Marlon McDougall v. Pamela Bondi

• Court: Court of Appeals for the Fourth Circuit
• Decided: September 5, 2025
• Docket: 23-1722
• Status: Published

Opinion

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PUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 23-1722

MARLON IAN MCDOUGALL, a/k/a Marlon Ian McDougal,

Petitioner,

v.

PAMELA JO BONDI, Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals.

Argued: December 10, 2024 Decided: September 5, 2025

Before DIAZ, Chief Judge, and AGEE and RICHARDSON, Circuit Judges.

Petition for review granted; vacated and remanded by published opinion. Chief Judge Diaz wrote the opinion, in which Judge Agee and Judge Richardson joined.

ARGUED: Aimee Leah Mayer-Salins, AMICA CENTER FOR IMMIGRANT RIGHTS, Washington, D.C., for Petitioner. Jaclyn Georgette Hagner, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON BRIEF: Brian M. Boynton, Principal Deputy Assistant Attorney General, David J. Schor, Senior Litigation Counsel, Remi O. da Rocha-Afodu, Office of Immigration Litigation, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. USCA4 Appeal: 23-1722 Doc: 56 Filed: 09/05/2025 Pg: 2 of 12

DIAZ, Chief Judge:

Marlon McDougall petitions for review of an order of the Board of Immigration

Appeals that denied his claim for protection under the Convention Against Torture. The

Board concluded that McDougall wasn’t entitled to deferral of removal because he failed

to show that Guyanese officials would specifically intend to torture him, or that the

Guyanese government would acquiesce to his torture by others.

McDougall argues that the Board erred by ignoring relevant evidence and

misapplying the definition of torture. We agree with his first argument, so we leave his

second for another day.

Accordingly, we grant the petition for review, vacate the Board’s decision, and

remand to the agency for further proceedings.

I.

A.

Marlon McDougall (who is Black) is a native and citizen of Guyana. He entered

the United States as a lawful permanent resident when he was seven months old, and he

has lived here ever since.

McDougall had a difficult childhood; he was physically abused and dealt with

depression, anxiety, and substance abuse. As an adult, he began to experience severe

paranoia and auditory and visual hallucinations. Until several years ago, his mental illness

went untreated.

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In 2006, McDougall was arrested on numerous charges—hit and run, eluding,

carjacking, burglary, and two counts of assault on a police officer—all allegedly stemming

from a psychotic episode.

He took an Alford plea.1 Though he never denied his guilt, he insisted that he

couldn’t control himself and wasn’t in his right mind. He served sixteen years in prison.

While incarcerated (and, later, while in immigration detention), McDougall

received mental health treatment and began taking medication. He was diagnosed with

schizophrenia.

McDougall also has a severe visual impairment, and knee and ankle injuries that

require him to use a wheelchair.

B.

In 2022, the Department of Homeland Security charged McDougall as removable

under 8 U.S.C. § 1227(a)(2)(A)(iii) for an aggravated felony conviction. The immigration

judge concluded that McDougall was removable based on his carjacking conviction.

McDougall sought deferral of removal under the Convention Against Torture. He

fears that if he were deported to Guyana, he would be tortured by the public (with the

government’s acquiescence) and by Guyanese officials, including the police. He claims

that these groups will target him because of his mental health issues, his physical

disabilities, his criminal history and status as a deportee, and his race. McDougall testified

1 An Alford plea permits “[a]n individual accused of crime [to] voluntarily, knowingly, and understandingly consent to the imposition of a prison sentence even if he is unwilling or unable to admit his participation in the acts constituting the crime.” North Carolina v. Alford, 400 U.S. 25, 37 (1970). 3 USCA4 Appeal: 23-1722 Doc: 56 Filed: 09/05/2025 Pg: 4 of 12

about these fears before the immigration judge and submitted evidence of the mistreatment

that members of these groups face.

Mark Tull, a psychotherapist with experience working in Guyana, testified about

the risks for mentally ill people there: There are few resources. And when the mentally ill

are mistreated, police turn a blind eye. J.A. 372. Tull predicted that “[McDougall] will

actually be a target” for such mistreatment because of his mental health issues and the fact

that he would have no support in Guyana. J.A. 199.

McDougall’s aunt submitted an affidavit about the mistreatment criminal deportees

and Black people face in Guyana.2 When she traveled there a few years ago, she “saw

people who had been deported [back to Guyana] and were killed.” 3 J.A. 365. She stated

that, in her experience, the police refuse to help Black people.

McDougall also submitted articles (1) describing poor conditions in prisons and

mental health facilities; (2) reporting instances of the police killing and abusing Black

people and those who are mentally ill or physically disabled; and (3) claiming that the

police turn a blind eye to the same acts committed by the public.

2 Guyana was first a Dutch colony and then a British one. The Dutch brought enslaved Africans to Guyana to work on plantations, and after slavery was abolished in the colony, the British brought indentured workers from India to do the same. According to the most recent national census, the Guyanese population consists of four predominant ethnic groups: roughly 40% of the population is East Indian, 30% is of African descent, 20% is multiethnic, and 10% is Indigenous. CIA, Guyana, The World Factbook, https://www.cia.gov/the-world-factbook/countries/guyana [https://perma.cc/ 4LVK-ZG2R] (2012 estimates). An “ethnocultural divide has persisted” between the two largest groups. Id. 3 McDougall also learned that his criminal history was in the news in Guyana and that a man had threatened him. 4 USCA4 Appeal: 23-1722 Doc: 56 Filed: 09/05/2025 Pg: 5 of 12

C.

The immigration judge denied McDougall’s claim. Though the judge found Tull

and McDougall credible, she concluded that McDougall failed to show that it was more

likely than not that he’d be tortured in Guyana.

First, the judge found that the Guyanese police don’t “actively seek to harm

mentally ill persons or torture them.” J.A. 107. And (in her view) the evidence didn’t

support “government acquiescence [given that] officials who are accused of wrongdoing

are subsequently investigated for such misconduct.” J.A. 107.

Second, she concluded that because a lack of training and mental health resources

was a problem when police encountered individuals with mental illnesses, the evidence

didn’t support that police would torture McDougall because of his mental health issues.

Finally, the immigration judge acknowledged that some Guyanese “believe there is

a connection between evil spirits and mental health” and that the mentally ill face

discrimination there. J.A. 108. Even so, the judge found that the record didn’t support the

conclusion that McDougall would be tortured by members of the public (or, if incarcerated,

by other inmates) or that the government would acquiesce in such torture.

Accordingly, the immigration judge denied protection under the Convention and

ordered McDougall deported to Guyana.

D.

McDougall appealed to the Board of Immigration Appeals. He argued (as relevant

here) that the immigration judge committed two errors. First, the immigration judge

focused only on the likelihood of torture related to mental illness and failed to consider

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(and thus failed to aggregate) evidence of a likelihood of torture for the other reasons

McDougall asserted—his race, his status as a criminal deportee, and his physical

disabilities. Second, the judge misapplied the regulatory definition of torture.

The Board affirmed. Like the immigration judge, the Board focused only on

potential torture related to McDougall’s mental illness.

The Board found “no clear error in the . . . finding that [McDougall hadn’t] shown

any public official in Guyana would specifically intend to torture him” because he is

mentally ill. J.A. 4. In its view, the Guyanese government’s efforts to provide additional

mental health resources and training supported the immigration judge’s finding that “any

harm that may befall [McDougall] would not be specifically intended to torture him.” J.A.

5. Instead, said the Board, the record showed “that the Guyanese police inflict harm due

to a lack of awareness of mental illness and sufficient training to deal with its

manifestations.” J.A. 5.

According to the Board, McDougall also failed to establish that the Guyanese

government would acquiesce to his torture by the public. The Board found that “[w]hile

cultural norms in Guyana may stigmatize mental illness, [McDougall]’s cited evidence that

crime victims often violently beat criminals in Guyana establishes only a speculative and

generalized fear of harm from the public, not a particularized risk of torture by or with the

acquiescence of the government.” J.A. 6–7. And McDougall failed to provide “any other

persuasive evidence that the Guyanese government would fail to intervene if made aware

of his torture.” J.A. 7.

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The Board rejected McDougall’s appeal, and this petition for review followed.4

II.

Where, as here, the Board “issue[s] its own detailed opinion affirming the

[immigration judge] with further reasoning of its own but without expressly adopting the

[immigration judge]’s opinion,” we review only the Board’s decision.5 Wambura v. Barr,

980 F.3d 365, 368 n.2 (4th Cir. 2020).

We may consider both legal and factual challenges to the Board’s decisions under

the Convention Against Torture. Nasrallah v. Barr, 590 U.S. 573, 576 (2020). We review

factual findings for substantial evidence, meaning those findings “are conclusive unless

any reasonable adjudicator would be compelled to conclude to the contrary.” Id. at 584

(quoting 8 U.S.C. § 1252(b)(4)). We review legal questions de novo. Lopez-Sorto v.

Garland, 103 F.4th 242, 253 (4th Cir. 2024).

Factual findings include the agency’s predicted outcome after removal—its

assessment of “what will likely happen to [McDougall] if he returns to [Guyana].” Turkson

v. Holder, 667 F.3d 523, 529 (4th Cir. 2012). Legal questions include “whether the agency

applied the correct legal standard to determine the likelihood of torture,” Lopez-Sorto, 103

4 The Government asserts that the petition for review is timely under 8 U.S.C. § 1252(b)(1). We accept that admission, as § 1252(b)(1)’s deadline isn’t jurisdictional, and the Government doesn’t seek dismissal on that ground. Riley v. Bondi, 145 S. Ct. 2190, 2203–04 (2025). 5 Even if we were to consider the immigration judge’s opinion, it suffers from the same flaws as the Board’s opinion. 7 USCA4 Appeal: 23-1722 Doc: 56 Filed: 09/05/2025 Pg: 8 of 12

F.4th at 253, and whether the agency’s predicted outcome “amounts to ‘torture,’” Turkson,

667 F.3d at 529.

We may “overturn the [Board]’s determinations if we conclude that [it] abused its

discretion.” Rodriguez-Arias v. Whitaker, 915 F.3d 968, 972 (4th Cir. 2019). The Board

abuses its discretion when it “fails to offer a reasoned explanation for its decision” and

when “it distorts or disregards important aspects of the applicant’s claim.” Portillo Flores

v. Garland, 3 F.4th 615, 626 (4th Cir. 2021) (en banc) (citation omitted). It’s also an abuse

of discretion for the Board to “arbitrarily ignore relevant evidence” or commit a legal error.

Id. at 634–35 (citation omitted).

III.

To warrant protection under the Convention, an applicant must “establish that it is

more likely than not that he or she would be tortured if removed to the proposed country

of removal.” 8 C.F.R. § 1208.16(c)(2). Because McDougall asserts multiple potential

reasons why he is likely to be tortured, he’s entitled to protection so long as “the cumulative

probability of torture by all entities, or for all reasons, exceeds 50%.” Kouyate v. Garland,

122 F.4th 132, 142 (4th Cir. 2024) (cleaned up), cert. denied, No. 24-6792, 2025 WL

1426729 (U.S. May 19, 2025).

“Torture” is defined as

any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as . . . punishing him or her for an act he or she or a third person has committed or is suspected of

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having committed, intimidating or coercing him or her or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by, or at the instigation of, or with the consent or acquiescence of, a public official acting in an official capacity or other person acting in an official capacity. . . .

8 C.F.R. § 1208.18(a)(1). Breaking that down, a person commits an act of torture by (i)

inflicting “severe [physical or mental] pain or suffering,” id., (ii) with the “specific[]

inten[t] to inflict severe physical or mental pain or suffering,” id. § 1208.18(a)(5), (iii) for

a prohibited purpose, and (iv) the person acts either in an official capacity, i.e., “under color

of law,” or not in an official capacity but with the consent or acquiescence of a person

acting in an official capacity, id. § 1208.18(a)(1).

Essentially, McDougall must show two things under the Convention: First, that “it

is more likely than not that if removed [he] will suffer future mistreatment—that is, [he]

will endure severe pain or suffering that is intentionally inflicted.” Alvarez Lagos v. Barr,

927 F.3d 236, 246 (4th Cir. 2019) (cleaned up). Second, “that this likely future

mistreatment will occur at the hands of government [officials] or with the consent or

acquiescence of government [officials].” Id. (cleaned up).

McDougall argues that the Board failed to consider three of his specific claims (and

accompanying evidence) of an increased risk of torture in Guyana for Black people, people

with physical disabilities, and deportees with criminal records. He also claims that the

Board misapplied the Convention’s torture definition.

We agree that the agency ignored relevant evidence relating to McDougall’s claims

based on race, physical disability, and criminal-deportee status. This was an abuse of

discretion, so we grant the petition for review and vacate and remand on that basis.

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In reviewing a claim under the Convention, the agency must consider “the full

panoply of the risk-of-torture evidence” an applicant has submitted—including evidence

of multiple sources of torture and reasons for torture. Garcia v. Garland, 73 F.4th 219,

233 (4th Cir. 2023) (cleaned up); see also 8 C.F.R. § 1208.16(c)(3). It’s reversible error

for the agency to “arbitrarily ignore relevant evidence.” Rodriguez-Arias, 915 F.3d at 974.

Of course, the agency isn’t “required to discuss every piece of evidence in the

record.” Lopez-Sorto, 103 F.4th at 256 (cleaned up). But its decision must show that it

considered the applicant’s evidence, and offer “a cogent, articulable basis” for setting aside

relevant evidence or finding the evidence as a whole insufficient. Rodriguez-Arias, 915

F.3d at 975.

McDougall argues that the Board ignored unrebutted evidence that those who share

certain traits of his—Black people, people with disabilities, and criminal deportees—face

an increased likelihood of torture in Guyana.

We agree. Though McDougall fears torture related to his mental illness (which the

Board did address), he also fears torture for these other reasons. And he presented evidence

and arguments in support of those reasons.

McDougall testified that he feared he would be targeted and tortured by police and

by members of the public because he’s a deportee, has physical disabilities, and is Black.

He explained that he had learned his criminal history was “all over the news” in Guyana

and that people were “waiting for him.” J.A. 333–34.

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He submitted evidence of heinous acts of violence committed by the police and the

public against individuals like him, and accounts of the government’s willingness to turn a

blind eye to the latter.

Yet the Board (and the immigration judge) focused solely on the likelihood of

torture on account of McDougall’s mental illness. Indeed, the Board’s decision doesn’t

mention McDougall’s argument (and accompanying evidence) that he will be tortured

because he’s a Black criminal deportee with physical disabilities. While the Board did

address McDougall’s contention that his mental illnesses would lead to his torture, it was

not free to ignore those other “important aspects of [McDougall’s] claim.” Tassi v. Holder,

660 F.3d 710, 719 (4th Cir. 2011).

The Government, resisting this conclusion, points to two statements from the

Board’s decision: its conclusions that the immigration judge (1) addressed “evidence of

police violence in finding that [police] do not” “intentionally harm people with mental

health issues on account of discrimination and social stigma” and (2) didn’t clearly err in

“finding the government does not intend to torture its citizens.” Respondent’s Br. at 38

(emphases in original).

Despite the Government’s artful italicization, its reading of both statements is

wrong. In context, the statements refer to torture related to mental illness. Neither shows

that the Board considered risk-of-torture evidence that was unrelated to mental illness or

offers a “specific, cogent reason[] for disregarding [that] credible, significant, and

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unrebutted evidence.” Orellana v. Barr, 925 F.3d 145, 152 (4th Cir. 2019). Nor does the

rest of the Board’s opinion.6

By ignoring this evidence, the Board “disregard[ed] important aspects of

[McDougall]’s claim” and abused its discretion. Portillo Flores, 3 F.4th at 626 (citation

omitted). This error alone is sufficient for us to vacate and remand, so we don’t address

McDougall’s argument that the Board misapplied the regulatory definition of torture.

* * *

McDougall has alleged that he would be tortured if deported to Guyana because of

his mental illness and other characteristics, including his race, physical disabilities, and

criminal-deportee status. In determining whether the aggregate risk of torture is sufficient

for relief, the agency must take care to address all of McDougall’s evidence and apply the

definition of torture precisely to each claim. And it must announce its decision in terms

sufficient to assure a reviewing court that it has done so.

Because the Board fell short here, we grant McDougall’s petition for review, vacate

the Board’s decision, and remand for further proceedings consistent with this opinion.

PETITION GRANTED; VACATED AND REMANDED

6 The Government also highlights the immigration judge’s statement that she “considered the harm from all sources in the aggregate.” Respondent’s Br. at 37. Because we’re reviewing only the Board’s decision, the immigration judge’s statement is inapposite. Even if we were to consider it, this “boilerplate language” is “insufficient to demonstrate that the agency gave [the evidence] more than perfunctory consideration.” Ai Hua Chen v. Holder, 742 F.3d 171, 181 (4th Cir. 2014).