(DENMARK) — A new European push to accelerate deportations, paired with Denmark’s call to reinterpret the European Convention on Human Rights (ECHR), is colliding with a long-settled U.S. immigration principle: even when governments tighten removal policies, deportation cannot proceed where the record shows a “more likely than not” risk of torture.
That standard—best known in U.S. immigration court as protection under the Convention Against Torture (CAT)—was clarified in Matter of J-F-F-, 23 I&N Dec. 912 (A.G. 2006). The Attorney General held that an applicant cannot establish CAT eligibility through a speculative chain of possible events. Each step in the feared sequence must be supported by evidence showing it is more likely than not to occur. Practically, the decision remains one of the most cited tools DHS uses to challenge CAT claims in deportation cases, especially where the fear theory depends on multiple contingencies.
This case law is newly relevant as the EU reports a sharp rise in deportations and explores “return hubs” outside the bloc, while Denmark signals it is prepared to “adjust the balance” in ECHR-based limits on expulsion. Even though U.S. courts do not apply the ECHR, the legal tension is familiar on both sides of the Atlantic: states seeking faster removals, and litigants insisting that human-rights limits still apply.
The holding—and why it matters now
In Matter of J-F-F-, the Attorney General emphasized that CAT protection under U.S. law requires a probability finding, not a mere possibility. Where the applicant’s theory depends on a chain—detention → interrogation → abuse → torture—evidence must establish that the chain, taken as a whole, is more likely than not to happen. A weak link can defeat the claim.
CAT is implemented in removal proceedings through regulations at 8 C.F.R. §§ 1208.16–1208.18. Unlike asylum under INA § 208, CAT protection is mandatory if the standard is met. It also has no statutory bars for many criminal convictions that block asylum, so for people facing deportations after criminal sentences, CAT can be the last available protection.
That makes J-F-F- a doctrinal pressure point: it gives immigration judges and DHS a basis to deny CAT where the record shows only generalized country conditions or speculative personal risk.
Key facts that drove the decision
Matter of J-F-F- arose from a Haitian national’s claim that, if removed, a sequence of events would likely culminate in torture. The theory depended on several predictions about how Haitian officials would treat him upon return.
The Attorney General concluded the evidence did not establish that each necessary step was more likely than not. In other words, the claim required an assumption stacked on another assumption. The decision warned that CAT cannot be proved by “stringing together a series of suppositions” without probability evidence at each stage.
Importantly, the decision did not require direct proof of an intent to torture by a specific named official. But it did require a concrete, evidence-based probability that the applicant would end up in circumstances where torture is likely, with government involvement or acquiescence as defined by regulation. See 8 C.F.R. § 1208.18(a).
How the precedent affects future deportation cases
1) CAT claims must be built around probabilities, not narratives
Many CAT cases begin as compelling narratives. The risk may be real, but hard to quantify. J-F-F- forces counsel to translate narrative into probability evidence.
Practical elements of a strong CAT record include:
– Expert declarations explaining return-processing, detention patterns, and risk profiles.
– Documentation on who is detained on arrival and for how long.
– Facility-specific evidence about conditions and abuse, not just countrywide reports.
– Proof linking the applicant’s profile to a likely pathway into custody.
Where the record relies only on generalized instability, J-F-F- often proves decisive.
2) Criminal-removal cases face sharper scrutiny
Denmark’s announced focus on deporting noncitizens convicted of serious crimes echoes a familiar U.S. reality: criminal convictions are common in removal dockets. In the United States, asylum and withholding may be barred by certain convictions, but CAT may remain available. See 8 C.F.R. § 1208.16(d) (bars affecting asylum and withholding, not CAT in the same manner).
Consequently, the government often fights CAT aggressively, and J-F-F- is frequently used to argue that incarceration abroad, discrimination, or harsh conditions do not automatically equal torture within the regulatory definition.
3) It shapes litigation strategy: identify the “weak link”
A practical consequence of J-F-F- is that both sides search for the weakest step in the alleged chain of events. Typical questions include:
– Will the person actually be detained upon return?
– If detained, will the detention be long enough to expose them to the asserted harm?
– If harm occurs, does it meet the legal definition of torture?
– Will it be inflicted “by, or at the instigation of, or with the consent or acquiescence of” a public official? 8 C.F.R. § 1208.18(a)(1).
A single uncertain step can sink the overall probability finding.
Warning (Evidence Trap): Country reports describing violence “in general” may not be enough. Judges often want evidence tied to the applicant’s pathway after removal, consistent with Matter of J-F-F-, 23 I&N Dec. 912 (A.G. 2006).
The EU/ECHR backdrop—and why U.S. lawyers are paying attention
Although the EU’s shift and Denmark’s ECHR posture are not binding on U.S. immigration courts, they matter practically in three ways:
- U.S. adjudicators and experts frequently cite European practice when discussing return agreements, offshore processing, and detention models. The EU’s “return hubs” proposal may create new fact patterns—removal to third countries, detention while awaiting onward deportation, and limited judicial oversight.
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U.S. cases often hinge on “safe third country” and “firm resettlement” concepts, though governed by different legal mechanisms than the ECHR. In U.S. law:
– INA § 208(a)(2)(A) addresses safe third country rules.
– Firm resettlement is set out in asylum-eligibility regulations.
These doctrines can interact with CAT because CAT focuses on the country of removal and sometimes on an alternative country DHS designates.
- Denmark’s willingness to press against ECHR interpretations highlights a broader theme: governments may seek to narrow judicial limits on deportations. In the U.S., that often appears as accelerated dockets, detention expansion, and narrower readings of humanitarian protection.
Circuit splits or conflicting authority (where it gets complicated)
While J-F-F- is widely applied, CAT jurisprudence can vary by circuit on related questions, such as:
– What counts as “acquiescence” by officials.
– How willful blindness is analyzed under 8 C.F.R. § 1208.18(a)(7).
– The level of specificity required to link country conditions to the individual.
Some circuits accept CAT claims supported by strong country-conditions evidence plus credible testimony. Others emphasize individualized proof and probability analysis. Because appeals go from the BIA to the regional federal circuit, outcomes can differ by geography.
Deadline Callout: A BIA appeal is typically due within 30 days of the immigration judge’s written order. Missing it can forfeit review. Confirm deadlines on the EOIR order and consult counsel immediately. (EOIR: https://www.justice.gov/eoir)
BIA appeals are typically due within 30 days of the judge’s order. Confirm the EOIR deadline on your order and file promptly to keep review rights intact.
Was there a dissent?
Matter of J-F-F- was an Attorney General decision rather than a multi-member BIA panel opinion. It did not include a formal dissent. The controversy has instead played out in later litigation, where advocates argue J-F-F- can be applied too rigidly, especially when governments do not publish transparent return and detention practices.
Practical takeaways for practitioners and affected families
1) Map the return pathway. Identify the likely country of removal and what happens at the airport, at booking, and during any detention. CAT cases often fail when the pathway is vague.
2) Strengthen the weakest step. If detention on arrival is the key step, prove it with documentation, expert analysis, and examples of similarly situated individuals.
3) Separate “bad conditions” from “torture.” In U.S. law, not every harsh condition qualifies. The definition is narrow and requires severe pain or suffering, plus official involvement or acquiescence. See 8 C.F.R. § 1208.18(a).
4) Do not ignore parallel relief. Even if CAT is the focus, screen for asylum, withholding, cancellation of removal under INA § 240A, and post-conviction options where appropriate. Criminal history requires careful analysis.
Action Item: If you or a family member is facing deportations and fears harm abroad, consult an immigration attorney before filing. CAT claims are evidence-heavy and time-sensitive.
In a moment when the EU is reporting higher deportation numbers and Denmark is testing the ECHR’s limits, U.S. law’s internal guardrails still matter. Matter of J-F-F- is one of the decisions that define those guardrails. It does not eliminate CAT protection, but it raises the evidentiary bar for proving the required probability.
Official resources
- USCIS Newsroom: https://www.uscis.gov/newsroom
- DHS News
- EOIR (Immigration Court): https://www.justice.gov/eoir
⚖️ Legal Disclaimer: This article provides general information about immigration law and is not legal advice. Immigration cases are highly fact-specific, and laws vary by jurisdiction. Consult a qualified immigration attorney for advice about your specific situation.
Resources:
– AILA Lawyer Referral
– Immigration Advocates Network
This article explores the rigorous evidentiary standards of the Convention Against Torture (CAT) within U.S. immigration law, specifically referencing Matter of J-F-F-. It contrasts these U.S. probability requirements with current European efforts to accelerate deportations and reinterpret human rights conventions. The text emphasizes that CAT claims must be built on evidence-backed likelihoods rather than speculative narratives, especially for noncitizens with criminal records who are barred from other relief.
