D-J-L-: An Expert’s Past Advocacy, and a Torture Protection the Board Took Away

A man with a head injury, migraines and mental illness faced removal to Haiti. An immigration judge found that Haitian authorities would hold him indefinitely, that he could not buy his way out, and that he would more likely than not be starved, denied care and tortured. She granted him protection under the Convention Against Torture. The judge leaned hardest on one witness: the founder of a nonprofit that helps deportees in Haiti.

The Board of Immigration Appeals took the protection away. It accepted that the expert knew her field. It then held that the judge clearly erred by giving her significant weight, because the expert had advocated against deportations to Haiti and, in the Board’s view, could not assess them impartially.

The decision is Matter of D-J-L-, 29 I&N Dec. 485, Interim Decision #4168 (BIA Mar. 5, 2026). It is a warning to anyone building a torture claim around an advocate who knows the country best. And the Ninth Circuit has already reviewed a Board reversal of a grant that rested on this same witness.

A judge granted protection on the strength of one witness

D-J-L- was a citizen of Haiti with a reinstated removal order, seeking deferral of removal, the form of Convention protection that bars removal to a particular country and confers no status. He argued that a criminal deportee with mental illness would be detained indefinitely, would decline without care, would be singled out by officials and would be attacked by gangs with the government’s acquiescence.

After a 2024 remand, the judge granted deferral on March 24, 2025. She found he had not been tortured before, but that his return would be far more dangerous: He could not bribe his way out of detention, his illnesses would mark him for the worst abuse, and his behavior could be read as dangerous. She concluded that the combined conditions amounted to torture by the Haitian government. She also found a public official would likely acquiesce if gangs attacked him after release.

The evidence behind those findings came largely from Michelle Karshan, founder and executive director of a nonprofit that assists deportees in Haiti. The judge qualified her as an expert, found her declaration reliable and probative, and relied heavily on her testimony. DHS appealed on that ground.

Qualified to testify is not the same as persuasive

Immigration courts admit evidence generously. The test is whether it is probative and fundamentally fair, and an expert is anyone whose knowledge or experience will help the judge. Matter of D-R-, 25 I&N Dec. 445 (BIA 2011), set that low bar. Getting through the door was never D-J-L-’s problem.

Weight is where experts lose. Matter of J-G-T-, 28 I&N Dec. 97 (BIA 2020), requires “a reliable factual or evidentiary basis” before a judge may find an opinion persuasive, and it faulted a judge for giving “significant weight” to a witness testifying beyond his field and against the State Department’s reports. Matter of M-A-M-Z-, 28 I&N Dec. 173 (BIA 2020), added that expert testimony “is evidence, but only an Immigration Judge makes factual findings.”

Weight is therefore a factual call, and the Board’s review of it is limited to clear error. M-A-M-Z- describes that standard narrowly: Findings fall only if “illogical or implausible” or without support in inferences from the record. A month before D-J-L-, Matter of G-M-I-, 29 I&N Dec. 431 (BIA 2026), used that same review to reject an expert whose examples did not match the claim. Our G-M-I- analysis walks through that source check. D-J-L- asks a different question: not whether the sources fit, but whether the witness can be trusted to read them fairly.

The article that came up on cross-examination

DHS objected to the expert from the start, arguing that she had advocated that no criminal deportees be returned to Haiti. On cross-examination, DHS confronted her with an article she had coauthored calling for all deportations to Haiti to stop. She conceded there were periods when she believed the United States should have stopped all deportations there.

The Board drew a line. Some bias is ordinary: An expert who testifies only for plaintiffs or only for defendants may still be heard. The Board then announced its rule: “[W]here an expert witness’ background and testimony reflect a reluctance to consider contrary evidence and an inability to impartially assess matters involving the removal of persons to a given country, an Immigration Judge errs in giving the testimony of that witness significant weight.”

The judge’s mistake, the Board said, was failing to give sufficient credit to DHS’s evidence of bias and failing to adequately consider how her advocacy could taint her opinion.

What the Board actually pointed to

Read the opinion closely and the rule is broader than its evidence. The rule speaks of a witness reluctant to consider contrary evidence. The opinion reports a coauthored article and a concession about “periods of time.” When the Board applied its rule, it found only “an inability to impartially assess” removals to Haiti, and it dropped the reluctance half. It does not describe a document she refused to consider, a question she would not answer or a contrary report she dismissed. That is our reading, and it matters: A person defending this kind of expert should insist on the difference between holding a view about deportation policy and refusing to weigh evidence about one person’s case.

In our view, the Board’s second complaint is sturdier. It wrote that she said torture was rampant at police stations and prisons throughout Haiti “but did not cite sufficient evidence.” It found her prediction that this man would be isolated, beaten, abandoned, enslaved or sexually abused because of his condition was not adequately supported. That is a J-G-T- foundation problem, and, as we read it, it does not depend on bias.

The Board’s other reasons

The Board then turned to the judge’s other conclusions. Two kinds of question are mixed together here. What is likely to happen to a person is a fact question, reviewed for clear error. Whether that harm is torture is a legal question, reviewed without deference, under Matter of R-A-F-, 27 I&N Dec. 778 (A.G. 2020). The detention point below is the legal one. The points about reports of harm and gangs concern likelihood, and there the Board said the judge “erred,” not the “clearly erred” it used about the expert. That difference in wording could matter on review.

Detention. Even assuming indefinite detention, the Board relied on Matter of J-E-, 23 I&N Dec. 291 (BIA 2002), which held that indefinitely detaining criminal deportees in substandard Haitian prisons is not torture without evidence that authorities do it deliberately to inflict torture. Bad conditions alone do not carry the claim. Intent does.

Reports of harm. The expert’s declaration cited reports of inadequate food and deaths in custody. The Board called these “a relatively small number of anecdotal incidents,” quoting Matter of A-A-F-V-, 29 I&N Dec. 118 (BIA 2025), and required a showing that torture is so common he would personally experience it, drawing on Matter of J-R-G-P-, 27 I&N Dec. 482 (BIA 2018).

Gangs. The finding that gangs would seriously harm him was, the Board wrote, “primarily tethered” to the expert, with no other objective support sufficient to sustain it. General risk was not enough. It also pointed to Matter of S-S-, 29 I&N Dec. 136 (BIA 2025), a similar Haiti detention case involving mental illness.

No remand and no late evidence

D-J-L- attached an April 2025 article to his reply brief, saying the United Nations could no longer fund assistance for all deportees in Haiti. It postdated the judge’s decision, so it was new. But the Board does not usually take evidence for the first time on appeal, and it found he had not shown the article would likely change the result.

The Board sustained DHS’s appeal and vacated the grant. It did not send the case back for the judge to reconsider with the expert discounted. It stated that he would be removed to Haiti under his reinstated order. J-G-T- had gone the other way: After a judge overcredited an expert, the Board remanded because of its “limited fact-finding ability on appeal.”

The Ninth Circuit has seen this witness before

A California case has more to work with than the Board’s opinion suggests. In 2012, the Ninth Circuit decided Ridore v. Holder, 696 F.3d 907 (9th Cir. 2012). It was another Haitian deportee and another judge granting Convention protection, and the same expert, Michelle Karshan, “upon whom the IJ extensively relied.” The Board reversed that grant too, citing J-E-. The Ninth Circuit granted review and remanded: “The BIA cannot, under a clear error standard of review, override or disregard evidence in the record and substitute its own version of reality.”

Ridore did not address bias, and D-J-L- does not cite it. What Ridore does is fix the method. Drawing on a Third Circuit decision, it separates what is likely to happen to a person, a fact question, from whether that is torture, a legal one. The Board must explain why a finding was clearly wrong or, if facts are missing, send the case back. Guerra v. Barr, 974 F.3d 909 (9th Cir. 2020), another Convention deferral for a person with serious mental illness that the Board reversed, adds three points. Saying “clear error” does not make it so, because the court checks whether the Board actually applied that standard. The Board may not reweigh evidence when the judge’s account is plausible. And the Board errs when it does not consider “the aggregate risk” a person faces, which is worth raising where, as here, it took detention, reports of harm and gangs one at a time. Cole v. Holder, 659 F.3d 762 (9th Cir. 2011), requires reasoned consideration of potentially dispositive expert testimony in a Convention claim.

The obvious argument in the Ninth Circuit is that discounting an expert for her policy views is reweighing dressed as clear error. The government’s answer will be that the Board named a specific reason and that the J-E- ground stands regardless. Ridore itself recognized that the Ninth Circuit has deferred to J-E- on specific intent. But Guerra also treats a judge’s finding of specific intent as factual, which means a well-built record on intent can survive. Ridore also held that the Board cannot simply repeat J-E- when a judge has found that conditions have worsened or that this person’s circumstances differ. It noted that J-E- involved holding people for weeks and turned on a failure of proof. A record showing how long this person would be held, and why, is what distinguishes J-E-.

Timing can decide whether any of that is heard. Nasrallah v. Barr, 590 U.S. 573 (2020), lets courts review factual challenges to Convention rulings even for people with certain criminal convictions, under a deferential standard. Riley v. Bondi, 606 U.S. 259 (2025), holds that a Board order in a withholding-only proceeding is not a final order of removal. The 30 days run from the removal order itself, so filing within 30 days of the Board’s order does not satisfy the deadline, though the deadline is not jurisdictional. Anyone with a reinstated order and an adverse Board decision should get advice about the deadline immediately.

How to keep an expert from becoming the weak point

• Disclose the advocacy first. Put the résumé, articles and public statements into the record and address them on direct. J-G-T- notes that a proposed expert’s résumé belongs in the record, and it favors questioning about qualifications before substantive testimony.
• Make the expert confront the contrary evidence. Have the witness name the State Department report or other source that cuts against the opinion and explain why the conclusion holds. J-G-T- faulted a judge who did not explain why an expert was more reliable than those reports. That testimony is also the best answer to a charge that the witness will not consider the other side.
• Separate policy views from case-specific opinion. A witness can believe deportations should stop and still explain what the evidence shows about this person. Ask directly whether she would reach the same opinion for someone in a different position.
• Source every prediction. Each claim about detention, abuse or gang targeting should trace to a named report or observation, and each should connect to this person’s condition and circumstances.
• Do not let one witness carry the case. “Primarily tethered” was fatal. Add medical records, country reports and other witnesses on the same points.
• Prove intent, not only misery. After J-E-, deplorable conditions need evidence that officials intend the suffering.
• Ask for findings. If DHS raises bias, ask the judge to address it expressly and explain the weight given. A reasoned finding is much harder to call clear error.

Later developments. After this analysis’s March 18, 2026 date, the Ninth Circuit held in Navarrete v. Blanche, No. 24-2776 (9th Cir. Mar. 23, 2026, amended Nov. 6, 2026) that a petition advancing only a standalone Convention claim does not invoke the court’s jurisdiction. Such a claim can be heard only as part of review of a final order of removal, which is why the 30-day point above matters: The Board’s later Convention ruling does not start a new clock.