The respondent in the case was admitted to the U.S. in 1981 as a lawful permanent resident.  In 1998 he was convicted of grand theft, resisting arrest, driving with a suspended license, and robbery.  The Immigration and Naturalization Service initiated removal proceedings against the respondent, and an immigration judge ordered him removed in a decision the BIA upheld in May 1999.  He subsequently filed a motion to reopen his case, seeking withholding and deferral of removal under the CAT.

A majority of the BIA found that the respondent’s robbery conviction, for which he was sentenced to four years’ incarceration, constitutes a "particularly serious crime" that renders him ineligible for withholding.  The BIA also found that the respondent had not presented a prima facie case showing that his fear of persecution was "on account of" race, religion, nationality, membership in a social group, or political opinion.

Regarding the respondent’s eligibility for deferral of removal under the CAT, the BIA noted that, unlike withholding of deportation, eligibility under the CAT does not depend on the motive of the would-be torturers.  However, the BIA found that the respondent failed to establish that the forces he fears are acting "at the instigation of or with the consent or acquiescence of" Colombian officials, as required by 8 C.F.R. section 208.18(a)(1).  The BIA concluded that "the respondent must do more than show that the officials are aware of the activity constituting torture but are powerless to stop it."  Rather, he must demonstrate that officials "are willfully accepting of the guerrillas’ torturous activities."

BIA members Gustavo Villageliu, Paul Schmidt, John Guendelsberger, Anthony Moscato, and Lory Rosenberg signed onto concurring and/or dissenting opinions.  They objected to, among other things, the majority’s narrow interpretation of CAT eligibility.