Law360 (August 31, 2026, 7:20 PM EDT) -- The Ninth Circuit has faulted the Board of Immigration Appeals for creating a "quantitative evidence" requirement in assessing a Salvadoran's bid under the Convention Against Torture to avoid deportation to El Salvador, saying that no such requirement exists.

Granting Alfredo Parada Calderon's bid to reopen his case, a divided three-judge panel said Friday that BIA regulations require the board to consider "all" types of evidence in making an individualized determination whether it would be more likely than not that a noncitizen would be tortured upon removal. In denying Parada's bid to include new evidence on the Salvadoran government's treatment of deportees, the BIA invoked the appeals court's 2021 ruling in Benedicto v. Garland , which held in part that "anecdotes — no matter how disturbing — can't substitute for quantitative evidence, which is what CAT requires."

But that line was "taken out of context," U.S. Circuit Judge Kim McLane Wardlaw wrote for the panel majority, saying the Ninth Circuit was "merely summarizing the 'more likely than not standard.'"

"The BIA's disregard of the unambiguous language of the regulations imposed a nearly insurmountable burden on Parada by requiring him to produce statistics of torture in El Salvador that likely do not exist or, if any do exist, are likely unreliable," Judge Wardlaw said. "Congress did not create a bespoke evidentiary standard whereby noncitizens must come into court armed with reports prepared by statisticians and country conditions experts prognosticating about the noncitizen's exact numerical likelihood of being tortured."

The BIA also failed to properly consider three expert reports detailing the conditions in El Salvador after the administrative record in Parada's case closed in February 2024, Judge Wardlaw further wrote, saying the reports relied on evidence that couldn't have been available in his original hearing, including a human rights organization's report detailing the Salvadoran government's torture of prisoners. 

"As the expert reports and country conditions evidence make clear, human rights abuses, up to and including torture and extrajudicial killings, are the modus operandi of Salvadoran prisons," she said. "Parada's individualized evidence of his likelihood of future torture, including expert reports considering his unique characteristics — such as his criminal history, association with multiple international gangs that are rivals of Salvadoran gangs, and tattoos — is sufficient to establish prima facie eligibility for protection under CAT."

Throughout Friday's opinion, the panel majority also credited various amici curiae for their input on the "increasingly common and erroneous practice" of requiring quantitative evidence, including input from many former immigration judges and appellate immigration judges. 

In his dissent, U.S. Circuit Judge Carlos Bea said the BIA "did nothing more than recite verbatim a passage" of Benedicto v. Garland.

The BIA was "simply commenting on the evidentiary weight of Parada's evidence and explaining that his case might have been strengthened by more quantitative evidence of torture, rather than anecdotal accounts from current and former detainees," he said.

As for the expert reports Parada has sought to include, Judge Bea said that the new evidence Parada has offered is duplicative of what was already before the immigration judge and that the panel majority "ignores the realities of immigration proceedings."

"The judges of the BIA are often overworked, tasked with deciding an ever-growing backlog of appeals," he said. "Recognizing these circumstances, we do not require the BIA to 'discuss each piece of evidence submitted,' so long as its decision indicates that it has considered all the evidence."

According to Friday's opinion, Parada is a former member of a gang that is a rival of the two largest gangs in El Salvador, one of which is MS-13. He was convicted of shooting at MS-13 gang members and served nearly 35 years in prison. During his time in prison, he became affiliated with the Mexican Mafia and is covered in tattoos that are readily identifiable as gang-related, the decision said.

Parada was placed in removal proceedings in 2023, and the underlying immigration judge first rejected his bid for protection under the CAT in February 2024. After the BIA initially found that the immigration judge failed to properly consider certain country conditions evidence and an expert report, the immigration judge ultimately denied Parada's CAT protection application and denied his request to reopen the record on remand. On another appeal before the BIA, the board similarly rejected Parada's bids to reopen his case, along with other forms of relief from removal to El Salvador, prompting the present appeal.

On Friday, Judge Wardlaw further responded to Judge Bea's dissent, saying it "insists that the BIA has not done exactly what the agency said that it did: reject strong evidence of Parada's likelihood of future torture because the evidence took a particular form — documentary evidence, rather than statistical evidence." The dissent also makes excuses for the BIA, she added, saying the large backlog of immigration cases is "no excuse" for ignoring highly probative evidence.

"By dismissing Parada's voluminous and individualized evidence of his risk of torture as merely anecdotal, the dissent follows the well-trodden path of error blazed by many immigration judges in recent years," she said. "Today's decision rights the course."

The court also decided Friday that Parada's separate appeal over the denial of his bids for asylum, withholding of removal and protection under the CAT is moot, in light of its ruling on the BIA's denial of his motion to reopen the removal proceedings.

U.S. Circuit Judges Kim McLane Wardlaw, Carlos T. Bea and Gabriel P. Sanchez sat on the panel for the Ninth Circuit.

Representatives for the parties did not immediately respond to a request for comment Monday.

Parada is represented by Genna E. Beier, Sean L. McMahon, Matt Gonzalez and Manohar Raju of the Office of the San Francisco Public Defender.

The federal government is represented by Anne R. Burley, Jennifer P. Williams, Song Park and Brett A. Shumate of the U.S. Department of Justice.

The case is Parada Calderon v. Blanche, case numbers 24-7433 and 25-2204, in the U.S. Court of Appeals for the Ninth Circuit.

--Editing by Rich Mills.

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