Marqus v. Barr

• Decision Date: 30 July 2020
• Docket Number: No. 18-4252,18-4252
• Citation: 968 F.3d 583
• Parties: Ammar Isam MARQUS, Petitioner, v. William P. BARR, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Sixth Circuit

968 F.3d 583

Ammar Isam MARQUS, Petitioner,

v.William P. BARR, Attorney General, Respondent.

No. 18-4252

United States Court of Appeals, Sixth Circuit.

Decided and Filed: July 30, 2020

ON BRIEF: Edward Amir Bajoka, BAJOKA LAW GROUP PLLC, Warren, Michigan, for Petitioner. Lisa Morinelli, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.

Before: MOORE, McKEAGUE, and GRIFFIN, Circuit Judges.

KAREN NELSON MOORE, Circuit Judge.

Ammar Isam Marqus petitions this court to review the decision of the Board of Immigration Appeals ("BIA") denying him deferral of removal under the Convention Against Torture ("CAT") and denying his motion to remand for consideration of new evidence. For the reasons that follow, we DENY in part and GRANT in part the petition for review, and REMAND for further proceedings consistent with this opinion.

I. BACKGROUND

Marqus is a native and citizen of Iraq and was admitted to the United States as a refugee in 2012. A.R. at 219. He later adjusted his status to Lawful Permanent Resident. A.R. at 220. In 2017, he was convicted of attempted criminal sexual conduct under MICHIGAN COMPILED LAWS § 750.520d(1)(b). A.R. at 220. As a result, the Government served him with a Notice to Appear and initiated removal proceedings. Id . His removal hearing was held on March 29, 2018, and both the Government and Marqus submitted evidence for the record. Id . Against the Government's objections, the Immigration Judge ("IJ") admitted the expert declarations of Daniel Smith, Mark Lattimer, and Shamiran Mako, but excluded the declaration of country-conditions expert Rebecca Heller. Id . at 221 n.3. On June 5, 2018, the IJ issued an opinion ordering Marqus removed to Iraq. Id . at 244. The IJ determined that Marqus was ineligible for withholding of removal under the Immigration and Nationality Act ("INA") or the CAT because the "particularly serious crime" bar applied as a result of his conviction for attempted criminal sexual conduct. Id . at 234, 240 (citing 8 U.S.C. § 1158(b)(2)(A)(ii) ; 8 C.F.R. § 1208.13(c)(1) ). The IJ also determined, based on all the evidence, that Marqus was not entitled to deferral of removal under the CAT. Id . at 235, 240 (citing 8 C.F.R. § 1208.17 ).

Marqus appealed to the BIA the IJ's evidentiary and merits rulings and sought to introduce new evidence. On November 23, 2018, the BIA dismissed his appeal and denied his request to consider new evidence, which it interpreted as a motion to remand. Id . at 3, 7. He has petitioned this court to review the BIA's dismissal of his CAT claim and its denial of his motion to remand. The existing record evidence includes expert declarations, the United States Department of State 2016 Human Rights Report on Iraq ("DOS 2016 Human Rights Report"), and the United States Department of State 2016 International Religious Freedom Report on Iraq ("DOS 2016 Religious Freedom Report"). Id . at 447. The new evidence he seeks to introduce includes an additional country-conditions expert declaration by Belkis Wille, the Department of State 2017 Human Rights Report on Iraq ("DOS 2017 Human Rights Report"), and the United States Department of State 2017 International Religious Freedom Report on Iraq ("DOS 2017 Religious Freedom Report"). See Pet. Br. at 23–25. Both 2017 reports were released after the IJ entered his order of removal.

Marqus believes that he would be tortured if he were forced to return to Iraq because he is Chaldean Christian; has spent a significant amount of time in the United States; has a criminal record; was previously tortured by and deserted from the Iraqi military; was previously targeted, abused, and threatened by the Popular Mobilization Forces ("PMF") (specifically, the El Mahdi army); and lacks the proper identification documents to travel within the country without being stopped, targeted, and tortured by the PMF. A.R. at 222–32, 240–42. The PMF is a security force that provides military support for the Iraqi government and has been known to commit human-rights abuses. Id . at 131–32. Marqus claims that he more likely than not would be interrogated and tortured by Iraqi government officials upon entry, and that he otherwise would be targeted and tortured by the PMF. Pet. Br. at 13–14.

II. CONVENTION AGAINST TORTURE

An applicant seeking CAT relief must demonstrate that she faces a particularized and likely threat of torture at the hands of a public official, or with the consent or acquiescence of a public official. 8 C.F.R. §§ 1208.16(c)(2), 1208.18(a)(1) ; Almuhtaseb v. Gonzales , 453 F.3d 743, 751 (6th Cir. 2006). Marqus challenges both the factual and legal basis for the IJ's and BIA's decisions denying him CAT relief. Previously, under Tran v. Gonzales , 447 F.3d 937 (6th Cir. 2006), we would not have had jurisdiction to review Marqus's factual challenges because he was removable for a criminal conviction listed in 8 U.S.C. § 1252(a)(2)(C). See Kilic v. Barr , 965 F.3d 469, 472, No. 19-4076, (6th Cir. July 10, 2020). But the Supreme Court recently abrogated Tran and held that the statute that precludes judicial review of factual challenges to final orders of removal for certain noncitizens does not apply to CAT claims. See Nasrallah v. Barr , ––– U.S. ––––, 140 S. Ct. 1683, 1689, 1694, 207 L.Ed.2d 111 (2020). We accordingly have jurisdiction to review Marqus's factual arguments with respect to his CAT claim. In doing so, we will review the IJ's decision to the extent that the BIA adopted its reasoning. Shaya v. Holder , 586 F.3d 401, 405 (6th Cir. 2009).

A. Factual Challenges to Denial of CAT Relief

"[W]hether the BIA correctly considered, interpreted, and weighed the evidence presented" is a question of fact. Shabo v. Sessions , 892 F.3d 237, 239 (6th Cir. 2018) (quoting Arestov v. Holder , 489 F. App'x 911, 916 (6th Cir. 2012) ), abrogated on other grounds by Nasrallah , 140 S. Ct. 1683.¹ We review factual findings "under the ‘highly deferential’ substantial-evidence test, meaning those findings stand ‘unless any reasonable adjudicator would be compelled’ to disagree." Kilic , 965 F.3d at 473, (quoting Nasrallah , 140 S. Ct. at 1692 ). Marqus asserts that the IJ erred as a factual matter because Chaldean Christian Iraqis are automatically entitled to CAT relief under Yousif v. Lynch , 796 F.3d 622, 628 (6th Cir. 2015), and because he otherwise faces a high likelihood of torture that is particularized to him.

To start, our decision to grant withholding of removal to a Chaldean Christian Iraqi in Yousif "did not," as Marqus claims, "establish an entitlement to withholding of removal for all time" for all Chaldean Christian Iraqis. Ishac v. Barr , 775 F. App'x 782, 788 (6th Cir. 2019).² And on this record, we cannot say that a reasonable adjudicator would be compelled to decide that Marqus faces a high likelihood of torture based on his status as a Chaldean Christian, his ties to the United States, his criminal record, his lack of identity documents, his desertion from the Iraqi military, or his prior experience of violence at the hands of the PMF. While Marqus certainly can point to evidence indicating a risk of torture for Chaldean Christians in similar circumstances, the Government presented the opinions of its own experts who described the country conditions and characterized Marqus's experts’ opinions as "farfetched," A.R. at 459, and "outdated," A.R. at 463. Moreover, the BIA and the IJ acknowledged that Marqus had been attacked by the PMF over a decade ago, but found that Marqus failed to establish that the PMF had taken an interest in him more recently or that they would seek him out if he returned to Iraq. A.R. at 6, 243–44. Altogether, the IJ considered Marqus's evidence but decided that the Government's evidence was more persuasive. See A.R. at 240–44. Because Marqus's arguments merely ask us to reweigh the evidence, and the Government has introduced its own credible body of evidence to the contrary, we defer to the IJ's factual findings on this record. We accordingly reject Marqus's factual challenges on this petition for review.

B. Legal Challenges to Denial of CAT Relief

Whether the BIA and the IJ applied the correct legal standard in deciding Marqus's CAT claim is a question of law that we review de novo. See Shabo , 892 F.3d at 239–40. "To obtain relief under [the] CAT, the applicant ‘bears the burden of establishing it is more likely than not that he or she would be tortured if removed to the proposed country of removal.’ " Liti v. Gonzales , 411 F.3d 631, 641 (6th Cir. 2005) (quoting 8 C.F.R. § 1208.16(c)(2) ) (internal quotation marks omitted). To determine whether the applicant has met this burden, the BIA and the IJ must consider "all evidence relevant to the possibility of future torture." 8 C.F.R. § 1208.16(c)(3).

Marqus claims that the BIA and the IJ failed to conduct an aggregate analysis. Other circuits interpret § 1208.16(c)(3) to require the BIA and the IJ to consider the aggregate probability of torture from independent sources or for independent reasons, rather than assess the probability of torture from each source or for each reason separately. See Rodriguez-Arias v. Whitaker , 915 F.3d 968, 972–73 (4th Cir. 2019) ; Cole v. Holder , 659 F.3d 762, 775 (9th Cir. 2011) ; Quijada-Aguilar v. Lynch , 799 F.3d 1303, 1308 (9th Cir. 2015). We will presume for the purposes of this analysis that the aggregation rule applies. Under the aggregation rule, an applicant alleging probable torture from independent sources "need not demonstrate that the probability of torture by one of the entities," or for one of the reasons, "taken alone, exceeds 50%." Shakkuri v. Barr , 780 F. App'x 286, 291 (6th Cir. 2019) (quotation omitted). Instead, the question is whether the " ‘cumulative probability of torture by [all of the] entities," or for all reasons, "exceeds 50%.’ " Id . (quoting Kamara v. Att'y Gen. of the U.S. , 420 F.3d 202, 213–14 (3d Cir. 2005) ); Quijada-Aguilar , 799 F.3d at 1308. An improperly...