Background
Maher Sabri Hanna, an Iraqi citizen and Chaldean Christian, lawfully entered the United States at age five. After two marijuana-related convictions in Michigan, an immigration judge ordered him removed to Iraq in 2001, although he was never removed. He later reopened proceedings based on changed conditions in Iraq, leaving deferral of removal under the Convention Against Torture as his remaining claim.
Hanna argued that his religion, criminal record, Americanization, lack of Iraqi identity documents, lack of family in Iraq, and inability to speak Arabic would expose him to torture by Iraqi officials or the Popular Mobilization Forces, with government acquiescence. The immigration judge declined to qualify Daniel Smith as a country-conditions expert but considered his testimony as that of a percipient witness, along with documentary evidence and expert declarations from both sides. The immigration judge denied CAT protection, and the Board of Immigration Appeals affirmed.
The Court’s Holding
The Sixth Circuit granted Hanna’s petition, vacated the BIA’s decision, and remanded. The court held that it was not apparent that the immigration judge or the BIA had assessed Hanna’s cumulative risk of torture as required. The immigration judge framed Hanna’s risk factors and potential torturers in the alternative and found no sufficient threat on any individual basis, while the BIA did not expressly or otherwise clearly demonstrate that it had considered the combined risk.
The court also held that the BIA inadequately explained why it upheld the refusal to qualify Smith as an expert despite apparently inconsistent treatment of Smith in other materially similar cases. The BIA’s observations that its unpublished decisions were nonprecedential and that the evidence presented in the other cases was unclear did not permit meaningful review of whether the differing outcomes were arbitrary and capricious. The court remanded for the BIA to assess aggregate torture risk and adequately explain its expert-witness reasoning in the first instance.
Key Takeaways
- A CAT claim requires consideration of the cumulative risk from all alleged sources and grounds of torture, even when no single risk independently exceeds the more-likely-than-not threshold.
- The BIA need not use the words “aggregate risk,” but its reasoning must make clear that it evaluated the petitioner’s risks in combination.
- When apparently indistinguishable cases treat the same proposed expert differently, the BIA must adequately explain the inconsistency to permit review under the arbitrary-and-capricious standard.
Why It Matters
The decision reinforces that immigration adjudicators may not divide a CAT claim into isolated risk factors and reject each separately without addressing their combined effect. For practitioners, it underscores the importance of presenting the petitioner’s characteristics, potential torturers, and country conditions as an integrated theory of future harm.
It also confirms that nonprecedential agency rulings can still expose unexplained inconsistencies in adjudication. Although the Sixth Circuit did not order Smith qualified as an expert or award Hanna CAT protection, it required the BIA to provide reasoning sufficient for meaningful judicial review.