Appeals Court Blocks Deportation In MS-13 Case, Rules Against AG Pam Bondi On ‘Torture’ Standard
A federal appeals court has vacated the deportation order of a former gang member, ruling on Monday that immigration authorities failed to properly consider whether the Guatemalan government would turn a blind eye to his torture in prison. The decision serves as a legal defeat for the office of U.S. Attorney General Pam Bondi, the named respondent in the case.
The petitioner, identified only as B.G.S., is a native of Guatemala who entered the U.S. in 2021. He sought protection under the Convention Against Torture (CAT), testifying that he had been marked for death by MS-13 after leaving the gang. B.G.S. told the court he joined the gang at age eight but attempted to cut ties as an adult, resulting in a ritualized “13-second” beating and subsequent assassination attempts.
Key to his claim was a visible tattoo on his back—”La mano del Hueso”—which identifies him as a gang member. B.G.S. argued that because there is an active warrant for his arrest in Guatemala, he would inevitably be sent to a prison system controlled by gangs, where rivals or former associates would target him while guards looked the other way.
Immigration judges initially denied his request. They argued that while Guatemalan prisons are “harsh and life-threatening,” the violence stems from a lack of resources and negligence rather than specific government intent to torture.
The Second Circuit Court of Appeals disagreed. In the majority opinion, Judge Robinson wrote that the lower courts “conflated” general prison conditions with the specific legal concept of “acquiescence.” The court held that the agency failed to ask the right question: not whether the prison is bad, but whether officials would knowingly allow private actors—specifically MS-13 members inside the prison—to torture B.G.S.
“It’s not enough to describe the risk of harm B.G.S. would face in prison as the product of ‘negligence and lack of resources,’” the court wrote, ordering the Board of Immigration Appeals to re-evaluate the case.
Circuit Judge Sullivan filed a dissenting opinion, arguing that the agency had sufficiently reviewed the evidence and determined the Guatemalan government was not “willfully blind” to prison violence, but simply overwhelmed.
The case has been remanded for further proceedings to determine if the government’s inability to control prison gangs amounts to acquiescence to torture.
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