Yousif v. Garland
| Decision Date | 16 November 2022 |
| Docket Number | 22-3178 |
| Citation | 53 F.4th 928 |
| Parties | Bassil Mati YOUSIF, Petitioner, v. Merrick B. GARLAND, Attorney General, Respondent. |
| Court | U.S. Court of Appeals — Sixth Circuit |
ON BRIEF: Russell Reid Abrutyn, ABRUTYN LAW PLLC, Berkley, Michigan, for Petitioner. Robert P. Coleman III, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.
Before: SILER, NALBANDIAN, and READLER, Circuit Judges.
Bassil Mati Yousif challenges a Board of Immigration Appeals ("BIA") decision denying his application for deferral of removal and his motion to remand to consider new evidence. Because substantial evidence supports the BIA's denial of his application, and because the BIA acted within its discretion in denying Yousif's motion to remand, we deny Yousif's petition for review.
Yousif is a native and citizen of Iraq who came to the United States in 2000 as a refugee. In 2002, he became a lawful permanent resident. In 2010, he was convicted of two counts of conspiracy to distribute 100 kilograms or more of marijuana in violation of federal law.
In 2011, the Department of Homeland Security served Yousif with a Notice to Appear in immigration court, explaining that, because of his conviction, he was removable. Yousif applied for withholding of removal under the Convention Against Torture ("CAT"), withholding of removal under § 241(b)(3) of the Immigration and Nationality Act ("INA"), and, in the alternative, deferral of removal under 8 C.F.R. § 1208.17(a). He argued that if he returned to Iraq, he would be persecuted because of his religious beliefs. After a December 2011 hearing, an Immigration Judge ("IJ") denied his application and ordered him removed.
Yousif did not appeal that decision. Instead, in 2017, he moved to reopen his application based on changed conditions in Iraq, alleging he would face torture because of "his Christian religion, long residence in the U.S. [and] ... his ethnicity." (A.R. 001412.) At first, an IJ denied his application, but Yousif moved to reconsider, and the IJ reopened the case to determine whether Yousif was eligible for deferral of removal under CAT.
Then came Yousif's 2018 hearing. Only Yousif testified. When asked if there is "anyone specific" whom he feared in the Iraqi government, he responded: (Hr. Tr. 41:6–8, A.R. 000668.) And when asked if there was "anyone else" he feared, he replied: "[A]ll Muslims." (Hr. Tr. 41:11–25, A.R. 000668.) The IJ admitted many of Yousif's proffered documents into evidence, including Department of State reports, internet articles, and other government documents. The IJ also admitted declarations from Daniel Smith, a researcher and journalist who lives in Iraq; Rebecca Heller, the director of the International Refugee Assistance Project; and Mark Lattimer, an NGO director. Yousif's counsel "request[ed] the [IJ] consider [Mr. Smith] a percipient witness" instead of an expert witness, and the IJ agreed to do so. (Hr. Tr. 18:4–15, A.R. 000645.) And, "consistent with the [IJ's] prior rulings," he declined to consider Ms. Heller as "an expert[ ] in country conditions." (Hr. Tr. 21:2–9, A.R. 000648.) The IJ admitted the declaration of Mark Lattimer as an expert. The government contradicted the testimony of these witnesses with expert witnesses—Denise Natali, Michael Rubin, and Douglas Ollivant—reports, and articles.
In the end, the IJ found the government's evidence "more persuasive," and held that "[b]ased on an evaluation of the totality of the evidentiary record," Yousif had not "met his burden to prove that it is more likely than not that he will be subject to torture in Iraq." (IJ Order, A.R. 000623–24.) The IJ also found that Yousif did not meet his burden to show, "as the Sixth Circuit requires ... a ‘particularized threat of torture.’ " (IJ Order, A.R. 000623.)
Yousif appealed, arguing that the IJ erred by giving the government's experts' testimony more weight than his witnesses and finding that he had not met his burden to establish it is more likely than not that he'd be tortured. He also argued that the IJ improperly relied on Matter of J-F-F- , 23 I. & N. Dec. 912 (A.G. 2006), a decision by the Attorney General, which says that when a noncitizen presents evidence of a risk of torture as a chain of events, all events in the chain must be more likely than not to occur (causal-chain approach). In other words, he claimed that the IJ did not assess his probability of torture from all entities and for all reasons in the aggregate (aggregate approach), and instead incorrectly assessed his probability of torture as a hypothetical chain of events per J-F-F- , and was wrong to do so. Finally, Yousif argued that his case should be remanded so the IJ can consider new country-conditions evidence. Yousif submitted updated declarations, reports, articles, and recent BIA and IJ decisions in support of his motion to remand.
The BIA adopted the IJ's decision, dismissed the appeal, and denied Yousif's motion to remand. The BIA affirmed the IJ's determination that Yousif had not met his burden to establish that it's more likely than not that he'd be tortured and found that the IJ's weighing of the evidence was permissible. The BIA also found that the IJ did not rely on the causal-chain approach and instead correctly applied the aggregate approach. The BIA then denied Yousif's motion to remand because he did not meet his burden to prove that the "newly submitted evidence would likely change the result of his case." (BIA Order, A.R. 000005.) The evidence was "cumulative" of the evidence submitted before the IJ and did not establish that Yousif would "be singled out for torture ...." (BIA Order, A.R. 000005.)
Yousif now petitions our court for review of the denial of his application and motion to remand. Where, as here, the BIA issued its own opinion but also adopted the immigration judge's reasoning, we review both decisions. Khalili v. Holder , 557 F.3d 429, 435 (6th Cir. 2009).
We first consider Yousif's factual challenges to the denial of his application for deferral of removal under CAT. Yousif argues that he met his burden to prove it is "more likely than not" that he would be tortured "by ... or with the consent or acquiescence of" Iraqi government officials "acting in an official capacity" because of his status as a Chaldean Christian, his ties to the United States and lack of ties to Iraq, his refugee status, and his criminal history. See 8 C.F.R. §§ 1208.17(a), 1208.18(a)(1).
Our review of Yousif's factual challenges is "highly deferential." Nasrallah v. Barr , ––– U.S. ––––, 140 S. Ct. 1683, 1692, 207 L.Ed.2d 111 (2020). We use the substantial evidence standard and treat "[t]he agency's findings of fact a[s] conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary." Id. (emphasis added) (citation and quotation marks omitted). This means that "[w]hen the evidence could reasonably point in either direction ... we must defer to the agency's choice." Shafo v. Wilkinson , 844 F. App'x 791, 796 (6th Cir. 2021) (citing Al-Koorwi v. Barr , 837 F. App'x 323, 327–28 (6th Cir. 2020) ).
Substantial evidence supports the BIA's conclusion that it's not more likely than not that Yousif will face torture upon removal to Iraq. Much of the evidence Yousif presents only establishes generalized violence and political unrest in Iraq. And more specific evidence about violence committed at the hands of ISIS is "outdated." (Natali Dec., A.R. 000737.) To be sure, there are post-ISIS-liberation challenges for religious minorities. Some are returning home to property disputes or destruction, extortion, and threats. And while reports show the "existence of discrimination [and] harassment against Christians in some regions in Iraq," this "would not amount to torture." (BIA Order, A.R. 000004.); see Suleiman v. Garland , 849 F. App'x 587, 589 (6th Cir. 2021) ( the same); Abdulahad v. Barr , 838 F. App'x 126, 136 (6th Cir. 2020) (same).
The record also makes clear that Iraqi security forces' primary goal is to obstruct the efforts of ISIS. Popular Mobilization Forces or Units ("PMF") exist for the same purpose. Yousif's two decades in the United States would make him less likely to be suspected of ISIS affiliation. Because of this focus on counterterrorism, one expert testified that the idea that the government will be interested in detaining returning Iraqis for long periods of time upon reentry, much less harming them, was "farfetched." (Natali Dec., A.R. 000733.) Even for returning Iraqis with criminal histories. And Ollivant opined: "I know of no incidents of Iraqi citizens being tortured for not having proper documents" upon arrival. (Ollivant Dec., A.R. 000789.) Any screening Yousif might face at various checkpoints throughout the country would have the same primary goal: ensure that there is a "legitimate purpose" to Yousif's travel and that he is "not a terrorist seeking to infiltrate a community ...." (Rubin Dec., A.R. 000786.) And two government experts emphasized that Western influences are not unwelcome or uncommon in Iraq.
The IJ also found that there's insufficient evidence to show that the Iraqi government acquiesces or willingly turns a blind eye to crimes committed by PMF members or any extremist groups. To the contrary, record evidence shows that the Iraqi government has committed to investigating and punishing PMF members who've committed human rights abuses rather than consenting to or condoning them.
Although Yousif might have challenges integrating into society, especially without family in the country, there's record evidence that Yousif could safely relocate. "[T]housands of Christians and Yezidi have returned uneventfully to rebuild their homes, and their villages and towns are often protected by Christian and Yezidi militias, as well as PM[F]s and Iraqi...
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