Laith Shazi v. Monty Wilkinson ( 2021 )

United States Court of Appeals
For the Eighth Circuit
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No. 19-2842
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Laith Shakir Shazi
Petitioner
v.
Monty Wilkinson, Acting Attorney General of the United States; David Pekoske,
Acting Secretary, Dept. of Homeland Security
Respondents1
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Petition for Review of an Order of the
Board of Immigration Appeals
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Submitted: October 21, 2020
Filed: February 11, 2021
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Before BENTON, SHEPHERD, and KELLY, Circuit Judges.
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SHEPHERD, Circuit Judge.
Laith Shakir Shazi, a native and citizen of Iraq, petitions for review of an order
of the Board of Immigration Appeals (BIA) upholding the decision of an
immigration judge (IJ) that terminated Shazi’s withholding of removal status; denied
1
Respondents Wilkinson and Pekoske are automatically substituted for their
predecessors under Federal Rule of Appellate Procedure 43(c)(2).
his application for protection under the Convention Against Torture (CAT); and
denied his motion to remand based on new evidence. For the following reasons, we
grant the petition for review.
I.
Shazi is an Iraqi native and citizen born in a neighborhood of Baghdad, Iraq,
on March 20, 1971. Shazi was a member of the National Iraqi Democrats, an
organization that assisted the United States and allied forces in their effort to
overthrow Saddam Hussein in the mid-1990s. Shazi aided the movement by taking
photographs of and collecting information and intel on suspected biological weapon
development sites in Baghdad. As a result of this experience, Shazi allegedly suffers
from post-traumatic stress disorder (PTSD), anxiety, and depression. Subsequently,
the Red Cross and the United States partnered to extract those assisting the American
forces, including Shazi, and transport them ultimately to Guam. On or about October
23, 1996, Shazi was admitted to the United States in Guam as a parolee, and the
former Immigration and Naturalization Service granted his application for asylum
under 8 U.S.C. § 1158(a) on March 7, 1997.
Once in the United States, Shazi worked with a security firm to further assist
American troops by teaching them Arabic and how to “blend in” and avoid danger
in Iraq. His involvement ceased in 2003 when Saddam Hussein was killed. Shazi
developed a criminal history beginning in 2007, when he was convicted of making
terroristic threats and assault in the fifth degree. In 2011, Shazi was convicted of
malicious punishment of a child and felony domestic assault. In response, the
Department of Homeland Security (DHS) commenced removal proceedings against
Shazi in 2012, charging him with removability pursuant to 8 U.S.C.
§ 1227(a)(2)(A)(ii), (iii), and (E)(i). The IJ sustained all the charges of removal
based on the convictions but granted Shazi’s application for withholding of removal.
In 2016, Shazi was convicted of making terroristic threats, in violation of
Minn. Stat. § 609.713, subdiv. 1, and domestic abuse, in violation of Minn. Stat.
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§ 518B.01, subdiv. 14(a). In 2018, DHS moved the immigration court to reopen
Shazi’s removal proceedings for the purpose of terminating his grant of withholding-
of-removal status based on these convictions. The IJ granted the motion to reopen
but continued the request to terminate withholding-of-removal status. Shazi
responded by opposing the termination and, in the alternative, applying for CAT
protection. The IJ held a hearing on the matter and ultimately terminated Shazi’s
withholding-of-removal status and denied his application for protection under CAT.
The IJ found that Shazi lacked credibility because his testimony contained numerous
inconsistencies. The IJ found that Shazi’s second conviction for making terroristic
threats, in 2016, constituted a “particularly serious crime” under 8 U.S.C.
§ 1231(b)(3)(B)(ii), which barred withholding of removal. In doing so, the IJ
rejected Shazi’s argument that his mental health conditions mitigated the seriousness
of the crime. The IJ reasoned that an individual’s struggle with mental health is not
to be considered in a particularly serious crime determination under Matter of
G-G-S-, 26 I. & N. Dec. 339, 345 (BIA 2014). Finally, the IJ denied Shazi’s
application for deferral of removal under CAT because Shazi did not produce
enough evidence to show a specific danger to himself, but instead showed only
general countrywide violence that affects the Iraqi population as a whole.
Shazi appealed the IJ’s decision to the BIA, arguing that the IJ’s particularly
serious crime finding was based on an inadequate consideration of Shazi’s mental
health condition at the time the offense was committed. Shazi contended that Matter
of G-G-S- was an impermissible bar to mental health evidence based on the Ninth
Circuit’s decision in Gomez-Sanchez v. Sessions, 892 F.3d 985 (9th Cir. 2018). The
BIA determined that an individual’s mental health does not diminish the seriousness
of the relevant conviction. The BIA explicitly rejected Shazi’s reliance on Gomez-
Sanchez because it arose out of the Ninth Circuit and was not controlling in Shazi’s
case. Shazi contemporaneously filed a motion to remand his claim for protection
under CAT based on new evidence. The BIA found that Shazi failed to meet his
burden of proof to be granted protection under CAT. While Shazi presented new
evidence, the BIA disregarded it because Shazi did not establish why it was
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previously unavailable at the time of the IJ’s decision. Thus, the BIA affirmed the
IJ’s decision on both grounds. This appeal followed.
II.
Shazi petitions this Court for review, arguing the BIA erroneously terminated
his withholding of removal and denied him protection under CAT. Specifically,
Shazi argues that the IJ and the BIA erred in (1) concluding that Shazi’s conviction
for making terroristic threats was a particularly serious crime, barring withholding
of removal; (2) finding Shazi’s testimony not credible; (3) concluding that Shazi
failed to support his petition for deferral of removal under CAT; and (4) concluding
that his newly presented evidence did not warrant remand. “‘We generally review
the BIA’s decision as the final agency action,’ but where ‘the BIA essentially
adopted the IJ’s opinion while adding in some of its own reasoning, we review both
decisions.’” Sharif v. Barr, 965 F.3d 612, 618 (8th Cir. 2020) (citation omitted).
A.
Shazi first argues that the IJ and BIA erred in concluding that his conviction
for terroristic threats constituted a particularly serious crime, barring withholding of
removal. A noncitizen has two vehicles by which he can obtain withholding of
removal—8 U.S.C. § 1231 (statutory withholding of removal) and CAT—and the
particularly serious crime bar prohibits both.2 See 8 U.S.C. § 1231(b)(3)(B)(ii); 8
2
Prior to Nasrallah v. Barr, 140 S. Ct. 1683 (2020), the distinction between
statutory withholding of removal and CAT withholding of removal was largely
insignificant when reviewing the claim of a noncitizen who was removable as a
“criminal alien” and subject to the particularly serious crime bar. We previously
determined that we were precluded from reviewing the BIA’s factual findings as to
both forms of withholding of removal in such circumstances. See, e.g., Lovan v.
Holder, 574 F.3d 990, 998 (8th Cir. 2009). However, Nasrallah held that CAT orders
are not final orders of removal subject to our jurisdictional limitation for “criminal
aliens” as described in 8 U.S.C. § 1252(a)(2)(C). See Nasrallah, 140 S. Ct. at 1694.
Therefore, we are able to review the factual findings as they relate to a noncitizen’s
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C.F.R. § 1208.16(d). Insofar as Shazi’s arguments relate to his claim for statutory
withholding of removal, “[o]ur jurisdiction is limited to constitutional claims and
questions of law” because Shazi “is removable as a ‘criminal alien.’” Constanza v.
Holder, 647 F.3d 749, 753 (8th Cir. 2011) (per curiam); 8 U.S.C. § 1252(a)(2)(C)-
(D). Whether the BIA applied the correct legal framework in its particularly serious
crime determination is a question of law and reviewable even under our limited
jurisdiction. 3 See Tian v. Holder, 576 F.3d 890, 894-95 (8th Cir. 2009). “We review
questions of law de novo but accord substantial deference to the BIA’s interpretation
of immigration statutes and regulations.” Marambo v. Barr, 932 F.3d 650, 654 (8th
Cir. 2019) (citation omitted). Specifically, we apply Chevron’s 4 two-step analysis
to the BIA’s construction of the Immigration and Nationality Act. See Velasquez v.
Barr, 979 F.3d 572, 576 (8th Cir. 2020).
“[T]he Attorney General may not remove an alien to a country if the Attorney
General decides that the alien’s life or freedom would be threatened in that country
because of the alien’s race, religion, nationality, membership in a particular social
group, or political opinion.” 8 U.S.C. § 1231(b)(3)(A). 5 However, this mandatory
CAT claim, which includes the factual findings underpinning the BIA’s particularly
serious crime determination.
3
To the extent that such arguments relate to Shazi’s claim for withholding of
removal under CAT, we review the BIA’s factual findings under the substantial
evidence standard; however, such review is unnecessary here because Shazi’s
arguments are purely legal in nature. Nasrallah, 140 S. Ct. at 1692 (citation omitted).
4
Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984).
5
To obtain withholding of removal under CAT, the noncitizen must “establish
that it is more likely than not that he . . . would be tortured if removed to the proposed
country of removal.” 8 C.F.R. § 1208.16(c)(2). However, the standard of the
particularly serious crime bar is the same under both forms of withholding of
removal. See 8 C.F.R. § 1208.16(d) (requiring mandatory denial of withholding of
removal under CAT if the noncitizen falls within the particularly serious crime bar
as codified at 8 U.S.C. § 1231(b)(3)(B)).
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grant of withholding of removal does not apply “if the Attorney General decides that
. . . the alien, having been convicted by a final judgment of a particularly serious
crime is a danger to the community of the United States.” Id. § 1231(b)(3)(B)(ii);
see also 8 C.F.R. § 1208.16(d). The phrase “particularly serious crime” is not
defined, but “an aggravated felony (or felonies) for which the alien has been
sentenced to an aggregate term of imprisonment of at least 5 years” is a particularly
serious crime per se. 8 U.S.C. § 1231(b)(3)(B). Otherwise, the determination is
made on a case-by-case basis and includes “a variety of factors and . . . consideration
of the individual facts and circumstances [of the conviction].” Marambo, 932 F.3d
at 655 (alteration in original) (quoting Tian, 576 F.3d at 897). “These factors include
‘the nature of the conviction, the circumstances and underlying facts of the
conviction, the type of sentence imposed, and most importantly whether the type and
circumstances of the crime indicate that the alien will be a danger to the
community.’” Id. (quoting Tian, 576 F.3d at 897). Although Shazi’s conviction is
not a particularly serious crime per se, the IJ and the BIA determined that his
conviction fit the category based on the aforementioned factors.
Shazi first contends that the IJ and the BIA failed to consider whether Shazi
would be a danger to the community and argues that the facts and circumstances of
his conviction do not demonstrate that he is a future threat. However, we have
recognized that the BIA’s construction determining that the “proper focus . . . is on
the nature of the crime and not the likelihood of future serious misconduct” is
reasonable, and we have afforded such construction deference. Tian, 576 F.3d at
897 (quoting In re N-A-M-, 24 I. & N. Dec. 336, 342 (BIA 2007)). As such, “once
an alien is found to have committed a particularly serious crime, we no longer engage
in a separate determination to address whether the alien is a danger to the
community.” Id. (quoting In re N-A-M-, 24 I. & N. Dec. at 342). Therefore, the IJ
and the BIA did not err in failing to consider Shazi’s likelihood of future misconduct.
Shazi next contends that the IJ and the BIA impermissibly refused to consider
his mental illness as a factor in their particularly serious crime determinations. The
IJ determined, and the BIA affirmed, that Shazi’s alleged mental illnesses—PTSD,
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anxiety, and depression—did not mitigate the seriousness of Shazi’s conviction as a
matter of law under Matter of G-G-S-. Shazi points out, however, that the Ninth
Circuit Court of Appeals reversed Matter of G-G-S- because it was likely
antagonistic to Congress’s intent and was inconsistent with In re N-A-M-. See
generally Gomez-Sanchez, 892 F.3d 985. Having not previously considered this
interpretation, we review the BIA’s construction under Chevron’s two-step analysis.
We must first determine “whether Congress has directly spoken to the precise
question at issue.” Velasquez, 979 F.3d at 576 (quoting Chevron, 467 U.S. at 842).
“If the statute’s meaning is clear, then both the courts and agencies ‘must give effect
to the unambiguously expressed intent of Congress.’” Id. (quoting Chevron, 467
U.S. at 842-43). Here, as we noted above, the statute and accompanying regulations
merely define a category of per se particularly serious crimes but are otherwise silent
as to the definition of “particularly serious crime.” See 8 U.S.C. § 1231(b)(3)(B)(ii);
8 C.F.R. § 1208.16(d). The statute provides no further guidance as to how the
Attorney General should view other convictions outside of this per se category,
stating generally that the Attorney General otherwise has the power to determine that
convictions are particularly serious crimes. See 8 U.S.C. § 1231(b)(3)(B).
At least the Ninth Circuit has found that such silence, coupled with the
presence of a per se category, evidences Congress’s intent that every conviction
outside of that category requires a case-by-case analysis. Gomez-Sanchez, 892 F.3d
at 991-92 (citing Blandino-Medina v. Holder, 712 F.3d 1338, 1345 (9th Cir. 2013)).
While the Ninth Circuit relied in part upon the principle of expressio unius est
exclusio alterius, Blandino-Medina, 712 F.3d at 1345, we believe that implying an
entire administrative framework from the inclusion of only one item stretches the
interpretive canon beyond its limits. See Barnhart v. Peabody Coal Co., 537 U.S.
149, 168 (2003) (“[T]he canon . . . does not apply to every statutory listing or
grouping; it has force only when the items expressed are members of an ‘associated
group or series,’ justifying the inference that items not mentioned were excluded by
deliberate choice, not inadvertence.” (citation omitted)). Our hesitation to join the
Ninth Circuit on this basis is bolstered by the statute’s subsequent unqualified grant
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of permission to the Attorney General to otherwise “determine that . . . an alien has
been convicted of a particularly serious crime.” 8 U.S.C. § 1231(b)(3)(B). Instead,
we understand Congress’s silence on the matter to be just that: silence.
Therefore, because we determine the statute to be ambiguous, we proceed to
Chevron’s second step and determine whether the BIA’s interpretation is “based on
a permissible construction of the statute.” Velasquez, 979 F.3d at 576 (quoting
Chevron, 467 U.S. at 843). We will “only set [the BIA’s construction] aside if it is
‘arbitrary, capricious, or manifestly contrary to the statute.’” Estrada-Rodriguez v.
Lynch, 825 F.3d 397, 403-04 (8th Cir. 2016) (quoting Chevron, 467 U.S. at 844).
The BIA, not the statute, created the traditional case-by-case analysis for those
convictions falling outside of the per se category. In In re N-A-M-, the BIA
addressed the scope of the evidence permissible for a particularly serious crime
determination:
It has been our practice to allow both parties to explain and
introduce evidence as to why a crime is particularly serious or not. We
see no reason to exclude otherwise reliable information from
consideration in an analysis of a particularly serious crime once the
nature of the crime, as measured by its elements, brings it within the
range of a “particularly serious” offense.
24 I. & N. Dec. at 344. In Marambo v. Barr, we recognized the BIA’s position in In
re N-A-M- that “all reliable information may be considered in making a particularly
serious crime determination, including the conviction records and sentencing
information, as well as other information outside the confines of a record of
conviction.” 932 F.3d at 655 (emphases added) (quoting In re N-A-M-, 24 I. & N.
Dec. at 342). In adopting the BIA’s position as the law of the circuit, we found that
the IJ and the BIA did not err in considering facts and circumstances from the
petitioner’s criminal complaint in determining whether he committed a particularly
serious crime. Id. at 655-56. In recognizing “all reliable information may be
considered,” even that which is “outside the confines of the record of conviction,”
we find that the BIA’s categorical ban on evidence concerning mental health issues
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is arbitrary and capricious. See id. at 655; see also Encino Motorcars, LLC v.
Navarro, 136 S. Ct. 2117, 2120 (2016) (“An ‘[u]nexplained inconsistency’ in agency
policy is ‘a reason for holding an interpretation to be an arbitrary and capricious
change from agency practice . . . .’” (alteration in original) (citation omitted)).
The BIA adopted its categorical ban on mental health evidence in Matter of
G-G-S-, 26 I. & N. Dec. 339 (BIA 2014). Relying in part on In re N-A-M-, the BIA
determined that: “[A petitioner’s] mental condition does not relate to the pivotal
issue in a particularly serious crime analysis, which is whether the nature of his
conviction, the sentence imposed, and the circumstances and underlying facts
indicate that he posed a danger to the community.” Id. at 346. While the BIA gave
various reasons for its decision, we join the Ninth Circuit and find the BIA’s
conclusion “to be unreasonable.” See Gomez-Sanchez, 892 F.3d at 996. First, the
BIA based its conclusion in part on the premise that “consideration of an alien’s
mental health as a factor in the criminal act falls within the province of the criminal
courts.” Matter of G-G-S-, 26 I. & N. Dec. at 345. This assumption fails to
recognize that “the mental health evidence the individual wishes to offer in the
immigration court may never have been presented to the criminal court.” Gomez-
Sanchez, 892 F.3d at 994. Furthermore, it neglects the Supreme Court’s recognition
that: “Immigration law can be complex, and it is a legal specialty of its own. Some
members of the bar who represent clients facing criminal charges, in either state or
federal court or both, may not be well versed in it.” Padilla v. Kentucky, 559 U.S.
356, 369 (2010).
Second, the BIA refrained from such consideration because it would require
an IJ to “go behind the decisions of the criminal judge and reassess any ruling on
criminal culpability.” Matter of G-G-S-, 26 I. & N. Dec. at 345. “Whether and to
what extent an individual’s mental illness or disorder is relevant to his or her
commission of an offense and conviction for the crime are issues best resolved in
criminal proceedings.” Id. But whether and to what extent an individual’s mental
illness or disorder explains why a crime is particularly serious or not for immigration
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purposes is a distinct determination to be resolved by the IJ and the BIA. See
Gomez-Sanchez, 892 F.3d at 993-94.
We recognize that the focus of a particularly serious crime analysis is on the
nature of the crime and does not involve unrelated factors or offender characteristics
that do not bear upon “the gravity of a crime.” In re N-A-M-, 24 I. & N. Dec. at 343.
However, we fail to understand how a petitioner’s mental health can never be
relevant to “the circumstances and underlying facts” of the conviction, especially, as
the BIA noted, in light “of the impact mental illness can have on an individual’s
behavior.” Matter of G-G-S-, 26 I. & N. Dec. at 347. As such, we find that the
BIA’s categorical bar of consideration of mental health evidence, as contemplated
in Matter of G-G-S-, is an arbitrary and capricious construction of 8 U.S.C. § 1231,
and we reject such a categorical evidentiary bar in the particularly serious crime
analysis. As such, we reaffirm our position in Marambo that “all reliable
information” pertaining to the nature of the crime, including evidence of mental
health conditions, may be considered in a particularly serious crime analysis. 932
F.3d at 655.
B.
Shazi next argues that the IJ and the BIA erred in finding Shazi’s testimony
not credible. We lack the jurisdiction to review such claims as they relate to the
termination of Shazi’s statutory withholding of removal. See Constanza, 647 F.3d
at 753; Garcia v. Barr, 954 F.3d 1095, 1097 (8th Cir. 2020) (noting that credibility
determinations are determinations of fact). To the extent that such adverse
credibility determination impacted Shazi’s claim for relief under CAT, we review
the BIA’s factual findings for substantial evidence: “[t]he agency’s ‘findings of fact
are conclusive unless any reasonable adjudicator would be compelled to conclude to
the contrary.’” Nasrallah, 140 S. Ct. at 1692 (citation omitted); see Shire v. Barr,
967 F.3d 722, 726 (8th Cir. 2020).
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When making a credibility determination as part of a proceeding, the IJ:
may base a credibility determination on the demeanor, candor, or
responsiveness of the applicant or witness, the inherent plausibility of
the applicant’s or witness’s account, the consistency between the
applicant’s or witness’s written and oral statements (whenever made
and whether or not under oath, and considering the circumstances under
which the statements were made), the internal consistency of each such
statement, the consistency of such statements with other evidence of
record (including the reports of the Department of State on country
conditions), and any inaccuracies or falsehoods in such statements,
without regard to whether an inconsistency, inaccuracy, or falsehood
goes to the heart of the applicant’s claim, or any other relevant factor.
In re J-Y-C-, 24 I. & N. Dec. 260, 262 (BIA 2007) (emphasis omitted) (quoting 8
U.S.C. § 1158(b)(1)(B)(iii)). “It is well settled that an [IJ] is in the best position to
make credibility findings because he or she sees the witnesses as the testimony is
given.” R.K.N. v. Holder, 701 F.3d 535, 538 (8th Cir. 2012) (citation omitted).
Moreover, “[w]hen the BIA has adopted and affirmed the IJ’s adverse credibility
determination, we defer to those findings if ‘supported by specific, cogent reasons
for disbelief.’” Id. (citation omitted).
Here, the BIA implicitly affirmed the IJ’s adverse credibility determination
by referring to the IJ’s factual findings which were contrary to Shazi’s testimony.
The IJ supported these factual findings with specific reasons throughout the opinion.
A majority of the inconsistencies the IJ identified related to Shazi’s testimony that it
was “impossible” for him to have physically harmed the mother of his children. The
IJ referenced the multiple police reports of domestic abuse in the record and found
such testimony “completely false.” The IJ then recited the numerous times that
Shazi contradicted himself between direct examination and the court’s examination.
Finally, the IJ noted inconsistencies in Shazi’s recollection of years and his mistaken
assumption of his status as a U.S. citizen, but gave such discrepancies little weight.
The IJ ultimately made an adverse credibility finding. Because the IJ supported her
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determination with specific, cogent reasons for her disbelief, including citations to
various materials in the record, we find no error in the IJ’s or the BIA’s conclusions.
C.
Shazi next contends that the BIA erred in concluding that Shazi had not
established that he was more likely than not to be tortured upon his return to Iraq.
We review the BIA’s factual determinations for substantial evidence. See Shire, 967
F.3d at 726. To receive protection under CAT, the applicant must show “that it is
more likely than not that he or she would be tortured if removed to the proposed
country.” 8 C.F.R. § 1208.16(c)(2).6 Torture includes:
any act by which severe pain or suffering, whether physical or mental,
is intentionally inflicted on a person for such purposes as obtaining
from him or her or a third person information or a confession, punishing
him or her for an act he or she or a third person has committed or is
suspected of having committed, or intimidating or coercing him or her
or a third person, or for any reason based on discrimination of any kind,
when such pain or suffering is inflicted by or at the instigation of or
with the consent or acquiescence of a public official or other person
acting in an official capacity.
6
CAT provides two means of relief: withholding of removal, as discussed
supra Section I.A, and deferral of removal. Under either form of relief, a noncitizen
must show that it is more likely than not he will be tortured upon his return to the
proposed country. See 8 C.F.R. § 1208.16(c); id. § 1208.17(a). When a noncitizen
is barred from CAT withholding of removal, e.g., because he committed a
particularly serious crime under 8 U.S.C. § 1231(b)(3)(B)(ii), he is still entitled to
deferral of removal if he has met his burden under CAT. See 8 C.F.R.
§ 1208.16(c)(4). The only notable difference between the two forms of relief is the
method by which such relief is terminated. While DHS must generally move to
reopen the case in compliance with id. §§ 1003.2, 1003.24 to terminate CAT
withholding of removal, see id. § 1208.23(f); DHS need only comply with the lower
standard established by id. § 1208.17(d) to terminate deferral of removal.
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Id. § 1208.18(a)(1). The IJ must consider “all evidence relevant to the possibility of
future torture,” including: “Evidence of past torture upon the applicant”; “Evidence
that the applicant could relocate to a part of the country of removal where he or she
is not likely to be tortured”; “Evidence of gross, flagrant or mass violations of human
rights within the country of removal, where applicable”; and “Other relevant
information regarding conditions in the country of removal.” Id. § 1208.16(c)(3).
Shazi argues that he presented voluminous evidence to show that he would
more likely than not be tortured by the Iraqi government upon his return to Iraq. He
asserts that the government and Islamic extremists would apprehend and torture him
on the basis of his history with the United States military. The IJ found the record
devoid of any support for Shazi’s position. While the record contained some
evidence of torture of military assistants at the hands of the Iraqi government and
Islamic extremists, the IJ pointed out that such instances involved Iraqi citizens
affiliated with the United States military only after 2003. The IJ found that the
record did not contain evidence that those involved with operations in the mid-
1990s, such as Shazi, were likely to experience the same treatment. The IJ then
recognized that ISIS may carry out such attacks but that the organization is a private
entity actively opposed, not acquiesced to, by the Iraqi government. The BIA
affirmed the IJ, and we refuse to disturb a factual finding when the record would not
compel any reasonable adjudicator to conclude to the contrary. See Nasrallah, 140
S. Ct. at 1692.
D.
Finally, Shazi argues that the new evidence he presented to the BIA warranted
remand to the IJ for further determination because the evidence supported a new
theory that Shazi would more likely than not be tortured as a result of lacking valid
Iraqi documents upon his return. We review the BIA’s denial of a motion to remand
for abuse of discretion and will only find such when the BIA “gives no rational
explanation for its decision, departs from its established policies without
explanation, relies on impermissible factors or legal error, or ignores or distorts the
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record evidence.” Sharif, 965 F.3d at 622 (citation omitted). “The BIA will not
remand to the IJ to consider additional evidence proffered on appeal if the evidence
‘was available and could have been presented at an earlier hearing.’” Berte v.
Ashcroft, 396 F.3d 993, 997 (8th Cir. 2005) (quoting In re Adolfo Jose Grijalva, 21
I. & N. Dec. 27, 36 (BIA 1995)). When “the evidence was previously unavailable,
the BIA will remand only if the evidence is ‘of such a nature that the [BIA] is
satisfied that if proceedings before the [IJ] were reopened, . . . the new evidence
would likely change the result in the case.’” Id. (second alteration in original)
(quoting Matter of Coelho, 20 I. & N. Dec. 464, 473 (BIA 1992)).
Here, Shazi submitted multiple expert affidavits supporting his new theory
regarding the torture of Iraqi natives who lack identification documents. While these
affidavits were dated after the IJ’s determination, the BIA determined that Shazi
failed to explain how Iraq’s country conditions had changed since the IJ’s decision
and why this evidence was previously unavailable. The BIA further found that all
but one of the additional reports predated the IJ’s decision and that the one viable
report was unlikely to change the result of the IJ’s determination. In making these
conclusions, the BIA did not depart from its established policies and, therefore, did
not abuse its discretion. See Sharif, 965 F.3d at 619.
III.
For the foregoing reasons, we grant the petition for review for further
consideration of Shazi’s mental health evidence in determining whether he is barred
from withholding of removal based on a particularly serious crime; otherwise we
deny the petition. Accordingly, we vacate and remand to the BIA for further
proceedings consistent with this decision.
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