Abdulahad v. Garland

99 F.4th 275

Walid ABDULAHAD, Petitioner, v. Merrick B. GARLAND, Attorney General, Respondent.

No. 22-3743

United States Court of Appeals, Sixth Circuit

Argued: October 24, 2023

Decided and Filed: April 11, 2024

On Petition for Review from the Board of Immigration Appeals. No. AXXX-XX6-571.

ARGUED: Nadia Anguiano, Jeremy Ruppert, UNIVERSITY OF MINNESOTA, Minneapolis, Minnesota, for Petitioner. Gregory A. Pennington, Jr., UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON BRIEF: Nadia Anguiano, Jeremy Ruppert, UNIVERSITY OF MINNESOTA, Minneapolis, Minnesota, Russell Abrutyn, ABRUTYN LAW, PLLC, Berkley, Michigan, for Petitioner. Gregory A. Pennington, Jr., Paul Fiorino, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.

Before: MOORE, GIBBONS, and STRANCH, Circuit Judges.

MOORE, J., delivered the opinion of the court in which STRANCH, J., joined. GIBBONS, J. (pp. 298-303), delivered a separate dissenting opinion.

OPINION

KAREN NELSON MOORE, Circuit Judge.

Walid Abdulahad petitions for review of the Board of Immigration Appeals' (the "Board") denial of his motion to reopen based on changed country conditions in Iraq. The Board denied the motion to reopen because it found that Abdulahad's motion evidence was cumulative of evidence submitted with prior motions to reopen, Abdulahad had not established a particularized risk of torture sufficient to establish prima facie eligibility for Deferral of Removal under the Convention Against Torture ("DCAT"), and Abdulahad had not established that each step in his causal-chain claim was more likely than not to occur. For the reasons set forth below, we GRANT the petition, VACATE the Board's decision, and REMAND the case to the Board for proceedings consistent with this opinion.

I. BACKGROUND

Abdulahad was born in Baghdad, Iraq, and, in 1991, he fled the country with his family. Administrative Record ("A.R.") at 1237, 1239 (11/7/2017 Hr'g Tr. at 81, 83). In 1997, Abdulahad and his family entered the United States and, in 2000, Abdulahad obtained legal permanent resident status. A.R. at 2475 (I-94 Permit at 1); A.R. at 2473 (LPR Approval at 1). In September 2003, Abdulahad was arrested in Aruba for attempting to transport approximately 500 grams of cocaine. A.R. at 2734-35 (Aruba Crim. R. at 8-9). Thereafter, an Aruban criminal court found him guilty in absentia. Id. at 2729 (Aruba Crim. R. at 3). Based on that criminal judgment, the U.S. Immigration and Naturalization Service instituted removal proceedings against Abdulahad. A.R. at 2896 (Charges of Deportability at 1). Abdulahad did not appear at an August 3, 2006, hearing in immigration court and, therefore, the immigration judge ("IJ") ordered Abdulahad removed in absentia. A.R. at 1166-68 (8/3/2006 Hr'g Tr. at 11-13). Since then, Abdulahad has remained in the United States under supervision. See A.R. at 2130 (DHS Order of Supervision at 1).

On June 19, 2017, Abdulahad filed an emergency motion to stay removal and a motion to reopen his removal proceedings based on changed country conditions in Iraq. A.R. at 2083-103 (6/19/2017 Mot. to Reopen at 1-21); A.R. at 2835-44 (Emergency Mot. to Stay at 1-10). On August 16, 2017, the IJ granted Abdulahad's motion to reopen, finding that Abdulahad was entitled to an evidentiary hearing because he had established prima facie eligibility for DCAT. A.R. at 2783, 2786 (8/16/2017 IJ Order at 7, 10). Abdulahad then presented testimony from Dr. Shaul M. Gabbay and himself and proposed twenty exhibits supporting his application. A.R. at 1192-1223, 1230-56 (11/7/2017 Hr'g Tr. at 36-67, 74-100); A.R. at 1273-1304 (2/18/2018 Hr'g Tr. at 116-47); A.R. at 1468-71 (Abdulahad Ex. List at 2-5).

On February 28, 2018, after two days of hearings, the IJ denied Abdulahad's application for DCAT. A.R. at 1152 (2/28/2018 IJ Order at 15). The IJ determined that Abdulahad did not demonstrate that it was more likely than not that he would be tortured based on his status as a Chaldean Christian or his ties to the United States. Id. at 1148-50 (2/28/2018 IJ Order at 11-13). The IJ reasoned that extremist groups, specifically Da'esh,¹ that historically persecuted Christians had been "routed from all but a small portion of Iraq." Id. at 1148 (2/28/2018 IJ Order at 11) (quotations omitted). The IJ also concluded that, although the Popular Mobilization Forces ("PMFs") "ha[d] perpetrated human rights abuses against civilians, including Christians," they "largely [sought] to defeat Da'esh" and therefore, would not pose a threat to Abdulahad. Id. at 1149 (2/28/2018 IJ Order at 12). More specifically, the "PMF members primarily detain, question, and potentially harm those suspected of maintaining ties to Da'esh," but, because Abdulahad "has lived outside of Iraq for a majority of his life," the IJ concluded that "it is therefore unlikely PMF members would suspect [that Abdulahad had] prior involvement with Da'esh." Id. As it related to Abdulahad's fear of torture based on his ties to the United States, the IJ found that these fears were unfounded because "significant evidence in the record leads to the opposite conclusion." Id. at 1150 (2/28/2018 IJ Order at 13). The IJ reasoned that:

Returnees to Iraq may be detained by the PMF only if they have ties to Da'esh. Respondent's long residence in the United States, which he uses to support his assertion of being westernized - rather than make him a target of the PMF - essentially exonerates him from any fear of detention or harm. Iraqi Christians in particular, such as respondent, should not be concerned about their "westernization" because the fact that they were in the West almost clears them with certainty of any connection to Da'esh, and [Dr.] Rubin emphasizes that Western influences are not unwelcome or uncommon in Iraq.

Id. Finally, the IJ concluded that Abdulahad had not established that the Iraqi government acquiesced in the PMFs' human rights abuses because "the Iraqi government [was] investigating abuses by the PMF[s]" and the government expert, "Dr. Rubin[,] contends that the end of the war against Da'esh has meant increasing accountability for the PMF[s]." Id. at 1149-50 (2/28/2018 IJ Order at 12-13).

Abdulahad appealed the IJ's order to the Board and filed a motion to remand the case based on new evidence. A.R. at 1101-03 (3/27/2018 Notice of Appeal at 1-3); A.R. at 877-915 (6/20/2018 Br. & Mot. to Remand at 1-39). On November 20, 2018, the Board affirmed the IJ's decision and denied Abdulahad's motion to remand. A.R. at 717, 725 (11/20/2018 BIA Dec. at 1, 9). Abdulahad then petitioned this court for review. See Abdulahad v. Barr, 838 F. App'x 126, 128 (6th Cir. 2020). On December 19, 2018, Abdulahad filed a motion to reopen with the Board, which the Board denied on May 24, 2019. A.R. at 666-81 (Mot. to Reopen & Reconsider at 1-16); A.R. at 514-16 (5/24/2019 BIA Dec. at 1-3). Abdulahad then filed a petition for this court to review the Board's denial of his motion to reopen, which this court consolidated with the first petition. See Abdulahad, 838 F. App'x at 129. On November 25, 2020, this court denied both petitions for review. Id. at 130-36. As it related to the Board's denial of the motion to reopen, the prior panel determined that "Abdulahad fail[ed] to point to specific facts that the BIA failed to accept as true for the purposes of the motion to reopen." Id. at 137.

On January 6, 2021, Abdulahad filed a new motion to reopen with the Board. A.R. at 277-94 (1/6/2021 Mot. to Reopen at 1-18). Abdulahad argued that six of his characteristics "individually or in the aggregate, make it more likely than not that he will be tortured by or with the acquiescence of Iraqi government officials." Id. at 277 (1/6/2021 Mot. to Reopen at 1). On July 5, 2021, Abdulahad submitted a supplement to his January 2021 motion to reopen that included updated country condition reports and other evidence. A.R. at 148-52 (7/5/2021 Suppl. to Mot. to Reopen at 1-5). On July 20, 2021, the Board denied Abdulahad's January 2021 motion to reopen. A.R. at 253 (7/20/2021 BIA Dec. at 1). In doing so, the Board did not consider the updated country condition reports that Abdulahad submitted with his July 2021 supplement. Id. at 253-56 (7/20/2021 BIA Dec. at 1-4). Abdulahad petitioned this court for review of the Board's decision. A.R. at 244-45 (1/28/2022 6th Cir. Order at 1-2). We granted the government's motion to remand the case so that the Board could consider the evidence that Abdulahad had included in his July 2021 supplement. Id.

On remand, Abdulahad filed a new motion to reopen that included updated country condition reports and other evidence. A.R. at 67 (6/9/2022 Mot. to Reopen at 1). Abdulahad also resubmitted the July 2021 supplement in order to "complete the record" and incorporated by reference the materials submitted with his January 2021 motion to reopen. Id.

On August 24, 2022, the Board, in a single-judge order, denied Abdulahad's motion to reopen. A.R. at 3 (8/24/2022 BIA Dec. at 1). The Board found that much of the evidence that Abdulahad submitted was not "new" because he submitted it with his prior motions to reopen or that it was "cumulative" of evidence Abdulahad included with the prior motions to reopen. See, e.g., id. at 5-7 (8/24/2022 BIA Dec. at 3-5). The Board then reasoned that "the evidence largely reflects a continuation of the development of the status and activities of the PMFs and the continued suspicion of those perceived to have a connection to the United States." Id. at 7 (8/24/2022 BIA Dec. at 5). And, although the Board acknowledged that "the evidence reflects that the PMFs generally commit gross human rights violations, including torture, . . . and that Christians remain at high risk of persecution in Iraq," ultimately the Board concluded that Abdulahad did not establish that there was "a reasonable likelihood that . . . any persecutor or Iraqi official would specifically intend to inflict severe pain or suffering...