	admitting 	and 	considering 	evidence. 	Matter 	of
Interiano-Rosa, 25 I&N Dec. 264, 265 (BIA 2010). While an Immigration
Judge may accept the parties’ stipulations in lieu of evidence, he or she is not
required to do so. 	See id. 	Nor is an Immigration Judge bound by parties’
stipulations as to the legal issue of whether a respondent has satisfied his or
her burden of proof for relief or protection because legal stipulations cannot
4 	Immigration Judges continue to have the authority to employ the minimal testimonial
procedure discussed in Matter of Fefe, but their decision to do so is completely
discretionary. 	See Matter of Interiano-Rosa, 25 I&N Dec. 264, 265 (BIA 2010)
(“Immigration Judges have 	broad discretion to conduct and control immigration
proceedings and to admit and consider relevant and probative evidence.”). There is no
requirement that Immigration Judges adopt an abbreviated procedure, even if the parties
stipulate to one.

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be binding.5 See Avila v. INS, 731 F.2d 616, 620–21 (9th Cir. 1984) (noting
that a stipulation of law is not binding). 	The authority to conduct removal
proceedings and decide whether an alien is removable from the United States
is delegated by statute to the Immigration Judge, not to DHS or the
respondent. 	See 	sections 	240(a)(1) 	and 	(c) 	of 	the 	Immigration 	and
Nationality 	Act 	(“INA”), 	8 	U.S.C. 	§ 	1229a(a)(1), 	(c) 	(2018). 	An
Immigration Judge is not exercising independent judgment if he or she is
required to accept stipulations from the parties. See 8 C.F.R. § 1003.10(b);
see also Hoodho v. Holder, 558 F.3d 184, 192 n.7 (2d Cir. 2009) (recognizing
that an Immigration Judge need not “mechanically accept” a concession by
a party and “may probe the basis for the concession” where the Immigration
Judge “has reason to believe that a mistake might have been made”). Thus,
we conclude that in making findings of fact and conclusions of law,
Immigration Judges exercise independent judgment and are not required to
accept party stipulations.
In this case, the Immigration Judge advised the parties that he would not
accept the joint stipulation and offered the respondent multiple opportunities
to testify. Where, as here, the respondent makes the tactical decision not to
testify, it is neither erroneous nor a due process violation for the Immigration
Judge 	to 	reject 	the 	parties’ 	stipulations 	and 	employ 	independent
judgment—as required by the INA and the regulations—to conclude that the
respondent has not satisfied his or her burden of proof for the requested relief
or protection.
Turning to the merits of the respondent’s application for deferral of
removal under the CAT, we agree with the Immigration Judge that the
respondent did not establish that it is more likely than not that the respondent
will be tortured in Honduras.6 See 8 C.F.R. § 1208.16(c)(2) (2025); 8 C.F.R.
1208.18(a)(1) (2020). 	The Board reviews for clear error the Immigration
Judge’s factual findings regarding what will happen to the respondent in
Honduras but reviews de novo whether the predicted outcome satisfies the
regulatory definition of torture and whether the respondent has satisfied the
required burden of proof. See Matter of R-A-F-, 27 I&N Dec. 778, 779–80
(A.G. 2020); 8 C.F.R. § 1003.1(d)(3)(i), (ii).
5 	The parties in this case stipulated to both facts and to the respondent’s eligibility for
CAT protection, but eligibility for CAT involves both factual and legal determinations, and
it is for the Immigration Judge to determine whether the respondent has satisfied the burden
of proof.
6 	We do not rely on the Immigration Judge’s adverse credibility finding with regard to
CAT eligibility.

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The Immigration Judge assessed the record evidence, including country
condition reports, the expert witness’ testimony, and the respondent’s
personal statement. 	After considering the totality of the evidence, the
Immigration Judge concluded that the record was insufficient to show that
the respondent would more likely than not be tortured in Honduras. 	On
appeal, the respondent points to evidence of transgender persons being
harassed, beaten, and ill-treated by police, noting the expert witness’
testimony that a Honduran law giving police authority to arrest those who
violate modesty, proper conduct, and public morals has routinely been used
against LGBT persons. 	The respondent also points to the 2009 killing of a
transgender woman on the streets of San Pedro Sula and the finding by the
Inter-American 	Commission 	on 	Human 	Rights 	that 	the 	Honduran
government was responsible for the death.
The analysis of CAT involves a two-step inquiry. 	“First, the applicant
must show that, in his or her particular situation, it is more likely than not
that he or she will be harmed upon removal in a way recognized by [8 C.F.R.
§] 1208.18(a).” Garcia-Aranda v. Garland, 53 F.4th 752, 758 (2d Cir. 2022).
In determining whether an alien is more likely than not to be tortured in the
country of removal, we consider all relevant evidence, including evidence of
(1) past torture, (2) the alien’s ability to safely relocate, (3) gross, flagrant,
or mass violations of human rights in a country, and (4) other relevant
country conditions. 8 C.F.R. § 1208.16(c)(3).
We accept as true that the respondent is a transgender woman and
consider the respondent’s claim of past harm credible. 	The Immigration
Judge found that the respondent suffered serious harm by private individuals
as a child in Honduras. However, evidence that the respondent was sexually
abused in Honduras more than 20 years ago does not establish that the
respondent 	will 	suffer 	similar 	harm 	upon 	removal. 	See 	generally
Ming Li Hui v. Holder, 769 F.3d 984, 986 (8th Cir. 2014) (recognizing that
a change in age, from a child to an adult, can be a fundamental change in
circumstances rebutting a presumption of future persecution).
The death of the respondent’s brother in Honduras in 2007 likewise does
not provide sufficient evidence, when considered with other relevant factors,
that the respondent will suffer similar harm. 	Although the respondent’s
statement says that the respondent’s brother dressed as a woman while living
in the United States and was killed within days of being deported to
Honduras, 	the 	respondent 	did 	not 	provide 	any 	details 	regarding 	the
circumstances or motive for the killing. 	Thus, we cannot determine who
killed the brother and whether the brother was killed for being transgender
or for some unrelated reason.

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We recognize that the respondent has submitted substantial country
conditions evidence of discrimination and ill treatment of LGBT persons,
including transgender women, and that some of the harm is committed by
public officials. While some of this harm is severe, and the respondent has
presented evidence of transgender women being killed, anecdotal evidence
of some individuals suffering severe harm is not sufficient to show that a
particular alien is more likely than not to suffer harm rising to that level. See
Matter 	of 	A-A-R-, 	29 	I&N 	Dec. 	38, 	41–42 	(BIA 	2025); 	see 	also
Matter of J-E-, 23 I&N Dec. 291, 303–304 (BIA 2002) (concluding that the
alien had failed to establish that instances of severe mistreatment were so
pervasive as to establish a probability that he would suffer harm constituting
torture). 	Based on the record before us, we discern no clear error in the
Immigration Judge’s finding that the evidence does not establish that the
respondent will suffer severe harm rising to the level of torture if removed to
Honduras. See Matter of R-A-F-, 27 I&N Dec. at 779 (noting that the Board
reviews predictive findings for clear error); see also Matter of A-A-R-,
29 I&N Dec. at 41 (distinguishing between factual findings regarding the
type and likelihood of mistreatment with the legal determination that this
mistreatment constitutes torture).
As the respondent has not established the first step of the two-step inquiry
for CAT, we need not analyze the second step of whether the harm will be
“inflicted by, or at the instigation of, or with the consent or acquiescence, of
a public official.” 	Garcia-Aranda, 53 F.4th at 759 (quoting 8 C.F.R.
§ 1208.18(a)(1)). To the extent the respondent claims harm by private actors,
including 	gangs, 	in 	addition 	to 	the 	police, 	we 	need 	not 	address 	the
respondent’s arguments regarding government acquiescence because the
respondent has not demonstrated a sufficient likelihood of harm rising to the
level of torture. See Matter of L-A-C-, 26 I&N Dec. 516, 526 n.7 (BIA 2015)
(declining to reach alternative issues on appeal regarding ineligibility for
relief where an applicant is otherwise statutorily ineligible for such relief).
We affirm the Immigration Judge’s ultimate legal determination that the
respondent has not met the burden of proof for CAT protection. See 8 C.F.R.
§ 1208.16(c)(2). The respondent’s appeal of the Immigration Judge’s denial
of deferral of removal under the CAT will be dismissed.
For the reasons discussed above, we will also dismiss the respondent’s
appeal of the Immigration Judge’s denial of the parties’ joint motion to
reconsider. The joint motion to reconsider presented the same arguments as
previously addressed regarding the Immigration Judge’s rejection of the
parties’ joint stipulation. As we have determined that the Immigration Judge
did not err in rejecting the joint stipulation and have affirmed the denial of
CAT protection, the joint motion to reconsider did not demonstrate any error

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of fact or law in the Immigration Judge’s March 25, 2024, decision. See
8 C.F.R. § 1003.2(b)(1) (2025).
ORDER: 	The 	respondent’s 	appeal 	of 	the 	Immigration 	Judge’s
March 25, 2024, decision denying deferral of removal under the CAT is
dismissed.
FURTHER ORDER: 	The respondent’s appeal of the Immigration
Judge’s May 1, 2024, decision denying the motion to reconsider is dismissed.