Walid Abdulahad v. Merrick B. Garland

RECOMMENDED FOR PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 24a0082p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

┐

WALID ABDULAHAD,

│

Petitioner, │

> No. 22-3743

│

v. │

│

MERRICK B. GARLAND, Attorney General, │

Respondent. │

┘

On Petition for Review from the Board of Immigration Appeals.

No. A 075 056 571.

Argued: October 24, 2023

Decided and Filed: April 11, 2024

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

_________________

COUNSEL

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.

MOORE, J., delivered the opinion of the court in which STRANCH, J., joined.

GIBBONS, J. (pp. 26–34), delivered a separate dissenting opinion.

No. 22-3743 Abdulahad v. Garland Page 2

_________________

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

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(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

1The term “Da’esh” refers to the Islamic State in Iraq, or ISIS. See A.R. at 1479 (Dr. Gabbay Rep. at 7).

No. 22-3743 Abdulahad v. Garland Page 4

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

No. 22-3743 Abdulahad v. Garland Page 5

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 on him.” Id.

II. JURISDICTION

We have jurisdiction over this petition because the arguments presented on appeal relate

to questions of law. 8 U.S.C. § 1252(a)(2)(D) (“Nothing in subparagraph (B) or (C), or in any

other provision of this chapter . . . which limits or eliminates judicial review, shall be construed

as precluding review of constitutional claims or questions of law raised upon a petition for

review.”); see also Mata v. Lynch, 576 U.S. 143, 147 (2015) (“[C]ircuit courts have jurisdiction”

over “appeals from the Board’s denial of a motion to reopen a removal proceeding.”); Sanchez-

No. 22-3743 Abdulahad v. Garland Page 6

Gonzalez v. Garland, 4 F.4th 411, 413–14 (6th Cir. 2021) (“We agree that we have jurisdiction

under § 1252(a)(2)(D) to review the legal questions involved in Sanchez’s motion to reopen.”).

III. ANALYSIS

A. Standard of Review

We review for abuse of discretion the Board’s denial of a motion to reopen. Bi Feng Liu

v. Holder, 560 F.3d 485, 489 (6th Cir. 2009). “[L]egal issues are reviewed de novo.” Gafurova

v. Whitaker, 911 F.3d 321, 325 (6th Cir. 2018) (quoting Harchenko v. INS, 379 F.3d 405, 409

(6th Cir. 2004)). The Board abuses its discretion if its decision “was made without a rational

explanation, inexplicably departed from established policies, or rested on an impermissible basis

such as invidious discrimination against a particular race or group.” Allabani v. Gonzales, 402

F.3d 668, 675 (6th Cir. 2005) (quoting Balani v. I.N.S., 669 F.2d 1157, 1161 (6th Cir. 1982) (per

curiam)). “The Board’s discretion is broad but it is not unlimited. It may not exercise its

discretion in a way that is arbitrary, irrational or contrary to law. Cursory, summary, or

conclusory statements are inadequate.” Daneshvar v. Ashcroft, 355 F.3d 615, 625–26 (6th Cir.

2004) (citations omitted).

The Board must also “‘analyze and explain the basis on which it decides against [the

petitioner],’ meaning it must actually consider the evidence and the arguments put forth by the

[petitioner].” Marqus v. Barr, 968 F.3d 583, 592 (6th Cir. 2020) (quoting Preçetaj v. Sessions,

907 F.3d 453, 459 (6th Cir. 2018)). We review only “the basis articulated in the decision and

[we] may not assume that the Board considered factors that it failed to mention in its opinion.”

Preçetaj, 907 F.3d at 458 (quoting Daneshvar, 355 F.3d at 626).

B. Motion to Reopen Standard

An applicant for immigration relief is typically limited to one motion to reopen that must

be filed within ninety days of the “final administrative decision . . . in the proceedings sought to

be reopened.” 8 C.F.R. § 1003.2(c)(2). There is an exception to this rule for motions to reopen

“based on changed circumstances arising in the . . . country to which deportation has been

ordered, if such evidence is material and was not available and would not have been discovered

No. 22-3743 Abdulahad v. Garland Page 7

or presented at the previous hearing.” Id. § 1003.2(c)(3)(ii). Abdulahad’s most recent motion to

reopen was filed beyond the ninety-day deadline, and therefore he must meet the requirements of

this exception.

Abdulahad argues that the Board abused its discretion in three ways. First, Abdulahad

argues that the Board “failed to apply long-established legal standards to determine whether Mr.

Abdulahad’s motion evidence ‘demonstrates a material change in country conditions that would

justify reopening.’” Pet’r Br. at 26 (footnote omitted) (quoting Matter of S-Y-G-, 24 I. & N. Dec.

247, 253 (BIA 2007)). Second, Abdulahad argues that the Board “fail[ed] to analyze Mr.

Abdulahad’s aggregate risk of torture in Iraq,” as required by “its own binding precedent.” Id. at

34. Third, Abdulahad argues that, even if the Board applied the correct legal standards, it

“fail[ed] to consider all aspects of [his] claim or articulate a reasoned basis for” finding that he

did not establish prima facie eligibility for DCAT. Id. at 41. In response, the government argues

that the Board did not abuse its discretion and, even if its reasoning was inadequate in some way,

any errors were harmless. E.g., Resp’t Br. at 15–16, 34–35.

1. Changed Country Conditions

Abdulahad makes two arguments of legal error as it relates to the Board’s analysis of

changed country conditions.2 First, Abdulahad argues that the Board did not, as required by its

own precedent, compare the evidence he submitted with his motion to reopen to the country

conditions evidence presented with his application for DCAT relief. Pet’r Br. at 26. Instead,

Abdulahad argues that the Board incorrectly compared the evidence submitted with his most

recent motion to reopen with the evidence submitted with his prior motions to reopen. Id.

2The government argues that Abdulahad has “waived any challenge to [the] Board’s holding that the

motion failed to demonstrate materially changed country conditions” because Abdulahad did not argue “how the

evidence in the record shows changed country conditions.” Resp’t Br. at 18. To the extent that the government

suggests that Abdulahad did not argue that the Board’s errors prejudiced him, this is incorrect. See, e.g., Pet’r Br. at

23 (“Considering that numerous Immigration Judges . . . have granted nondiscretionary CAT protection after

examining the same evidence the BIA failed to properly compare in this instance, the BIA’s legal errors resulted in

clear prejudice to Mr. Abdulahad.”). To the extent that the government suggests that Abdulahad has waived any

challenge to the factual findings underlying the Board’s decision, any such waiver is irrelevant because we have

jurisdiction to review only legal questions and constitutional challenges. See 8 U.S.C. § 1252(a)(2)(D) (“Nothing in

subparagraph (B) or (C), or in any other provision of this chapter . . . which limits or eliminates judicial review, shall

be construed as precluding review of constitutional claims or questions of law raised upon a petition for review.”).

No. 22-3743 Abdulahad v. Garland Page 8

Second, Abdulahad contends that the Board used an incorrect legal standard to assess whether

the evidence offered was material. Id.

a. New or Cumulative

A petitioner seeking to reopen their immigration case based on changed country

conditions can do so if the “evidence sought to be offered is material and was not available and

could not have been discovered or presented at the former hearing.” 8 C.F.R. § 1003.2(c)(1).

When considering whether evidence was not previously available, we define “at the former

hearing,” id., as at the time of the merits hearing, as opposed to evidence submitted on appeal or

with a motion to reopen, because this court and “the [Board] normally do[] not accept and

consider new evidence on appeal,” Hernandez-Perez v. Whitaker, 911 F.3d 305, 317 (6th Cir.

2018) (assessing whether certain evidence submitted with the motion to reopen “could not have

[been] discovered” before the merits hearing). Similarly, when considering whether the evidence

is material in terms of changed country conditions, we compare the country conditions as they

existed at the time that the motion to reopen was filed and the country conditions as they existed

at the time of the merits hearing. See Bi Feng Liu, 560 F.3d at 491 (“In determining whether

evidence accompanying a motion to reopen demonstrates a material change in country conditions

that would justify reopening, [the Board] compare[s] the evidence of country conditions

submitted with the motion to those that existed at the time of the merits hearing below.” (quoting

Matter of S-Y-G, 24 I. & N. Dec. at 253)).

Here, the Board repeatedly and explicitly compared evidence that Abdulahad submitted

with his most recent motion to reopen to evidence submitted with his prior motions to reopen.

See, e.g., A.R. at 4 (8/24/2022 BIA Dec. at 2) (“In the motion filed on January 14, 2021, the

respondent expresses the same fear of torture that he claimed in his first motion to reopen filed

on December 20, 2018.”); id. at 5 (8/24/2022 BIA Dec. at 3) (“Because the respondent

previously submitted the excerpt of the 2018: Iraq Country Reports with his prior request for

reopening, the excerpt from this same report submitted with the instant motion is not ‘new’

evidence and is cumulative of evidence previously submitted.”); id. at 6 (8/24/2022 BIA Dec. at

4) (“The respondent’s argument that, though he is not a United States citizen, his implied status

as an American will increase the risk of torture at the hand of Iraqi security forces and PMFs, is

No. 22-3743 Abdulahad v. Garland Page 9

not new, as he expressed such a fear in his prior motion to reopen.”); id. (“[T]he 2019 declaration

from Ms. Wille that was previously submitted with the respondent’s prior motion to reopen also

made the same assertions.”); id. (“Mr. Smith’s February 2020 declaration asserts that Iraqi

deportees from the United States are at heightened risk of detention and torture upon return to

Iraq, including threat of torture by Iran-backed PMFs, which was previously asserted in his April

2019 declaration.”). Therefore, the Board incorrectly disregarded most of Abdulahad’s evidence

as cumulative or not new. See, e.g., Hernandez-Perez, 911 F.3d at 317.3

The government suggests that the Board cited the correct legal standard and therefore, we

should assume that the Board conducted the correct analysis. Resp’t Br. at 34. In several places,

however, the Board cites the correct legal standard while explicitly making the incorrect

comparison. See, e.g., A.R. at 5 (8/24/2022 BIA Dec. at 3) (citing Matter of S-Y-G- to support its

conclusion that “[b]ecause the respondent previously submitted the excerpt of the 2018: Iraq

Country Reports with his prior request for reopening, the excerpt from this same report

submitted with the instant motion is not ‘new’ evidence and is cumulative of evidence previously

submitted”). And, as outlined above, the Board explicitly compared the wrong evidence

throughout its decision. Therefore, the Board abused its discretion by applying the incorrect

legal standard. See Daneshvar, 355 F.3d at 625–26 (“The Board[] . . . may not exercise its

discretion in a way that is . . . contrary to law.”).

b. Materiality

Next, Abdulahad argues that the Board “ignore[d] this Circuit’s rule that changed country

conditions can exist when persecution of an already-targeted group escalates” and improperly

disregarded evidence as immaterial. Pet’r Br. at 26 (quoting Pablo Lorenzo v. Barr, 779 F.

App’x 366, 375 (6th Cir. 2019)). The government responds that the Board “held that there was

no material change,” incremental or otherwise, and therefore, the Board did not apply an

incorrect legal standard. Resp’t Br. at 35.

3The dissent agrees that the Board used the incorrect legal standard throughout its opinion to disregard

evidence as cumulative or not new. Dissent at 27 (“And the majority is correct that there are places where the Board

compares Abdulahad’s offered evidence to the evidence presented with his first motion to reopen . . . .”). Instead,

the dissent contends that these errors were harmless. For the reasons explained in Part III.B.4, we cannot say that

these errors were harmless.

No. 22-3743 Abdulahad v. Garland Page 10

Changed country conditions are material when the country “become[s] more hostile

towards” a petitioner “or [their] group,” Yu Yun Zhang v. Holder, 702 F.3d 878, 880 (6th Cir.

2012) (order) (quoting Tan Wu Zhang v. Holder, 385 F. App’x 546, 547 (6th Cir. 2010)), or

when the “persecution of [the petitioner’s] group has ‘escalated’ since [their] original

immigration proceeding,” Pablo Lorenzo, 779 F. App’x at 374 (quoting Yu Yun Zhang, 702 F.3d

at 880). See also Luhiso v. Barr, 787 F. App’x 319, 323 (6th Cir. 2019) (“A change in

circumstance is attributable to a country’s conditions if the country as a whole becomes more

hostile or dangerous.”). “Change that is incremental or incidental does not” establish materially

changed country conditions. Matter of S-Y-G–, 24 I. & N. Dec. at 257.

To support his argument, Abdulahad relies primarily on Pablo Lorenzo, 779 F. App’x

366 (6th Cir. 2019), whereas the government, for its part, relies primarily on Jado v. Wilkinson,

847 F. App’x 278 (6th Cir. 2021). In Pablo Lorenzo, we granted a petition for review and

remanded the case so that the Board could “reconsider whether Pablo [Lorenzo] has

demonstrated changed country conditions under the correct evidentiary and legal standards.”

779 F. App’x at 368. We found that the Board’s conclusion—that Pablo Lorenzo did not

establish changed country conditions because “‘the indigenous population’s troubles [in

Guatemala] took root during the 1980’s civil war,’ and the indigenous population has historically

suffered discrimination and violence”—was based on a legal error. Id. at 375 (citation omitted).

We reasoned that “[t]he mere fact that the indigenous population of Guatemala has long faced

some level of discrimination would not preclude Pablo [Lorenzo] from demonstrating changed

country conditions if he shows that persecution of the indigenous population materially

intensified since his merits hearing.” Id. In other words, the Board “erred by finding that the

fact that indigenous Guatemalans have long faced discrimination categorically precludes Pablo

[Lorenzo] from showing changed country conditions.” Id.

Conversely, in Jado, we denied Jado’s petition for review of the Board’s denial of his

motion to reopen. 847 F. App’x at 279. The Board had denied Jado’s motion to reopen because

he “had not shown that conditions in Iraq had materially changed” and the evidence showed

“only incremental changes in Iraq, not materially changed conditions.” Id. at 283. The Board

considered specific pieces of evidence and concluded that the country conditions had not

No. 22-3743 Abdulahad v. Garland Page 11

significantly changed such that reopening was warranted. Id. We found that the Board did not

abuse its discretion because “the evidence merely described ‘incremental changes’ that ‘would

be expected in the volatile atmosphere of contemporary Iraq,’ not changes that were material to

Jado’s situation.” Id. at 285. In other words, the Board applied the correct law and explained its

decision in the context of the relevant facts.

Although the facts of Jado, like this case, involve the country conditions in Iraq, the

pertinent comparison is in the Board’s legal analysis. Here, similar to Pablo Lorenzo, the Board

found that the evidence Abdulahad submitted, specifically the 2020 and 2021 country reports,

“largely reflect[ed] a continuation of the general mistreatment that Christians (and religious and

ethnic minorities) have faced in Iraq and that the decline of the Christian population in Iraq has

been ongoing over nearly the past two decades.” Compare A.R. at 5 (8/24/2022 BIA Dec. at 3),

with Pablo Lorenzo, 779 F. App’x at 375 (stating that the Board denied the motion to reopen, in

part, because “‘the indigenous population’s troubles [in Guatemala] took root during the 1980’s

civil war,’ and the indigenous population has historically suffered discrimination and violence”

(citation omitted)). This aspect of the analysis improperly relied on the fact that Christians “have

long faced discrimination” in Iraq to support the conclusion that Abdulahad could not show

changed country conditions and, therefore, this was in error. Pablo Lorenzo, 779 F. App’x at

375.

The Board further reasoned that evidence included in the declarations submitted by

Abdulahad, particularly Mr. Smith’s declaration, “largely reflect[ed] 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, as well as continued risk to Christian and

other minority populations in Iraq.” A.R. at 7 (8/24/2022 BIA Dec. at 5). The Board also noted

that Mr. Lattimer’s updated declaration was “a continuation of conditions attested to in his prior

declaration.” Id. Although these aspects of the decision could be said more closely to parallel

the reasoning in Jado, 847 F. App’x at 285, here the Board did not invoke the correct legal test—

by citing the test or using the “incremental change” language—and did not explain why the

“continuation of the development” of certain conditions, including hostility toward Christians

and those with a connection to the United States, was immaterial. Therefore, it is difficult to

No. 22-3743 Abdulahad v. Garland Page 12

discern whether the Board relied on the improper assumption that “the fact that [a persecuted

group has] long faced discrimination categorically precludes [a petitioner] from showing

changed country conditions.” Pablo Lorenzo, 779 F. App’x at 375. Without a more specific

explanation, the Board has not provided a sufficient basis for this court to review this portion of

its reasoning. See Preçetaj, 907 F.3d at 458 (stating that we “may not assume that the Board

considered factors that it failed to mention in its opinion”).

The dissent contends that “the Board need not invoke any magic words” and that the

Board can “use the proper legal test without invoking the explicit language” of the test. Dissent

at 29. On this point, we agree. The issue with the Board’s analysis here is not simply that it did

not use the incremental-change language, but rather it is that the Board failed to provide any

reasoned explanation that reflected that it conducted the proper legal analysis. Our reference to

the lack of incremental-change language is just an example—another example being the Board’s

failure to explain why the continuation of hostile conditions was immaterial—of what might have

supported a conclusion that the Board used the correct legal test.

The dissent also posits that the Board found that there was “no material change in country

conditions, as opposed to incremental change.” Dissent at 30. This suggestion, however, relies

on an analysis that the Board did not conduct.4 Because “the Board’s denial of relief may be

affirmed only on the basis articulated in the decision,” we will not hypothesize how the Board

could have come to a particular conclusion. Daneshvar, 355 F.3d at 626.

4More specifically, the dissent argues that the Board’s use of the phrase “continuation of the general

mistreatment,” A.R. at 5 (8/24/2022 BIA Dec. at 3), means the Board concluded that the hostile conditions did not

materially change. Dissent at 29–30. This conclusion, however, pulls the phrase out of context and reads an

analysis into the Board’s lack of explanation. That hostile conditions continued over the course of two decades

speaks to the existence of the hostilities but says nothing about the intensity of the hostilities. See Pablo Lorenzo,

779 F. App’x at 375 (“The mere fact that the indigenous population of Guatemala has long faced some level of

discrimination would not preclude Pablo [Lorenzo] from demonstrating changed country conditions if he shows that

persecution of the indigenous population materially intensified since his merits hearing.” (emphasis added) (citations

omitted)). Moreover, the dissent’s reliance on Akrawi v. Garland is misplaced because that case only further

supports our conclusion. No. 19-3896, 2022 WL 3681260, at *8 (6th Cir. Aug. 25, 2022) (finding that the Board

adequately explained its materiality determination based on the Board holding that “[w]hile these more recent

reports continue to reflect that Christians in Iraq may be facing harassment, abuse, and other harm in Iraq, these

reports do not denote a remarkable shift from the reports examined by the Immigration Judge.” (emphasis added)

(internal quotation marks omitted)).

No. 22-3743 Abdulahad v. Garland Page 13

Accordingly, for the reasons explained above, the Board abused its discretion by applying

the incorrect legal standard for assessing evidence of changed country conditions. The Board

also failed to consider or explain adequately whether the “persecution of [Abdulahad’s] group

has ‘escalated’ since his original immigration proceeding.” Pablo Lorenzo, 779 F. App’x at 374.

2. Aggregate Risk of Torture

Abdulahad next argues that the Board “violated its own binding precedent” because it did

not assess his risk of torture in the aggregate. Pet’r Br. at 34–35. In response, the government

does not cite any cases that suggest that the Board is not required to determine the applicant’s

aggregate risk of torture in these circumstances. Resp’t Br. at 45–46. Instead, the government

argues that there is nothing to suggest that the Board did not consider the risk of torture in the

aggregate. Id. at 46.

Several other circuits have concluded that 8 C.F.R. § 1208.16(c)(3), which provides that

“all evidence relevant to the possibility of future torture shall be considered,” requires

immigration courts to consider the aggregate risk of torture from all sources and for all reasons.

See Hamilton v. Whitaker, 759 F. App’x 69, 71 (2d Cir. 2019) (stating that “the risk of torture

must be assessed cumulatively,” and that “[t]he CAT regulations . . . support this argument by

requiring the agency to consider ‘all evidence relevant to the possibility of future torture’”

(quoting 8 C.F.R. § 1208.16(c)(3))); Kamara v. Att’y Gen. of U.S., 420 F.3d 202, 213–14 (3d Cir.

2005) (finding that the Board abused its discretion because it failed properly to apply the

regulations which “merely require[]” the petitioner “to demonstrate that the cumulative

probability of torture by the two entities exceeds 50%”); Rodriguez-Arias v. Whitaker, 915 F.3d

968, 972–73 (4th Cir. 2019) (adopting the rule that “risks of torture from all sources should be

combined when determining whether a CAT applicant is more likely than not to be tortured in a

particular country” because this “interpretation is most consistent with both the implementing

regulations and our treaty obligations not to return individuals to a country where they face a

substantial risk of torture”); Nyandwi v. Garland, 15 F.4th 836, 839 (7th Cir. 2021) (“We see no

reason to disagree with the parties, the [Board], or other circuits, so we adopt the aggregate risk

approach for the determination of substantial risk and hold that the agency may address risk

factors individually so long as it considers all sources of and reasons for risk cumulatively to

No. 22-3743 Abdulahad v. Garland Page 14

determine whether there is a substantial risk of torture.”); Omar v. Barr, 962 F.3d 1061, 1065

(8th Cir. 2020) (“The Board has recognized that claims under the CAT must be considered in

terms of the aggregate risk of torture from all sources.”); Quijada-Aguilar v. Lynch, 799 F.3d

1303, 1308 (9th Cir. 2015) (finding that remand was required because “CAT’s implementing

regulations require the agency to consider ‘all evidence relevant to the possibility of future

torture’” and therefore, “CAT claims must be considered in terms of the aggregate risk of torture

from all sources, and not as separate, divisible CAT claims” (quoting 8 C.F.R. § 1208.16(c)(3))).

The Board has also endorsed this approach. See Matter of J-R-G-P-, 27 I. & N. 482, 484 (BIA

2018) (“Claims under the Convention Against Torture ‘must be considered in terms of the

aggregate risk of torture from all sources, and not as separate, divisible . . . claims.’” (quoting

Quijada-Aguilar, 799 F.3d at 1308)).

We, however, have not yet addressed definitively whether the Board is required to assess

a petitioner’s risk of torture in the aggregate. A recent panel identified this trend but declined to

adopt a stance on the issue because the Board in that case had used the aggregate approach. See

Yousif, 53 F.4th at 935 & n.1 (“[W]e have not held that the [Board] must apply the aggregate

approach, and we need not make that decision today because the [Board] did an aggregate

analysis.”). Similarly, earlier panels have assumed, without deciding, that the aggregate

approach applied and that the Board was required to consider the probability of torture in the

aggregate. See Marqus, 968 F.3d at 589 (noting that “[o]ther circuits interpret § 1208.16(c)(3) to

require the [Board] 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” and then “presum[ing] for the purposes of this analysis that the

aggregation rule applies”); see also Shakkuri v. Barr, 780 F. App’x 286, 291 (6th Cir. 2019)

(“First, in determining whether an applicant has established that it is more likely than not that he

or she would be tortured if deported to the country of removal, the probability of torture from all

entities and for all reasons must be considered in the aggregate.”).

Unlike prior panels that have declined to resolve whether the Board is required to apply

the aggregate rule because the Board in those cases had applied the aggregate rule, see, e.g.,

Yousif, 53 F.4th at 935 & n.1, here, as explained below, the Board has not assessed Abdulahad’s

No. 22-3743 Abdulahad v. Garland Page 15

risk of torture in the aggregate. Therefore, and in light of the Board’s endorsement of the

aggregate approach, this court’s prior use of the standard, and the clear trend in the other circuits

that have addressed this issue, we formally adopt the standard as stated in Marqus and Matter of

J-R-G-P-. If a petitioner invokes more than one independent source of or reason for the risk of

torture, the Board must consider the petitioner’s risk of torture in the aggregate. Matter of J-R-

G-P-, 27 I. & N. at 484. Under the aggregate rule, a petitioner “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%.’ Instead, the question is whether the

‘cumulative probability of torture by [all of the] entities,’ or for all reasons, ‘exceeds 50%.’”

Marqus, 968 F.3d at 589 (quoting Shakkuri, 780 F. App’x at 291)).5

Here, the Board made clear that it was not applying the aggregate approach and instead it

focused almost entirely on Abdulahad’s status as Chaldean Christian. See, e.g., A.R. at 5

(8/24/2022 BIA Dec. at 3) (discounting the 2020 Iraq Crime and Safety Report, which “reflects

that Iranian-backed Shia militia groups have launched attacks throughout Iraq to threaten

coalition forces and encourage expulsion of United States and coalition forces” because “the

report d[id] not detail torture against Chaldean Christians”); id. at 8 (8/24/2022 BIA Dec. at 6)

(finding that Abdulahad did not establish a reasonable likelihood of torture because “the

evidence does not reflect a reasonable likelihood . . . that [he] would be detained at a checkpoint

because he is a Christian”).

The Board dedicated much of its decision to determining whether the evidence was new,

cumulative, or material, id. at 3–7 (8/24/2022 BIA Dec. at 1–5), and discussed Abdulahad’s risk

of torture in only two paragraphs, id. at 7–8 (8/24/2022 BIA Dec. at 5–6). In the first paragraph

on this topic, the Board found that “the evidence does not reflect a reasonable likelihood that

[Abdulahad] can show that any persecutor or Iraqi official would specifically intend to inflict

severe pain or suffering on him.” Id. at 7 (8/24/2022 BIA Dec. at 5). In other words, there was

no risk of torture that was directed at Abdulahad specifically—a separate requirement for DCAT

5The dissent contends that we impose a new legal requirement on the Board. Dissent at 32 (describing the

aggregate approach as a “new legal imposition”). This is plainly incorrect because the Board’s own precedent has

required that it apply the aggregate approach since 2018. See Matter of J-R-G-P-, 27 I. & N. at 484.

No. 22-3743 Abdulahad v. Garland Page 16

relief. Then, in the following paragraph, the Board explicitly engaged in a causal-chain analysis6

by listing the chain of events that Abdulahad included in his motion, citing the legal standard for

the causal-chain analysis, and evaluating the causal-chain claim in a single sentence. Id. at 8

(8/24/2022 BIA Dec. at 6). The Board did not cite the Matter of J-R-G-P- standard at any point

in the decision and did not include any analysis that resembled the aggregate approach. Because

we “may not assume that the Board considered factors that it failed to mention in its opinion,”

Preçetaj, 907 F.3d at 458, there is no basis to find that the Board applied the aggregate approach.

Even if the Board integrated its aggregate and causal-chain analyses as the dissent

proposes,7 there is no basis to conclude that there was an analysis of Abdulahad’s aggregate

claim that was independent of his causal-chain claim. We do not suggest, as the dissent states,

that “the Board’s causal[-]chain analysis cannot satisfy its obligation to engage in an aggregate

analysis.” Dissent at 33. The causal-chain and aggregate analyses can and should be integrated

if the petitioner’s claims are interdependent. The aggregate and causal-chain approaches are not

mutually exclusive, and petitioners can raise “both independent and interdependent probabilities

of torture” as Abdulahad did here. Shakkuri, 780 F. App’x at 292. Without any indication of an

independent analysis of the aggregate claim, we cannot assume there was one.

To be clear, the Board is not required to analyze independently a claim in the aggregate

in all cases; it is, however, required to analyze the claims made by the petitioner. See Marqus,

6The Board is required to apply a causal-chain analysis when a petitioner claims that the evidence shows

that a “hypothetical chain of events is more likely than not to happen” and, as a result, there is a “probability of

torture.” Matter of J-F-F-, 23 I. & N. Dec. 912, 917–18 (AG 2006). The Board construed a portion of Abdulahad’s

claim as a causal-chain claim because it depended on Abdulahad encountering checkpoints after leaving the airport,

being detained at one of the checkpoints, and thereafter, being tortured. A.R. at 8 (8/24/2022 BIA Dec. at 6).

Abdulahad does not explicitly argue that the Board’s causal-chain analysis was incorrect; instead, he argues that the

Board was also required to consider his other claims and to do so in the aggregate. Pet’r Br. at 37 (“Critically, the

aggregate and causal-chain approaches are neither inconsistent nor mutually exclusive, and applicants frequently

raise ‘both independent and interdependent probabilities of torture.’” (quoting Shakkuri, 780 F. App’x at 292)).

7The dissent incorrectly states that “the Board acknowledged a few of Abdulahad’s traits, including his

status as a deportee” in the Board’s “hypothetical causal[-]chain analysis.” Dissent at 33 (citing A.R. at 8

(8/24/2022 BIA Dec. at 6)). The Board’s causal-chain analysis does not use the word deportee and, even if it had,

the word deportee does not encapsulate what the dissent suggests. Cf. infra n.8. Moreover, the Board’s analysis in

this paragraph is two sentences in which the Board assessed Abdulahad’s Christianity, but no other traits. See A.R.

at 8 (8/24/2022 BIA Dec. at 6) (“For instance, while the evidence shows that Iraqi government officials tortured

detainees, the evidence does not reflect a reasonable likelihood that it is more likely than not that the respondent

would be detained at a checkpoint because he is a Christian and that it is more likely than not that he would then be

tortured.”).

No. 22-3743 Abdulahad v. Garland Page 17

968 F.3d at 592 (stating that the Board must “‘analyze and explain the basis on which it decides

against [the petitioner],’ meaning it must actually consider . . . the arguments put forth by the

[petitioner]” (quoting Preçetaj, 907 F.3d at 459)). Here, Abdulahad has made an independent

aggregate claim, A.R. at 75 (6/9/2022 Mot. to Reopen at 9), and there is no basis to conclude that

the Board analyzed it.

Finally, the government suggests that the Board was “simply responding to

[Abdulahad’s] argument that” his risk of torture relies on a causal chain. Resp’t Br. at 45.

Although Abdulahad may have made a causal-chain claim, the government’s argument does not

address the fact that the Board did not evaluate Abdulahad’s independent argument—explicitly

invoked in his motion to reopen—that his risk of torture should be considered in the aggregate.

See A.R. at 75 (6/9/2022 Mot. to Reopen at 9) (listing Abdulahad’s characteristics that put him at

risk of torture and arguing that “[i]ndividually or in combination, these factors make it more

likely than not that he will be tortured in Iraq”). Accordingly, we hold that the Board abused its

discretion by failing to apply the aggregate approach.

3. Particularized Risk of Torture

Abdulahad next argues that even if the Board applied the correct legal standards, it

abused its discretion by failing to articulate a reasoned basis for concluding that he did not

establish a reasonable likelihood of torture. Pet’r Br. at 41. Although the Board is not required

“to mention every piece of evidence before it or every logical element of a motion, it is

nevertheless compelled to analyze and explain the basis on which it decides against a petitioner.”

Preçetaj, 907 F.3d at 458 (quoting Lindor v. Holder, 317 F. App’x 492, 498 (6th Cir. 2009)). If

the Board “does not articulate a reasoned basis for rejecting the motion or fails to consider all the

aspects of the petitioner’s claim, it has abused its discretion.” Id. at 459 (quoting Habchy v.

Filip, 552 F.3d 911, 915 (8th Cir. 2009)). “Cursory, summary, or conclusory statements are

inadequate.” Daneshvar, 355 F.3d at 626. But, if a “necessary element” of the petitioner’s claim

fails, the Board “owe[s] no duty to rehearse the rest of [the petitioner’s] evidence for sake of

completeness.” Yan Xia Zhang v. Mukasey, 543 F.3d 851, 854–55 (6th Cir. 2008).

No. 22-3743 Abdulahad v. Garland Page 18

The Board abuses its discretion if it explicitly considers some but not all of the critical

bases of a petitioner’s claim. See Morales-Morales v. Garland, No. 22-3134, 2022 WL

17660787, at *4 (6th Cir. Dec. 14, 2022) (finding that the Board abused its discretion because it

addressed whether the petitioner was persecuted based on two of her claimed social groups but

“the [Board] did not address whether [the petitioner’s] testimony . . . established that she was

persecuted because of her status as an indigenous Guatemalan woman”—a third and separate

social group that the petitioner claimed); Preçetaj, 907 F.3d at 459 (finding that the Board

abused its discretion because it did not address the petitioner’s claim based on “issues concerning

her family’s political activities”); Lindor, 317 F. App’x at 496–98 (finding that the Board abused

its discretion, despite considering the petitioner’s claim based on his own political speech,

because the Board did not address the petitioner’s claim based on his family’s political

persecution in Haiti). Similarly, it is an abuse of discretion if the Board “fail[s] to consider

several critical pieces of evidence.” Mandebvu v. Holder, 755 F.3d 417, 431 (6th Cir. 2014); see

also Mostafa v. Ashcroft, 395 F.3d 622, 625–26 (6th Cir. 2005) (finding the Board abused its

discretion where the Board failed to consider relevant record evidence because the “reports were

never mentioned in the Board’s opinion”).

As noted above, the Board dedicated most of its decision to discussing whether

Abdulahad’s evidence was “new,” “cumulative,” or “material,” such that reopening was

warranted. See supra Part III.B.1; A.R. at 4–7 (8/24/2022 BIA Dec. at 2–5). The Board then

dedicated only two paragraphs to assessing Abdulahad’s risk of torture. A.R. at 7–8 (8/24/2022

BIA Dec. at 5–6). In these paragraphs, the Board noted that Abdulahad’s argument included a

risk of torture based on his status as a Chaldean Christian, the “rising tensions between the

United States and Iran,” and Abdulahad’s perceived “danger to Iraqi society.” Id. at 8

(8/24/2022 BIA Dec. at 6). Yet, the Board’s analysis explicitly explained why Abdulahad’s

evidence was insufficient to establish a risk of torture based only on his status as a Chaldean

Christian. Id. at 7 (8/24/2022 BIA Dec. at 5) (“Although the evidence reflects . . . that Christians

remain at high risk of persecution in Iraq, the evidence does not reflect a reasonable likelihood

that the respondent can show that any persecutor or Iraqi official would specifically intend to

inflict severe pain or suffering on him.”); id. at 8 (8/24/2022 BIA Dec. at 6) (“[T]he evidence

does not reflect a reasonable likelihood that it is more likely than not that the respondent would

No. 22-3743 Abdulahad v. Garland Page 19

be detained at a checkpoint because he is a Christian and that it is more likely than not that he

would then be tortured.”). Because the Board’s analysis of Abdulahad’s risk of torture does not

mention any of his other claims, there is no basis to conclude that the Board considered the other

characteristics that he argues put him at risk of torture.8

The Board’s failure to analyze Abdulahad’s other characteristics is an abuse of discretion.

See, e.g., Morales-Morales, 2022 WL 17660787, at *4. And, even if this court could assume that

the Board considered each characteristic that Abdulahad raised, the Board failed to “explain the

basis on which it decide[d] against” him. Preçetaj, 907 F.3d at 458 (quoting Lindor, 317 F.

App’x at 498).

Abdulahad also argues that the Board abused its discretion because it did not articulate a

rational explanation for why it concluded that Abdulahad did not establish a particularized risk of

torture. Pet’r Br. at 47. To establish prima facie eligibility for DCAT relief, Abdulahad must

establish a “particularized threat of torture.” Almuhtaseb v. Gonzales, 453 F.3d 743, 751 (6th

Cir. 2006) (quoting Castellano-Chacon v. I.N.S., 341 F.3d 533, 551 (6th Cir. 2003)). By way of

example, a petitioner may establish a particularized threat of torture by submitting evidence that

individuals that share the petitioner’s characteristics are being tortured in the country of removal,

see Marqus, 968 F.3d at 591 (explaining that “evidence of torture of Chaldean Christians is

sufficient to show a particularized threat” of torture to support a CAT claim), or evidence that the

petitioner was previously tortured in the country of removal and that the threat of torture

remains, see Bi Xia Qu v. Holder, 618 F.3d 602, 610 (6th Cir. 2010) (finding that the petitioner

“may have a viable claim for CAT protection” because she credibly testified about past instances

of torture).9 Evidence that is “too generalized and too speculative” cannot “form the basis of

relief.” Cruz-Samayoa v. Holder, 607 F.3d 1145, 1155–56 (6th Cir. 2010).

8The dissent suggests that Abdulahad’s status as a deportee “subsume[s]” his other claimed bases for relief,

Dissent at 33 n.2, but this characterization assumes that Iraqi deportees typically spend a long period of time in the

United States, lack any meaningful ties to Iraq, and do not have Iraqi identification documents. There is no basis to

make such broad assumptions and, indeed, many people may have been deported immediately upon arrival to the

United States and, therefore, would likely not share any of the above characteristics with Abdulahad.

9Cf. Castallano-Chacon, 341 F.3d at 552 (finding that the petitioner did not establish a particularized risk

of torture because his “evidence described the targeting of young gang members, generally twenty-three-years-old or

younger” and the petitioner was “not similarly situated since [he was] twenty-seven-years-old”); Almuhtasehb,

No. 22-3743 Abdulahad v. Garland Page 20

Here, the Board explained that Abdulahad’s evidence showed that the PMFs “commit

gross human rights violations, including torture, that Iraqi government officials have employed

torture and other cruel treatment or punishment, and that Christians remain at high risk of

persecution in Iraq.” A.R. at 7 (8/24/2022 BIA Dec. at 5). The Board also suggested that the

evidence “might support [Abdulahad’s] argument that Iraqi Christians or deportees are at risk of

detention and torture.” Id. at 5 (8/24/2022 BIA Dec. at 3). Nonetheless, the Board concluded,

without additional explanation, that “the evidence does not reflect a reasonable likelihood that

[Abdulahad] can show that any persecutor or Iraqi official would specifically intend to inflict

severe pain or suffering on [Abdulahad].” Id. at 7 (8/24/2022 BIA Dec. at 5).10

In addition to failing to explain why Abdulahad’s status as a Chaldean Christian was

insufficient, the Board also did not determine whether any of the other bases of Abdulahad’s

claim—such as his ties to the United States, criminal history, or lack of identification

documents—established a particularized risk of torture, either independently or in conjunction

with one another. Without additional explanation from the Board, we cannot discern whether the

Board’s analysis was correct.11 Thus, the Board abused its discretion by not articulating a

reasoned basis for its decision that addressed the relevant information. See Preçetaj, 907 F.3d at

459 (“[I]f [the Board] does not articulate a reasoned basis for rejecting the motion . . . , it has

abused its discretion.”).

453 F.3d at 746, 751 (finding that the petitioner’s evidence of violence against Palestinians in the West Bank could

not establish a particularized threat of torture because the petitioner claimed relief based on her family members’

political views).

10Yousif does not alter this analysis because it is factually distinct from Abdulahad’s case. Cf. Dissent at

31. Stated simply, Yousif testified at his merits hearing that he felt there was no particularized threat against him,

and, in his motion to remand, he presented evidence that was cumulative of his merits hearing evidence depicting

general threats of violence and harms that did not amount to torture. Yousif, 53 F.4th at 932, 934. Unsurprisingly,

we denied Yousif’s petition to review the Board’s decision denying the motion to reopen. Id. at 936–37.

11The dissent concludes that “[t]he Board was within its discretion to determine that Abdulahad’s mere

identification of conditions in Iraq and his own characteristics was not enough” based on the Board’s single sentence

of reasoning and the cases cited thereafter. Dissent at 30–31. The dissent does not and cannot identify any aspect of

the Board’s particularized-risk reasoning that addresses Abdulahad’s other claimed bases of relief. See supra n.8.

Moreover, even if, as the dissent suggests, the Board correctly analyzed Abdulahad’s particularized risk based on his

Christianity, the Board would still have failed to address whether Abdulahad faced a particularized risk of torture

based on his other characteristics. Because the Board “fail[ed] to consider all the aspects of the petitioner’s claim, it

has abused its discretion.” Preçetaj, 907 F.3d at 459 (quoting Habchy v. Filip, 552 F.3d 911, 915 (8th Cir. 2009)).

No. 22-3743 Abdulahad v. Garland Page 21

4. Harmless Error

Finally, the government argues that we should deny Abdulahad’s petition because any

errors the Board made were harmless. Resp’t Br. at 34–35 (citing Japarkulova v. Holder, 615

F.3d 696 (6th Cir. 2010)). Generally, we should “remand a case to an agency for decision of a

matter that statutes place primarily in agency hands.” I.N.S. v. Orlando Ventura, 537 U.S. 12, 16

(2002) (per curiam); see also Thomas, 547 U.S. at 186–87 (remanding a case to the Board

because “[t]he agency ha[d] not yet considered” the facts or “whether the facts as found fall

within a statutory term” and thus the Ninth Circuit should not have “determin[ed] . . . the matter

in the first instance”). “This principle has obvious importance in the immigration context”

because “[t]he agency can bring its expertise to bear upon the matter; it can evaluate the

evidence; it can make an initial determination; and, in doing so, it can, through informed

discussion and analysis, help a court later determine whether its decision exceeds the leeway that

the law provides.” Orlando Ventura, 537 U.S. at 16–17.

In this Circuit, we have endorsed a limited application of the harmless-error doctrine in

the immigration context. “When . . . the [Board] does not make the proper inquiry and legal

conclusions, supported by legal analysis and reasoning, the ‘proper course, except in rare

circumstances, is to remand to the agency for additional investigation or explanation.’”

Mapouya v. Gonzales, 487 F.3d 396, 405 (6th Cir. 2007) (quoting Thomas, 547 U.S. at 186).

“[S]imply because the Board may reach the same result upon remand (and of course, it may not)

does not render the Board’s action ‘harmless’” because “[t]he Board must articulate the rationale

for this decision.” Preçetaj, 907 F.3d at 459. If “the agency’s reasoning was inadequate, its

decision may be upheld on the basis of harmless error if the petitioner’s prospects are otherwise

so weak that there is no ‘reason to believe . . . remand might lead to a different result.’”

Japarkulova, 615 F.3d at 701 (quoting Shkabari v. Gonzales, 427 F.3d 324, 328 (6th Cir. 2005)).

In other words, remand is not required when doing so “would be futile.” Karimijanaki v. Holder,

579 F.3d 710, 721 (6th Cir. 2009).

Here, the Board’s errors impacted every aspect of its decision and therefore, this is not a

case in which the “petitioner’s prospects are otherwise so weak that there is no ‘reason to believe

that . . . remand might lead to a different result.’” Japarkulova, 615 F.3d at 701 (quoting

No. 22-3743 Abdulahad v. Garland Page 22

Shkabari, 427 F.3d at 328). More specifically, the Board applied the incorrect legal standard

when determining whether the evidence was new, cumulative, or material;12 did not assess

Abdulahad’s claims in the aggregate; and did not sufficiently explain or consider the evidence

related to his particularized likelihood of torture.13 See supra Parts III.B.1–3.

A closer review of the evidence also supports this conclusion. For example, when

denying Abdulahad’s DCAT petition in 2018, Immigration Judge Paruch reasoned that the threat

from Da’esh was essentially non-existent because Da’esh had been “routed from all but a small

portion of Iraq.” A.R. at 1148 (2/28/2018 IJ Order at 11) (quotations omitted). As it related to

the PMFs, Immigration Judge Paruch stated that Abdulahad would be at risk only if he had ties

to Da’esh and that Abdulahad’s “long residence in the United States . . . essentially exonerates

him from any fear of detention or harm” by the PMFs. Id. at 1150 (2/28/2018 IJ Order at 13).

Immigration Judge Paruch also emphasized that any PMF human-rights violations were being

investigated by the Iraqi government and therefore, the government did not acquiesce to this

harm. Id. at 1149–50 (2/28/2018 IJ Order at 12–13).

In contrast, Abdulahad’s new evidence suggests that the situation has materially

worsened, particularly for someone with his characteristics. By way of example, the PMFs that

have been committing human-rights abuses are concentrated in ethnically and religiously diverse

12The dissent contends that the Board’s conclusion that much of Abdulahad’s evidence was previously

available or cumulative was harmless because only ten months elapsed between Abdulahad’s merits hearing and his

first motion to reopen. Dissent at 28. Although factually accurate, the dissent assumes that country conditions could

not materially change in ten months and, thus, fails to engage meaningfully with the substance of the evidence.

Instead, the dissent offers only the conclusory statement that “[t]here is no evidence in the record that conditions in

Iraq in the ten months between February and December 2018 changed materially.” Id. As is explained below, see

infra pp. 22–25, an assessment of the evidence in the record, using the correct temporal comparison, reveals that this

is far from the “rare circumstance[]” in which remand would be futile. Mapouya, 487 F.3d at 405 (quoting Thomas,

547 U.S. at 186).

The dissent also contends that the Board’s use of an incorrect legal standard for assessing whether evidence

was new or cumulative was harmless error because the Board also concluded that Abdulahad’s evidence was not

material. Dissent at 28–29. This misstates the record. The Board disregarded much of Abdulahad’s evidence as

cumulative or not new and never addressed whether many pieces of evidence were material. See A.R. at 5–7. Thus,

even if we assume that the Board’s materiality determinations were correct—which, as explained above, they were

not—this cannot form “an independent and sufficient ground to deny [the] motion to reopen.” Dissent at 28.

13The dissent would also find that the Board’s failure to conduct the aggregate analysis and failure to

provide a reasoned explanation as to the particularized risk of torture were harmless errors because there is an

independent basis to uphold the decision: the Board’s determination that Abdulahad did not introduce new, material

evidence. Dissent at 33–34. For the reasons already explained, the Board applied the incorrect legal standards when

analyzing whether evidence was new or material. See supra Part III.B.1.

No. 22-3743 Abdulahad v. Garland Page 23

areas, such as where Christians reside in the Ninewa Province, and the PMFs have been

specifically targeting Christians and other religious minorities. See A.R. at 92 (2021 Human

Rights Report: Iraq at 4) (“Iran-aligned [PMFs] engaged in killing, kidnapping, and extortion

throughout the country, particularly in ethnically and religiously mixed provinces.”); id. at 98

(2021 Human Rights Report: Iraq at 10) (“There were reports of Iran-aligned PMF groups also

arbitrarily or unlawfully detaining . . . Christians, and other members of minority groups in

Ninewa Province. There were numerous reports of 30th and 50th PMF Brigades’ involvement in

extortion, illegal arrests, kidnappings, and detention of individuals without warrants.”); id. at 129

(2021 Human Rights Report: Iraq at 58) (“Government forces, particularly certain PMF groups,

and other militias targeted members of ethnic and religious minority groups, as did the remaining

active ISIS fighters.”).

Additionally, the PMFs have become increasingly violent towards U.S. officials and

citizens. See A.R. at 137 (9/2/2021 Iraq Security Report at 2) (assessing Baghdad and Erbil as

“CRITICAL-threat locations for terrorism directed at or affecting official U.S. government

interests” and warning that “the kidnapping threat comes almost exclusively from militia groups,

who may use it as a method to undermine U.S. diplomatic, military, and economic objectives in

Iraq, or from criminal groups targeting individuals they perceive to be wealthy”); A.R. at 378

(5/2019 Lattimer Decl. at 7 ¶ 18) (stating that the PMFs that are not affiliated with Iran “also

display openly anti-American animus”); A.R. at 390–91 (2/2020 Smith Decl. at 6 ¶ 26) (noting

that in “November 2019, Iran-backed PMF militias increased the frequency with which they

fired rockets at the U.S. Embassy,” in December 2019 “PMF militia members, followers, and

some commanders breached the U.S. Embassy compound in Baghdad and burned a portion of

the outer facility,” in January 2020 the United States “assassinat[ed] . . . Qassem Soleimani and

Iraqi PMF militia leader Abu Madi al-Muhandis,” and in January 2020 “[t]ens of thousands of

Iraqis marched in multiple cities . . . to protest the U.S. killing of General Soleimani and the U.S.

military presence in Iraq”); id. at 395 (2/2020 Smith Decl. at 11 ¶ 37 (explaining that the PMFs

have engaged in “open warfare against U.S. forces, U.S. interests, and individuals associated

with the United States” through “forced disappearances, torture, murder, ethnic/sectarian

cleansing and other mass displacement”).

No. 22-3743 Abdulahad v. Garland Page 24

The PMFs have been targeting U.S. citizens because the PMFs believe that U.S. citizens

are involved in the ongoing protests. See A.R. at 213 (5/12/2020 Crime and Safety Report at 1)

(stating that Iran-backed PMFs “have resorted to launching more frequent and lethal indirect fire

incidents throughout Iraq in order to threaten the Coalition forces” in response to “anti-

government protests” and noting that the “attacks may not distinguish between official and

unofficial U.S. travelers,” so U.S. citizens should “exercise extreme vigilance, particularly

during movements”); A.R. at 394 (2/2020 Smith Decl. at 10 ¶ 36) (stating that there “is a false

but widespread and publicly voiced belief by prominent politicians, security officials, PMF

militia leaders, and Iranian officials that the U.S. is behind and actively supports the protests”).

The violence has escalated to the point that the U.S. ordered non-essential government

employees to evacuate from the embassy in Baghdad, A.R. at 134 (4/15/2022 Travel Advisory at

2), and sanctioned Iraqi militia leaders for the militia’s activities, A.R. at 368 (7/2019 New York

Times Article at 1) (reporting that President Trump “impos[ed] economic sanctions on” two

militia leaders in Iraq—“the head of the 50th Brigade, and . . . the head of the 30th Brigade”—

because they were “involved in acts of corruption, extortion and intimidation in Nineveh

Province, which has minority populations of Christians and Yazidis”).

Finally, the Iraqi government’s investigations into the PMFs have not resulted in any

form of accountability and the PMFs have continued to gain power by infiltrating the

government. See A.R. at 91 (2021 Human Rights Report: Iraq at 3) (stating that the PMFs

“operated with impunity” and that, despite the government’s efforts to “identify, investigate, and

prosecute” human rights abuses, these abuses were “rarely punished”); A.R. at 131 (2021 U.S.

Comm’n on Int’l Religious Freedom at 1) (“In 2020, the PMF operated with impunity in the

Nineveh Plains and Sinjar, committing heinous [human rights] violations against [religious

minorities].”); A.R. at 396 (2/2020 Smith Decl. at 12 ¶ 40) (stating that “political coalitions led

by PMF militia leaders were the top two vote-getters in the May 2018 national elections” and

“[t]his political win has increased the influence and reach of these militias in the Iraqi

government”).

Daniel Smith, in his February 2020 expert declaration, also suggested that the

government’s experts, Denise Natali and Michael Rubin, would agree that the threat posed by the

No. 22-3743 Abdulahad v. Garland Page 25

PMFs has increased. See A.R. at 397 (2/2020 Smith Decl. at 13 ¶¶ 43–44) (explaining that

Natali has publicly stated that militias “obstruct assistance, they stoke sectarian tensions[,]

prevent [internally displaced persons from] return[ing], destabilize local politics, and exacerbate

the conflict economy” and that Rubin authored a 2019 article in which he stated “[s]ymbolic

action to take on Iranian-backed militias is easy, but [the Iraqi government’s] July executive

order did little to tackle the substantive problems,” such as “stop[ping] the militias from

individual recruitment and training”).

Accordingly, this is not a case in which remand would be futile. See Karimijanaki, 579

F.3d at 721.

IV. CONCLUSION

For the foregoing reasons, we GRANT the petition, VACATE the Board’s decision, and

REMAND the case to the Board for proceedings consistent with this opinion.

No. 22-3743 Abdulahad v. Garland Page 26

_________________

DISSENT

_________________

JULIA SMITH GIBBONS, Circuit Judge, dissenting. Because I disagree that the Board

of Immigration Appeals (“the Board”) abused its discretion in this case, I respectfully dissent.

I.

At the outset, recall that we review the Board’s decision for abuse of discretion. Preçetaj

v. Sessions, 907 F.3d 453, 457 (6th Cir. 2018). This is a relaxed, undemanding standard,

especially in the context of motions to reopen. “The Supreme Court has made clear that

reopening is discretionary with the BIA and that the BIA retains broad discretion to grant or

deny such motions.” Id. (quoting Alizoti v. Gonzales, 477 F.3d 448, 451 (6th Cir. 2007))

(emphasis added). “Because the BIA has such broad discretion, a party seeking reopening . . .

bears a ‘heavy burden.’” Id. (quoting Alizoti, 447 F.3d at 451). Appellate courts must accord

“great deference” to the Board’s denial of motions to reopen because, as the Supreme Court

acknowledged, “[t]here is a strong public interest in bringing litigation to a close as promptly as

is consistent with the interest in giving the adversaries a fair opportunity to develop and present

their respective cases.” Bi Feng Liu v. Holder, 560 F.3d 485, 489 (6th Cir. 2009) (quoting INS v.

Abudu, 485 U.S. 94, 107 (1988)). Abdulahad has already had a fair opportunity to present his

case: This is an appeal from the denial of his third motion to reopen. See A.R. at 3. And

Abdulahad has repeatedly sought to reopen the immigration judge’s denial of his deferral of

removal, which itself resulted from a two-day merits hearing in which the parties submitted

hundreds of pages of evidence and expert testimony on country conditions in Iraq. See id. at

1139–40, 1142. “Granting such motions [to reopen] too freely will permit endless delay of

deportation” by petitioners creative enough “to continuously produce new and material facts

sufficient to establish a prima facie case.” Bi Feng Liu, 560 F.3d at 490 (quoting Abudu, 485

U.S. at 108).

Even putting aside the Board’s broad discretion, not every mistake is a reversible one.

“[E]ven when the agency’s reasoning was inadequate, its decision may be upheld on the basis of

No. 22-3743 Abdulahad v. Garland Page 27

harmless error if the petitioner’s prospects are otherwise so weak that there is no ‘reason to

believe that . . . remand might lead to a different result.’” Japarkulova v. Holder, 615 F.3d 696,

701 (6th Cir. 2010) (quoting Shkabari v. Gonzales, 427 F.3d 324, 328 (6th Cir. 2005)). As

discussed below, each of the matters addressed by the majority are either subsumed by the

deferential standard of review or fall within harmless error.

A.

The majority holds that the Board used the incorrect legal standard by comparing

Abdulahad’s evidence to his previous motion to reopen, filed on December 20, 2018, as opposed

to his merits hearing evidence, and thus the Board abused its discretion. Maj. Op. at 8–9. Even

if the Board made a mistaken comparison, its evaluation of the evidence as not new or

cumulative was harmless error.

8 C.F.R. § 1003.2(c)(1) requires that a motion to reopen “shall state the new facts that

will be proven at a hearing to be held if the motion is granted.” 8 C.F.R. § 1003.2(c)(1). The

Board may grant a motion to reopen proceedings if the “evidence sought to be offered is material

and was not available and could not have been discovered or presented at the former hearing.”

Id. As a preliminary matter, it is important to note that this standard is conjunctive: The new

evidence must be material and not available and not discoverable at the previous hearing.

Sakhawati v. Lynch, 823 F.3d 852, 857 (6th Cir. 2016) (citing Huang v. Ashcroft, 113 F. App’x

695, 698 (6th Cir. 2004)).

The majority correctly notes that the proper inquiry compares the current evidence

offered with the evidence offered at the merits hearing, not in a previous motion to reopen.1 See

Hernandez-Perez v. Whitaker, 911 F.3d 305, 317 (6th Cir. 2018); Bi Feng Liu, 560 F.3d at 491.

And the majority is correct that there are places where the Board compares Abdulahad’s offered

evidence to the evidence presented with his first motion to reopen (filed in December 2018), as

1It is not clear that “at the former hearing” must necessarily mean “the hearing before the immigration

judge” in this particular context, where the petitioner has filed multiple motions to reopen, at least one of which was

fully adjudicated on the merits. See Mbonga v. Garland, No. 22-3851, 2023 WL 6785990 (6th Cir. Oct. 13, 2023)

(rejecting the interpretation that the “former hearing” means “the last hearing before an immigration judge”).

No. 22-3743 Abdulahad v. Garland Page 28

opposed to the evidence presented at his February 2018 hearing. See, e.g., Maj. Op. at 8–9. But

those comparisons using the incorrect legal standard are harmless error.

First, those comparisons with the evidence at the first motion to reopen, as opposed to the

evidence at the merits hearing, is a distinction without a functional difference. Abdulahad’s first

motion to reopen was filed in December 2018. See A.R. at 665. This followed his merits

hearing—held in February 2018—by only ten months. See A.R. at 1261; id. at 1138. There is

no evidence in the record that conditions in Iraq in the ten months between February and

December 2018 changed materially. See, e.g., CA6 R. 25, Respondent Br., at 22–33

(demonstrating a lack of material change in country conditions from the submitted evidence). It

was thus harmless error for the Board to compare Abdulahad’s offered evidence with the

evidence submitted in December 2018, as opposed to the evidence in February 2018. There is no

reason to believe that remanding to the agency “for additional investigation or explanation”

would lead to a different result. See Mapouya v. Gonzales, 487 F.3d 396, 405 (6th Cir. 2007)

(quoting Gonzales v. Thomas, 547 U.S. 183, 186 (2006) (per curiam)).

Second, the Board held that the evidence Abdulahad submitted was not material. The

Board’s comparison of evidence submitted with his current motion and the prior motion was in

explanation to why some of the evidence was not “new,” and was separate from whether the

evidence demonstrated materially changed country conditions. Evidence is “material” if it

would change the outcome, if proved. Mbaye v. Holder, 369 F. App’x 688, 695 (6th Cir. 2010).

“Put another way, evidence must be presented to convince the BIA that ‘if proceedings before

the immigration judge were reopened . . . the new evidence offered would likely change the

result in the case.’” Abeshi v. Mukasey, 259 F. App’x 775, 778 (6th Cir. 2008) (quoting Matter

of Coelho, 20 I. & N. Dec. 464, 473 (BIA 1992)) (emphasis added). Here, the Board found that

the evidence Abdulahad submitted was not material enough to justify reopening; in other words,

it would not change the result in the case. See A.R. at 4–7. Per the regulations, that is an

independent and sufficient ground to deny a motion to reopen. 8 C.F.R. § 1003.2(c)(1);

Sakhawati, 823 F.3d at 857 (describing the motion to reopen standard as “conjunctive”); see also

Huang, 113 F. App’x at 698. Thus, any incorrect comparison was harmless error, because it

No. 22-3743 Abdulahad v. Garland Page 29

would not change the result—the evidence is still immaterial even if “new.” See Japarkulova,

615 F.3d at 701.

B.

The majority also holds that the Board abused its discretion in deciding there was no

material change in Iraq’s country conditions under the wrong legal standard. Maj. Op. at 11–12.

Specifically, the majority reiterates that incremental or incidental change does not establish

materially changed country conditions, see Matter of S-Y-G, 24 I. & N. Dec. 247, 257 (BIA

2007), whereas the escalation of persecution of an already-targeted group can establish

materially changed country conditions, see Yu Yun Zhang v. Holder, 702 F.3d 878, 880 (6th Cir.

2012). The majority holds that because the Board failed to explicitly cite or invoke this

“incremental change” language, the Board did not provide a sufficient basis for this court to

review its reasoning on the issue, and thus abused its discretion. See Maj. Op. at 11–12. But this

ignores two points: First, the Board need not invoke any magic words, and instead must provide

only a rational explanation for its decision, and second, the Board’s opinion found neither

incremental nor escalating change, but rather that there was no material change at all, thus

obviating the need to invoke either legal test.

First, there are no magic words that the Board must invoke to provide a sufficient basis to

evaluate its reasoning. The Board does not need to “write an exegesis on every contention,” but

need only “announce its decision in terms sufficient to enable a reviewing court to perceive that

it has heard and thought and not merely reacted.” Trujillo Diaz v. Sessions, 880 F.3d 244, 255

(6th Cir. 2018) (quoting Scorteanu v. INS, 339 F.3d 407, 412 (6th Cir. 2003)). The Board here

did not “merely react[]” and give a “[c]ursory, summary, or conclusory” statement. Id. (quoting

Daneshvar v. Ashcroft, 355 F.3d 615, 626 (6th Cir. 2004)). The majority faults the Board’s

opinion because the Board did not explicitly write that Abdulahad’s evidence was not material

because it showed only “incremental change” and not the “escalation” of persecution of an

already-targeted group. Maj. Op. at 11–12. But the Board’s opinion can—and did—use the

proper legal test without invoking the explicit language that the majority demands. See A.R. at 5

(“[T]his evidence (as well as the other country conditions reports and news articles) largely

reflects a continuation of the general mistreatment that Christians (and religious and ethnic

No. 22-3743 Abdulahad v. Garland Page 30

minorities) have faced in Iraq[,]” thus describing no change or incremental change and not

escalation); id. at 7 (“[T]he 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, as well as continued risk to Christian and other minority

populations in Iraq[,]” and concluding that “the attested changed country conditions are not

material to justify reopening[,]” thus describing a continuation—not escalation—of country

conditions).

Second, the Board’s decision found that there was no material change in country

conditions, as opposed to incremental change. A “continuation” of general mistreatment is not a

change. See Akrawi v. Garland, No. 21-4071, 2022 WL 3681260, at *8 (6th Cir. Aug. 25, 2022)

(finding that the “continu[ation]” of a threat does not show a material change in the threat, but

instead shows country conditions as “remaining largely unchanged”). To find mere continuation,

as opposed to intensification or escalation, was a rational and reasonable conclusion based upon

the evidence that Abdulahad submitted. See CA6 R. 25, Respondent Br., at 22–33. The Board

need not explicitly eschew the “incremental change” or “escalating change” tests, as its opinion

establishes that it found no material change at all.

The Board has provided a sufficient basis for this court to review its reasoning. The

Board found that the evidence showed a continuation of country conditions in Iraq, which is

simply no change—neither an “incremental change” nor an “escalation.” The Board thus did not

abuse its discretion.

C.

Abdulahad’s motion to reopen must show more than just new evidence of material

changes in his country of removal. Abdulahad must also show that he faces a more likely than

not chance that he would be subjected to torture. See 8 C.F.R. §§ 12.0816(c)(1), (c)(2). And

Abdulahad must show that he specifically will be tortured, as opposed to a generalized threat for

people with his characteristics. Marqus v. Barr, 968 F.3d 583, 587 (6th Cir. 2020) (“An

applicant seeking CAT relief must demonstrate that []he faces a particularized and likely threat

of torture at the hands of a public official, or with the consent or acquiescence of a public

No. 22-3743 Abdulahad v. Garland Page 31

official.”). To prove this “particularized” threat of torture, Abdulahad must provide “more than

general allegations of a threat against a group that [he] belongs to.” Saleh v. Barr, 795 F. App’x

410, 419 (6th Cir. 2019). He must show it is more likely than not that he himself would be

tortured within the meaning of CAT. Yousif v. Garland, 53 F.4th 928, 937 (6th Cir. 2022). The

Board rationally determined that Abdulahad’s evidence did not establish a reasonable likelihood

that any persecutor or Iraqi official would “specifically intend to inflict severe pain or suffering

on him.” A.R. at 7 (emphasis added). The Board cited Matter of J-E-, 23 I. & N. Dec. 291, 303

(BIA 2002), among other cases, for the proposition that an applicant must allege specific grounds

that indicate he would be personally at risk of torture upon removal. A.R. at 7. The Board’s

holding and subsequent citations demonstrate that it evaluated Abdulahad’s proffered evidence

and determined that he did not prove that he would be singled out for torture. Indeed, in Yousif

v. Garland, we similarly upheld the Board where it found that the applicant’s “new, proffered

declarations and reports, even if taken at face value, do not show that it is ‘more likely than not’

that Yousif himself would be tortured within the meaning of CAT.” 53 F.4th at 937. Even if

Abdulahad had shown materially worsened conditions in Iraq, the fact that conditions have

generally worsened does not show, in and of itself, that Abdulahad personally is at risk of

torture. See Jado v. Wilkinson, 847 F. App’x 278, 287 (6th Cir. 2021); see also Rofa v. Garland,

No. 22-3330, 2022 WL 17491839, at *4 (6th Cir. Dec. 8, 2022). The Board was within its

discretion to determine that Abdulahad’s mere identification of conditions in Iraq and his own

characteristics was not enough. See Almuhtaseb v. Gonzales, 453 F.3d 743, 751 (6th Cir. 2006),

overruled on other grounds by Guerrero-Lasprilla v. Barr, 589 U.S. 221, 228 (2020); Rofa, 2022

WL 17491839, at *4; Akrawi, 2022 WL 2293532, at *8; see also Bi Xia Qu v. Holder, 618 F.3d

602, 610 (6th Cir. 2010) (finding a likely particularized threat of torture where petitioner credibly

testified she had been kidnapped, held hostage, was the victim of attempted rape, received threats

by her attacker to have her hands and feet cut off if she attempted to escape, and that her attacker

was a well-known thug in the “underground world,” and that law enforcement did not intervene).

Here, Abdulahad’s evidence did not show it was more likely than not that he himself would be

tortured, and the Board was within its discretion to deny relief on that ground.

The majority would reverse based on the Board’s purported failure to assess Abdulahad’s

risk of torture in the aggregate. Here, for the first time in our circuit, the majority mandates the

No. 22-3743 Abdulahad v. Garland Page 32

Board apply the aggregate approach. See Yousif, 53 F.4th at 935 (“In this circuit, we have not

held that the BIA must apply the aggregate approach, and we need not make that decision today

because the BIA did an aggregate analysis.”) (emphasis in original). Although several circuits

have found that 8 C.F.R. § 1208.16(c)(3) requires an immigration judge to consider the aggregate

risk of torture as to a particular plaintiff, this is the first time we mandate such a rule. This rule

requires that if a petitioner invokes more than one independent source of or reason for the risk of

torture, “the question is whether the ‘cumulative probability of torture by [all of the] entities,’ or

for all reasons, ‘exceeds 50%.’” Marqus, 968 F.3d at 589 (quoting Shakkuri v. Barr, 780 F.

App’x 286, 291 (6th Cir. 2019)). An improperly disaggregated analysis would, on the other

hand, “for example, first conclude that the applicant failed to demonstrate it was more likely than

not that he would be tortured by rebel forces and secondly conclude that the applicant failed to

demonstrate it was more likely than not that he would be tortured by the government.” Id.

Even looking through the lens of the aggregate approach, the Board satisfied this new

legal imposition. The Board did not limit its holding to any specific entity—the Board held that

Abdulahad had “not shown a reasonable likelihood that he can establish a particularized risk of

future torture in Iraq” because Abdulahad could not show that “any persecutor or Iraqi official

would specifically intend to inflict severe pain or suffering on him.” A.R. at 7 (emphasis added).

Marqus v. Barr found that similar language in a Board opinion satisfied the aggregate analysis.

See 968 F.3d at 589–90 (holding that the Board satisfied the aggregate analysis via its singular

statement “the record does not reflect that the respondent is more likely than not to be tortured by

or with the acquiescence of a public official in Iraq”) (emphasis in original); see also Yousif, 53

F.4th at 935 (holding that the Board satisfied the aggregate analysis based on the single sentence

stating “there is insufficient evidence on this record that the Iraqi government will seek to torture

[Yousif] or that the government will acquiesce in his torture, including being willfully blind to

such action”) (citing Solaka v. Wilkinson, 844 F. App’x 797, 800 (6th Cir. 2021)). Unlike the

disaggregated analysis per Marqus, the Board did not first conclude that Abdulahad faced no risk

of torture from the Iraqi government and then conclude the same from non-state actors with the

government’s acquiescence. Marqus, 968 F.3d at 589. The Board thus aggregated the risk from

both state and non-state actors. The fact that the Board did not explicitly state that it was using

the “aggregate risk” test is not an abuse of discretion. See Trujillo Diaz, 880 F.3d at 255.

No. 22-3743 Abdulahad v. Garland Page 33

It is a closer question whether the Board failed to apply the aggregate analysis to

Abdulahad’s stated reasons for torture. The Board did not initially discuss all of Abdulahad’s

particular risk factors by name in its first paragraph of analysis of torture. But the Board did, in

its second paragraph addressing torture, discuss more than Abdulahad’s Chaldean Christian faith.

There, the Board engaged in a hypothetical causal chain analysis. See A.R. at 8. In this analysis,

the Board acknowledged a few of Abdulahad’s traits, including his status as a deportee.2 Id.

The majority insinuates that the Board’s causal chain analysis cannot satisfy its obligation to

engage in an aggregate analysis. See Maj. Op. at 15–16. And although we treat the aggregate

analysis and the causal chain analysis as separate analytical frameworks, we have not held that

they are so separate that a discussion of traits in the causal chain analysis cannot as a matter of

law satisfy the aggregate analysis. See, e.g., Shakkuri, 780 F. App’x at 293; Yousif, 53 F.4th at

935–36; Saleh, 795 F. App’x at 418 (“Rather than assessing whether Petitioner would be picked

up for each reason individually, the BIA took account of the independent reasons Petitioner may

be identified in total in its analysis.”). And so I cannot say that the Board abused its discretion

by conducting the aggregate analysis within the context of a causal chain analysis. The Board’s

analysis of Abdulahad’s various traits was neither irrational nor inexplicably departed from

established policies. Preçetaj, 907 F.3d at 457. Further, the location of the aggregate analysis

within the causal chain analysis is harmless error—there is nothing to indicate that the result of

the aggregate analysis will be any different upon reversal. See Japarkulova, 615 F.3d at 701.

Even if the Board erred by failing to apply the aggregate analysis to Abdulahad’s six

reasons for torture, and even if this error was not harmless, this still does not require reversal.

There are three independent grounds on which the BIA might deny a motion to reopen—“failure

to establish a prima facie case for the relief sought, failure to introduce previously unavailable,

material evidence, and a determination that even if these requirements were satisfied, the movant

would not be entitled to the discretionary grant of relief which he sought.” Yan Xia Zhang v.

Mukasey, 543 F.3d 851, 854 (6th Cir. 2008) (quoting INS v. Doherty, 502 U.S. 314, 323 (1992)).

2Abdulahad’s status as a deportee would seem to subsume a handful of his other traits, specifically his

second (that he has a lengthy residence in and strong family ties to the United States), his third (that he has no ties to

Iraq), his fifth (his lack of Iraqi identity documents), and his sixth (the notoriety of the planned mass removal of

Iraqis from the United States).

No. 22-3743 Abdulahad v. Garland Page 34

The Board need only analyze and explain the basis on which it decides against a petitioner. See

id. When a necessary element of a petitioner’s claim fails, so does his entire motion. See id.

The Board had already held that Abdulahad failed to introduce previously unavailable, material

evidence. The Board “owed no duty to rehearse the rest” of Abdulahad’s claims “for sake of

completeness.” See id. at 855.

II.

In sum, I disagree with the majority’s conclusion that the Board’s decision was an abuse

of discretion. I would affirm the Board’s denial of Abdulahad’s third motion to reopen.