Duay Jado v. Monty Wilkinson ( 2021 )

NOT RECOMMENDED FOR PUBLICATION
File Name: 21a0101n.06
No. 20-3392
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
DUAY JOSEPH JADO, )
FILED
Feb 24, 2021
)
DEBORAH S. HUNT, Clerk
Petitioner, )
)
v. ) ON PETITION FOR REVIEW
) FROM THE UNITED STATES
MONTY WILKINSON, Acting Attorney General, ) BOARD OF IMMIGRATION
) APPEALS
Respondent. )
)
BEFORE: ROGERS, DONALD, and BUSH, Circuit Judges.
ROGERS, Circuit Judge. Petitioner Duay Joseph Jado, a lawful permanent resident of the
United States found removable for committing several serious crimes, was denied deferral of
removal under the Convention Against Torture by an Immigration Judge in late 2017. He seeks
review of the Board of Immigration Appeals’ (“BIA”) third refusal to remand to the Immigration
Judge for consideration of additional evidence with respect to that determination. Each denial was
based on the absence of new evidence showing materially changed country conditions in Iraq with
respect to Chaldean Christians. Relief is not warranted, however, because the BIA’s decision to
deny Jado’s latest motion was not an abuse of its discretion. Our recent decision in another case
involving a Chaldean Christian, Marqus v. Barr, 968 F.3d 583, 587 (6th Cir. 2020), remanding to
the BIA for further consideration, does not require a remand here. In the course of reviewing three
consecutive motions to consider intervening evidence since his hearing before the Immigration
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Judge, the BIA provided adequate explanation for our review of its determination that country
conditions had not materially changed over the relevant intervening period.
Jado was born in Greece to Iraqi parents and was admitted to the United States as a refugee
in June 1979. His status was adjusted to lawful permanent resident in July 1980. Between 1997
and 2003, Jado was convicted of various crimes including theft, attempted burglary, aggravated
battery in a public place, and burglary, for which his sentences varied from probation to up to four
years in prison.
On August 12, 2005, the Department of Homeland Security commenced removal
proceedings against Jado. On October 24, 2005, the immigration judge (“IJ”) ordered Jado
removed to Iraq under 8 U.S.C. § 1227(a)(2)(A)(iii), which authorizes deportation for “[a]ny alien
who is convicted of an aggravated felony[.]” Jado did not file an appeal. The government was
unable to execute the removal order because of “Iraq’s longstanding policy of not issuing the
requisite travel documents for repatriation.”
In March 2017, the United States reached an agreement with Iraq for repatriation of Iraqi
nationals with final orders of removal. Exec. Order No. 13,780, 82 Fed. Reg. 13209, 13212 (Mar.
6, 2017). Jado filed a motion to reopen his removal proceedings, seeking leave to apply for deferral
of removal under the Convention Against Torture (“CAT”) due to the increased risk of torture
Jado believed he would face in Iraq as a Chaldean Christian. 8 C.F.R. §§ 1208.16(c)(3), 1208.17.
The IJ granted Jado’s motion and reopened his case based on the likelihood of changed conditions
in Iraq since his order of removal in 2005. On November 28, 2017, however, the IJ denied Jado’s
application for CAT deferral, following a hearing in which submitted written evidence was
discussed, but no significant testimony was taken. AR 2267-89. For nine pages, the IJ recounted
in detail an expert statement submitted by Jado and two expert statements submitted by the
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government regarding conditions for returning Iraqi Christians. Based on the totality of this
evidence, the IJ found that Jado had not met his burden to establish that it was more likely than
not that he would be tortured by, or with the acquiescence of, the Iraqi government if returned to
Iraq. The IJ gave weight to the government experts because they were based on first-hand
knowledge and were based on more current information. The IJ reasoned:
While [the government experts Rubin and Ollivant] acknowledge that
returnees may be questioned and even detained upon their arrival in Iraq, they make
clear that such detention is meant to determine whether individuals have ties to the
former Ba’athist regime, if they had defected from the Iraqi military, or if they have
previously committed a crime inside Iraq. If they do not have identification
documents, they may be detained until their identity can be confirmed. They both
state that the likelihood of detained individuals being tortured is low.
Rubin and Ollivant also assert, as does the Department of State’s 2016
Human Rights Report for Iraq, that the Iraqi government is investigating abuses by
the PMF. . . . Moreover, Rubin contends that the end of the war against Da’esh has
meant increasing accountability for the PMF. Ollivant alludes to the existence of
an “Iraqi Christian militia” found within the PMF that has been working to secure
the Christian population in the Ninewah province. Indeed, he asserts that returnees
may be detained by and/or “have concerns” with the PMF only if they have ties to
Da’esh. However, respondent’s long residence in the United States - rather than
make him a target of the PMF - essentially exonerates him. Ollivant asserts that
Iraqi Christians in particular, such as respondent, should not be concerned about
their “Westernization” because the fact that they were in the West “makes them
almost certainly innocent” of any connection to Da’esh, and both Ollivant and
Rubin emphasize that Western influences are not unwelcome or uncommon in Iraq.
Jado appealed the IJ’s evidentiary and merits rulings to the BIA and sought to introduce
new evidence in support of his CAT claim. In particular, one expert opinion dated December
2017, of Daniel Smith, a researcher who had lived in Iraq since 2007, set forth the particular
contentions as to how Christians being returned to Iraq might be tortured. He contended that Iraqi
nationals who are deported to Iraq from the United States, especially those who are suspected of
having criminal records, will be detained upon arrival in Iraq and interrogated by internal security
forces, and that the conventional practice for Iraqi Security forces included physical violence,
isolation, and other techniques that qualify as torture. He asserted that suspicion of American
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espionage and other negative intervention in Iraq permeates the country, and that the suspicion is
aggravated by reports that deportees have been convicted of major crimes, and that the declarations
of experts like Rubin and Ollivant do not meaningfully rebut this information. The Smith
declaration also described the threat of torture from Iran-backed Shi’a militias, and the Iraqi track
record of failing to protect its minority Christian citizens.
On May 24, 2018, the BIA dismissed Jado’s appeal and denied his request to consider new
evidence, which it treated as a motion to remand. Analyzing the Smith declaration, along with the
other expert declarations presented for the first time on appeal, the BIA wrote: “[t]he declarations
of Rebecca Heller, Mark [Lattimer], Daniel Smith, and Shamiran Mako, including their curriculum
vitae, are duplicates of evidence before the Immigration Judge; or if new, the respondent has not
demonstrated that this evidence was unavailable or undiscoverable prior to the Immigration
Judge’s November 28, 2017, decision . . . .” Reiterating the grounds for the IJ’s decision, the BIA
noted that the IJ had broad discretion to weigh the evidence and that Jado had failed to demonstrate
clear error in the IJ’s findings of fact. The BIA affirmed the IJ’s determination that Jado failed to
show that he was more likely than not to be tortured in Iraq, particularly in light of “the roll-back
of Da’esh territory and influence in Iraq.” The BIA further concluded that the evidence post-dating
the IJ’s 2017 decision only showed that civil strife was ongoing, but “does not establish that Iraqi
officials, or members of government-affiliated militias, are targeting or seeking to torture
Christians or returnees from the United States.” Thus because Jado could not demonstrate that he
faced a particularized threat of torture in Iraq, he did not state a valid claim for deferral under the
CAT. Jado did not seek judicial review of this decision.
Instead, on August 27, 2018, Jado filed a motion to reopen and/or reconsider the BIA’s
decision dismissing his appeal. The BIA denied the motion on September 6, 2019. The BIA first
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noted that if the motion were construed as a motion to reconsider, then it was untimely and failed
to present an “adequate basis” for reconsideration because the motion did not identify any
argument the BIA overlooked or any errors of law or fact in its prior decision. The BIA instead
construed it as a motion to reopen immigration proceedings and remand for consideration of new
evidence. Jado again presented various expert declarations to support his argument that conditions
in Iraq had materially changed since the IJ’s 2017 decision, including updated declarations from
Mark Lattimer and Smith. Smith’s affidavit contended that deportees did not receive proper
identification when returned to Iraq, putting them at greater risk of torture from anti-American
militias like the Popular Mobilization Forces (“PMF”), a majority-Shi’a militia, who would be
suspicious and hostile toward anyone with a connection to the United States, a lack of proper
identification, and/or a criminal record. Analyzing the updated expert declarations and other
evidence submitted, the BIA again concluded that Jado’s evidence did not merit remand. The BIA
explained its decision as follows:
The evidence proffered with the motion reflects, and the respondent does
not dispute, that discrimination, harassment, and episodes of violence against
Christians in Iraq is a long-standing and ongoing problem. Most of the “newly”
proffered expert opinions, country information, and news articles are largely
cumulative of the evidence previously submitted and considered by both the
Immigration Judge and the Board in dismissing the respondent’s appeal and
denying his motion to remand, including evidence relevant to the risks faced by
repatriated undocumented Iraqis in Iraq, and the feasibility of their relocating to
safety. The “newly” submitted affidavit of Mr. Daniel Smith . . . is not appreciably
different from Mr. Smith’s declarations that have previously been included in the
record. In addition, the deposition transcript of Mr. Michael Bemanke and the
declaration of Belkis Willie offer no new significant insights into the longstanding
and ongoing problems faced by undocumented Iraqi deportees from the United
States, including their ability to move or settle freely within Iraq.
When viewed with the evidence previously included in the record, the
evidence proffered with the present motion does not reflect materially changed
circumstances or country conditions since the Immigration Judge’s November 2017
decision or our decision of May 24, 2018, that affect this respondent’s eligibility
for protection under the Convention Against Torture. . . . Rather, such evidence
seemingly manifests a continuance of the ongoing and often times volatile
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circumstances that gave rise to the respondent’s first claim, which was denied by
both the Immigration Judge and this Board.
Moreover, there is nothing in the evidence proffered by the respondent
relating to his personal circumstances that is sufficient to satisfy the materiality
requirement of 8 C.F.R.§1003.2(c)(3)(ii). The proffered evidence does not reflect
that the government or any other person or organization in Iraq has ever exhibited
or expressed an interest in the respondent. Such evidence does not reflect that there
exists a reasonable possibility that the respondent would be targeted for harm rising
to the level of torture. That the respondent may be a member of a certified class in
federal litigation that has received international attention does not, standing alone,
support the conclusion that any alleged threat to the respondent’s safety in Iraq has
escalated since the time of his November 2017 merits hearing such that reopening
based on changed country conditions or circumstances should be granted.
The BIA held that Jado’s motion was time-barred, because it was filed three days after the
expiration of the 90-day filing deadline applicable to motions to reopen removal proceedings.
8 C.F.R. § 1003.2(c)(2). The BIA concluded that Jado did not meet the time-bar exception under
8 C.F.R. § 1003.2(c)(3)(ii), because: (1) he did not show that conditions in Iraq had materially
changed, only that preexisting volatile circumstances were ongoing, and (2) he could not establish
prima facie eligibility for CAT deferral based on his inability to show that he would likely be
tortured. Jado also did not seek judicial review of this determination, made by the BIA in
September 2019.
Instead, Jado filed a second motion to reconsider and/or reopen for further proceedings on
October 7, 2019. The BIA denied the motion on March 19, 2020, again construing it as a motion
to reopen proceedings and remand for consideration of new evidence for the same reasons
discussed in its previous decision. The BIA found that Jado’s motion was both time-barred,
because it came more than 90 days after the final administrative order of deportation, and number-
barred because noncitizens subject to deportation may typically only file one motion to reopen.
Reviewing the new evidence submitted with the motion, the BIA found that Jado once
again had not shown that conditions in Iraq had materially changed or that he faced a likely threat
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of torture “with or without the acquiescence of the government.” The BIA first explained that the
2018 Department of State International Religious Freedom Report on Iraq did not show that
conditions in Iraq had changed such that Jado would be more likely than not to be tortured. The
BIA also dismissed the 2018 Department of State Human Rights Report discussing crimes
committed by the PMF, concluding that Jado had not shown that based on the report, “he
personally would more likely than not be tortured by the PMF.” The BIA was also not persuaded
by Jado’s updated expert declarations. The BIA held that Jado’s updated declarations from Smith
described only incremental changes in Iraq, not materially changed conditions. The Colonel
Steven Miska affidavit describing increased anti-American sentiment did not show materially
changed circumstances that would affect Jado, because the general changes described by Miska
were “insufficiently fundamental to support reopening.” The BIA further stated that it was not
persuaded that the declarations from Belkis Wille, Scott Portman, and Lattimer, reflected changes
that were “significant enough to warrant reopening.” Finally, the BIA held that a 2019 State
Department travel advisory for Iraq was not persuasive, because Jado did not argue that the
advisory specifically related to him and did not “persuasively argue that the advisory establishes
materially changed country conditions in Iraq” on his claim. Thus, the BIA concluded that Jado
did not persuasively show “material changed country conditions that would establish a prima facie
case that he would qualify for the requested relief of deferral of removal under the Convention
Against Torture.” 8 C.F.R. § 1208.17.
Jado timely filed this appeal. He contends that the BIA erred in denying his motion to
reopen, noting that he presented significant evidence that was previously unavailable, including
expert declarations and State Department reports describing how conditions in Iraq have
deteriorated for Christians following the victories against Da’esh. He argues that the evidence he
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presented with his motion to reopen shows that he is at significant risk of torture due to multiple
factors: he is Christian, has never been to Iraq, does not speak Arabic, and has lived his entire life
in the United States. Jado requests that this court grant his petition for review and remand to the
BIA.
The BIA’s decision denying Jado’s motion did not constitute an abuse of discretion because
the BIA thoughtfully and rationally explained why the submitted evidence was not persuasive. We
have said that “[t]he BIA 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.’” Ishac v. Barr, 775 F. App’x 782, 789 (6th Cir. 2019) (quoting
Ahmed v. Mukasey, 519 F.3d 579, 585 (6th Cir. 2008)). There is no such abuse here.
The BIA denied Jado’s motion on two grounds. First, it concluded that the motion did not
meet the time- and number-bar exception because he did not demonstrate that country conditions
in Iraq had materially changed since the IJ’s 2017 decision denying his CAT claim. See 8 C.F.R.
§ 1003.2(c)(2). See also Trujillo Diaz v. Sessions, 880 F.3d 244, 249 (6th Cir. 2018). Second, it
held that Jado did not persuasively show “material changed country conditions that would establish
a prima facie case that he would qualify for the requested relief of deferral of removal under the
Convention Against Torture.” The BIA did not abuse its discretion in reaching these conclusions.
Jado contends that the BIA abused its discretion by conducting only a “cursory analysis”
of the evidence. This argument is without merit. The BIA identified and addressed the key
exhibits supporting the motion, describing why it did not find the submitted evidence persuasive.
Jado states that he presented 21 new exhibits totaling near 350 pages in support of his motion, but
this fact has little bearing on his case. It is not the quantity of evidence that matters, but its
substance. Here, the evidence does not show that conditions in Iraq have materially changed or
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that Jado was reasonably likely to face a personal threat of torture. The party seeking to reopen
immigration proceedings bears the “heavy burden” of showing that the new evidence is material,
meaning that if proceedings were reopened, the new evidence “would likely change the result in
the case.” Hernandez-Perez v. Whitaker, 911 F.3d 305, 320-21 (6th Cir. 2018) (quoting Matter of
Coelho, 20 I. & N. Dec. 464, 472-73 (B.I.A. 1992)). Jado has not shown that any of the evidence
he submitted would be sufficient to change the outcome here.
First, the BIA did not abuse its discretion because it rationally concluded that Jado’s
evidence did not show materially changed conditions in Iraq. Specifically, Jado failed to identify
any facts or evidence showing that conditions have materially worsened for Iraqi Americans or
Chaldean Christians relative to 2017, when the Iraqi government was dealing with the remnants
of Da’esh and attempting to establish order after the war. To determine whether country conditions
have materially changed, the BIA must compare “the evidence of country conditions submitted
with the motion to those that existed at the time of the merits hearing below.” Bi Feng Liu v.
Holder, 560 F.3d 485, 491 (6th Cir. 2009) (quoting Matter of S-Y-G-, 24 I. & N. Dec. 247, 253
(B.I.A.2007)).
In Liu, we observed that the relevant merits hearing from which to measure the motion to
reopen was the IJ’s final order of removal, meaning the critical period for determining whether
conditions had changed was between the time when the IJ ordered removal and when Liu filed his
motion to reopen before the IJ. Id. Here, although Jado received his final order of removal in
2005, his claim for deferral of removal under the CAT was decided on the merits in 2017.
Accordingly, the merits hearing relevant to this case is likely the IJ’s 2017 decision denying Jado’s
CAT claim. However, the extensive procedural background in this case complicates the
determination of which proceeding should be used to measure changed conditions. Given that the
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motion at issue here is identical to Jado’s original motion to reopen filed in August 2018, and he
did not seek judicial review of the BIA’s September 2019 denial of that motion, the critical time
period to measure changed conditions is arguably from the filing of the previous motion to reopen
in 2018. The parties offer no guidance on this issue. Jado presents no argument on appeal as to
what the critical time period is, while the Government declines to identify the time period, instead
arguing that country conditions have not changed regardless of the hearing used to measure
changed conditions.
Were we to measure from the 2018 motion to reopen, our analysis would turn on whether
Jado’s newly proffered evidence differs from the evidence previously submitted to the BIA such
that it now persuasively demonstrates changed country conditions. The narrower timeframe would
significantly diminish Jado’s chances of meeting this burden, particularly because our analysis
would consider the two previous decisions from the BIA denying Jado’s request for remand.
Several of Jado’s updated expert declarations, such as those from Smith, Lattimer, and Wille, rely
on information from 2018 and earlier that was already considered by the BIA. Indeed, Jado’s
primary contentions relating to the risk of torture upon arrival in Iraq or the lack of proper
identification at PMF checkpoints were presented in previously submitted affidavits from Smith
and others, and these contentions were squarely addressed by the BIA. Thus, Jado likely would
not be able to show changed country conditions were we to measure conditions from the filing of
his 2018 motion to reopen. We need not decide the issue here, however, because even taking the
IJ’s 2017 decision as the relevant merits hearing from which to begin our analysis, as the BIA
appeared to do, Jado has not demonstrated that conditions in Iraq have materially changed since
then.
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The BIA rationally concluded that Jado’s evidence did not show that conditions had
materially changed in Iraq since late 2017. Analyzing Jado’s expert declarations, the BIA noted
that 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. “Change
that is incremental or incidental does not meet the regulatory requirements for late motions [based
on materially changed country conditions].” Matter of S-Y-G, 24 I. & N. Dec. at 257. Jado makes
no argument and identifies no evidence showing that the BIA erred in its determination that the
evidence only showed incremental changes. Furthermore, Jado points to no evidence showing that
material changes would be more likely to occur in post-war volatile Iraq than just incremental
changes.
Additionally, Jado argues that the proffered evidence demonstrates the “escalation of
human rights violations and violent atrocities in Iraq.” Even accepting that this is true and
adequately shown by the evidence, it does not mean that country conditions have changed in a way
that is material to Jado’s situation. As the BIA noted, the evidence describes the situation in Iraq
as being volatile, but it does not show that this volatility is a new feature arising only after 2017.
Violent conditions, particularly with respect to minority populations, existed well before Jado’s
initial claim for CAT protection. Our precedent makes clear that “[p]roof that a preexisting
condition continues is insufficient to establish changed country conditions.” Xiu Dong Lin v.
Holder, 574 F. App'x 623, 623 (6th Cir. 2014). Although some violent conditions may persist
today, the fact that there is ongoing violence against religious minorities does not mean that
conditions have become more hostile for Chaldean Christians and American Iraqis, much less that
Jado is more likely than not to be tortured. Indeed, Jado’s evidence describes more than just
violence against Chaldean Christians, it also describes how members of other religious groups,
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such as the Sunnis, have also been targeted for abuse. General escalation of hostilities against non-
majority religious groups is not the same as a material worsening of conditions for Christians in
Iraq.
With respect to the declarations of Smith, which from our reading of the record most
specifically detail a context for the torture said to await minority Iraqis returned after being
convicted of crimes in the United States, the BIA reasoned:
The respondent asserts that the declarations of Daniel Smith . . . establish changed
country conditions for individuals who return to Iraq. However, while we
acknowledge that the declarations describe volatile conditions, and incremental
changes in government responses to those conditions, we are not persuaded that
they show materially changed country conditions since the date of the Immigration
Judge’s decision. The declarations describe incremental changes that are the type
of changes that would be expected in the volatile atmosphere of contemporary Iraq.
We are not persuaded that the described changes are sufficiently fundamental to
support reopening.
Additionally, the BIA concluded that even if the Miska expert declaration is correct that
anti-American sentiment in Iraqi society has increased, this does not show that such conditions
would specifically affect Jado. A general dislike of America or the American government does
not make it likely that an Americanized Iraqi would be tortured by or with the acquiescence of the
government. While Jado’s evidence describes the volatile conditions in Iraq, discrete instances of
harassment and abuse toward Christians, and the poor conditions for detainees, these elements are
insufficient to meet the heavy burden of showing that conditions have worsened in a way that
would personally affect Jado’s situation as a deportee living in Iraq. Thus, because the evidence
only generally describes preexisting volatility and ongoing violent conditions, the BIA did not
abuse its discretion when it concluded that Jado failed to show that country conditions have
materially changed since late 2017.
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Second, the BIA did not abuse its discretion when it determined that Jado had not
established a prima facie case of eligibility for CAT relief, because he presented no evidence
showing that he personally faced a likely threat of torture with the acquiescence of the Iraqi
government. Because Jado has never lived in Iraq, he must essentially show that just being a
Chaldean Christian who has lived a long time in the United States by itself means that he will be
tortured. The BIA did not abuse its discretion in determining that he failed to make this showing.
To qualify for deferral of removal under the CAT, an applicant “must demonstrate that she faces
a particularized and likely threat of torture at the hands of a public official, or with the consent or
acquiescence of a public official.” Marqus, 968 F.3d at 587 (citing 8 C.F.R. §§ 1208.16(c)(2),
1208.18(a)(1); Almuhtaseb v. Gonzales, 453 F.3d 743, 751 (6th Cir. 2006)). Furthermore, “a
motion to reopen based on changed country conditions cannot rely on speculative conclusions or
mere assertions of fear of possible [torture], but instead must offer reasonably specific information
showing a real threat of individual [torture].” Harchenko v. INS, 379 F.3d 405, 410 (6th Cir. 2004)
(citations and internal quotation marks omitted). To warrant reopening, Jado must “present
evidence that reveals a reasonable likelihood that the statutory requirements for relief have been
satisfied.” Diaz, 880 F.3d at 249-50 (citations and internal quotation marks omitted). Although
the proffered evidence does suggest that torture is a “widespread practice” in Iraq, especially for
those who are imprisoned, this does not indicate that Jado himself is reasonably likely to be
detained let alone tortured. A general risk of discrimination or abuse does not make torture likely
absent more specific evidence or argumentation.
Jado has not identified any facts in the record evidence that would suggest he faces a
“particularized and likely threat of torture” with the consent of the Iraqi government. In fact, of
the 21 exhibits submitted, the only evidence Jado specifically refers to in arguing that the BIA
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erred in its findings of fact is the 2018 Department of State International Religious Freedom Report
for Iraq. The BIA directly addressed the report in its decision, observing that nothing in the report
suggests that conditions in Iraq have materially changed to the point that “he would now be more
likely than not to be tortured by, or with the acquiescence of, the Iraqi government.” The fact that
religious freedom conditions in Iraq have generally worsened does not show that Jado personally
is at greater risk of torture. Likewise, that the Iraqi government is unable or unwilling to provide
security for religious minorities similarly does not mean that torture is likely or that it would be
done by, or with the acquiescence of, the Iraqi government. It could simply mean the government
is stretched too thin and does not have the resources to protect all vulnerable individuals. While
the State Department reports do suggest that conditions in Iraq continue to be poor for religious
minorities, they do not establish a reasonable likelihood that Jado faces a “particularized and likely
threat of torture” from an Iraqi government official.
The BIA did not, as Jado argues, require that he identify the “name, rank, and badge
number” of the person likely to torture him. Rather, he needed to show that his personal
characteristics made it reasonably likely that he would be singled out for torture with the
acquiescence of a public official. The only entity Jado identifies that could potentially meet the
“public official” requirement is the PMF. He argues that the PMF, which has now been
incorporated into the Iraqi government, operates with impunity and retains “aggressive, hostile,
and violent attitudes to the United States and Christian Iraqis.” But the BIA directly addressed
this point, noting that even if Jado established that the PMF’s official status has changed since the
IJ’s 2017 decision, the evidence did not show that he personally was more likely than not to be
tortured by the PMF. Indeed, Jado’s evidence describes how Iraqi Christians have reported various
incidents of harassment and abuse at PMF-controlled checkpoints, but this showing does not
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establish that the PMF would be likely to target him for torture. Temporary delays, restrictions,
or other abuse from suspicious checkpoint personnel may be onerous, but they do not rise to the
level suggesting an intent to detain and torture someone like Jado. Furthermore, discrete instances
of harassment, restrictions on movement, and terrorist attacks against Chaldean Christians are
insufficient to show that Jado personally faces a likely threat of torture based on his religious
affiliation. Our precedent demonstrates that an applicant seeking to establish a likelihood of being
individually targeted for torture “cannot rely on speculative conclusions or mere assertions of fear
of possible persecution, but instead must offer reasonably specific information showing a real
threat of individual [torture].” Diaz, 880 F.3d at 250 (quoting Harchenko, 379 F.3d at 410). Jado
merely speculates that the PMF could torture him, but offers no specific evidence demonstrating
that the PMF would seek to single him out individually for torture. Thus, the BIA rationally
concluded that the evidence did not show that Jado could establish a prima facie case for eligibility
under the CAT.
Jado presents a generic criticism of the BIA’s decision but fails to point out specific
evidence identifying a change in conditions since the IJ’s 2017 decision. He has not identified
particular facts in the record evidence showing that it is more likely he will be tortured than in
2017. Thus, he has not met the requirements for the time- and number-bar exception based on
changed country conditions under 8 C.F.R. § 1003.2(c)(2). Additionally, Jado failed to identify
any new facts showing that he personally would face a likely threat of torture from the government
or with its acquiescence. Because Jado did not establish a prima facie case for CAT relief, he
failed to carry the “heavy burden” necessary to warrant reopening, and the BIA properly exercised
its discretion to conclude that Jado’s motion failed on this ground as well.
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Jado argues that our recent decision in Marqus v. Barr, 968 F.3d 583 (6th Cir. 2020),
requires that we remand this case. This argument is unavailing. The depth and detail in the BIA’s
three decisions addressing additional and supplemented evidence in this case makes it readily
distinguishable from the cases cited in Marqus, where we held that remand was necessary when
the BIA “cursorily denied” an applicant’s motion to reopen. Id. at 592. Unlike in Preçetaj v.
Sessions, 907 F.3d 453, 458–60 (6th Cir. 2018), the BIA here did not “den[y] relief in a five-
sentence single paragraph.” Marqus, 968 F.3d at 592. Also, unlike in Hanna v. Mukasey, 290 F.
App'x 867, 872–73 (6th Cir. 2008), the BIA did not deny Jado’s claim in a single “summary,
conclusory” paragraph. Marqus, 968 F.3d at 593. Most significantly, the BIA did not deny Jado’s
motion “with little more than a bald statement,” as was the case in Marqus itself. Id.
Here, the BIA issued a several-page decision analyzing Jado’s key evidence and his
contentions based on that evidence. Across multiple paragraphs, the BIA acknowledged various
items of record evidence but explained why their contentions were not persuasive and did not
satisfy either ground for denial. Considering that this was the third denial of a motion to reopen,
based on evidence cumulative with that presented the previous two times Jado was before the BIA,
the level of detail in the BIA’s decision here was sufficient. Also, unlike in Marqus, the BIA here
did address the conclusions in the State Department’s Human Rights and Religious Freedom
Reports, noting that even if the PMF has become more prominent, nothing in the reports showed
that the PMF or any other government-affiliated entity would likely torture Jado. 968 F.3d at 593.
The BIA analyzed all six of Jado’s expert declarations, acknowledging their major contentions and
explaining why the affidavits were not persuasive. Alongside the expert declarations and both
State Department reports, the BIA also addressed why the 2019 U.S. Commission on International
Religious Freedom Report and 2019 State Department Travel Advisory for Iraq did not save Jado’s
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motion. This discussion of the evidence, and any new facts raised, was much more detailed than
what is described in Marqus, particularly in light of the previous rulings in Jado’s case. Jado’s
failure to point to any specific facts in the record evidence that the BIA overlooked demonstrates
that the BIA carefully considered all of the relevant issues in rendering its decision.
Jado argues that the BIA erred because its decision “fails to discuss or analyze the majority
of this evidence,” referring to his submission of 21 exhibits. This argument is without merit. Jado
does not argue that the evidence not explicitly referenced in the BIA’s decision raised issues that
the BIA overlooked in its analysis. We have held that “[t]hough it need not write an exegesis on
every contention, the BIA must consider the issues raised, and announce its decision in terms
sufficient to enable a reviewing court to perceive that it has heard and thought and not merely
reacted.” Diaz, 880 F.3d at 255 (citation and internal quotation marks omitted). By analyzing the
expert declarations, State Department reports, and other key documents, the BIA explained its
evaluation of the issues relevant to Jado’s motion, certainly to the extent that the evidence may
have demonstrated a change in conditions. Thus, Jado has failed to demonstrate that the BIA
abused its discretion by opting not to discuss the remaining evidence, mainly news stories and
articles from human rights organizations, by name in its decision.
The BIA was not required to name every single exhibit in its analysis, especially in light
of its finding that the evidence was largely cumulative with Jado’s prior submissions. After the
IJ’s 2017 decision, the BIA considered new evidence submitted by Jado on three separate
occasions: the 2018 decision dismissing Jado’s CAT appeal, the 2019 decision denying Jado’s
first motion to reopen, and the 2020 decision at issue here. The BIA observed in its analysis that
the new evidence in this case was “similar” to the evidence previously submitted with his 2019
motion to reopen. The BIA went on to declare, “[w]e stated [in 2019] that most of the newly
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submitted evidence was cumulative of the evidence previously submitted and considered by both
the Immigration Judge and the Board in dismissing [Jado’s] appeal and denying his motion to
remand.” “Evidence that is ‘largely cumulative’ of that already in the record does not meet the
burden required for reopening.” Matter of S-Y-G-, 24 I. & N. at 253 (quoting Matter of Coelho,
20 I. & N. Dec. at 474)). The BIA thus did not abuse its discretion when it determined that the
evidence here was not persuasive enough to warrant reopening.
The BIA rationally explained that Jado’s evidence here was cumulative of the evidence
expressly considered in 2019, which itself was cumulative of the evidence expressly considered
by both the IJ and BIA in Jado’s initial CAT claim proceedings. Indeed, expert declarations from
Lattimer, Smith, and Wille were previously submitted to the BIA in Jado’s previous two
proceedings. In Jado’s direct appeal of the IJ’s 2017 decision, he submitted to the BIA a 2018
State Department Travel Advisory for Iraq, which is almost identical to the 2019 Travel Advisory
submitted with the motion in this case. Jado’s deliberate choice not to seek judicial review of
either the 2018 or 2019 BIA decisions indicates that he could not demonstrate any errors in the
BIA’s fact-finding with respect to the evidence proffered earlier. Because the issues have
remained the same across Jado’s extensive efforts to litigate this case, and the evidence here is
largely similar to what the BIA already analyzed, the BIA was not required to identify and discuss
each exhibit by name, and Jado failed to carry his burden of showing that consideration of the
proffered evidence would likely change the outcome of his case. Thus, the BIA did not abuse its
discretion by addressing the major contentions presented in Jado’s evidence and concluding that
denial was appropriate because the motion was time- and number- barred and did not establish a
prima facie case for relief from removal under the CAT.
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In short, Jado’s briefs now before us point to nothing specific in his third submission of
supplemental evidentiary material to the BIA that shows a change from the situation that the BIA
addressed in the decisions of earlier years, decisions that Jado did not seek review of in our court.
Without such guidance, given the BIA’s explanations each time that the new submissions were
cumulative and did not show more than an incremental material change in circumstances, the
record is sufficient to conclude that the BIA did not abuse its discretion in finding no basis for
reopening. Accordingly, we deny Jado’s petition for review.
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