Alen Hanna Rofa v. Merrick B. Garland ( 2022 )

NOT RECOMMENDED FOR PUBLICATION
File Name: 22a0510n.06
Case No. 22-3330
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT FILED
Dec 08, 2022
DEBORAH S. HUNT, Clerk
)
ALEN HANNA ROFA,
)
Petitioner, ) ON PETITION FOR REVIEW
) FROM THE UNITED STATES
v. )
BOARD OF IMMIGRATION
)
) APPEALS
MERRICK B. GARLAND, Attorney General, )
Respondent. ) OPINION
)
Before: LARSEN, DAVIS, and MATHIS, Circuit Judges.
MATHIS, Circuit Judge. Alen Hanna Rofa petitions this Court to review a final order of
the Board of Immigration Appeals (“BIA”) adopting and affirming the decision of an Immigration
Judge (“IJ”) denying him deferral of removal under the Convention Against Torture (“CAT”). For
the reasons that follow, we DENY Rofa’s petition for review.
I.
Rofa is a native and citizen of Iraq who was admitted to the United States as a lawful
permanent resident in 1999. Rofa came to the United States at the age of ten, but because his
parents could not take care of him and his brothers, they were removed from their parents’ home
in 2001 and lived in foster care. Rofa lived with about ten different foster families over the course
of three years. At the age of fifteen, Rofa was convicted of second-degree murder in violation of
Michigan Penal Code § 750.317 following his participation in a deadly robbery. He was sentenced
Case No. 22-3330, Rofa v. Garland
to between seventeen and thirty years in prison. After serving sixteen years of his sentence, on
June 15, 2021, Rofa was served with a Notice to Appear (“NTA”). The NTA charged him as
removable under 8 U.S.C. § 1127(a)(2)(A)(iii) as a noncitizen convicted of an aggravated felony
as defined in 8 U.S.C. § 1101(a)(43)(A) (relating to murder) and 8 U.S.C. § 1101(a)(43)(F)
(relating to a violent crime for which the term of imprisonment is one year or more).
Rofa requested deferral from removal under CAT, claiming that he feared he would be
tortured and killed if he returned to Iraq. According to Rofa, he identifies as Roman Catholic,
specifically as a Chaldean Christian, which would make him vulnerable to torture in Iraq. His faith
is shown through his tattoos, which include “numerous carpenter tools covering throughout [his]
body with Jesus’ portrait on the back of [his] arm,” as well as a Chaldean symbol to signify that
he is a Chaldean Christian. (A.R. 289). Rofa does not speak Arabic, which he claims would raise
suspicion and potentially subject him to torture. Additionally, he has no Iraqi identification
documents and does not know anyone in Iraq who would vouch for him because all his family and
friends are in the United States.
In support of his claims, Rofa submitted the declaration of his expert witness, Dr. Tareq A.
Ramadan (“Dr. Ramadan”), as well as sixteen articles discussing country conditions in Iraq, the
U.S. State Department’s Iraq 2020 Human Rights Report, the Iraq 2020 Religious Freedom Report,
and the Iraq 2021 Religious Freedom Report. In opposition, the Department of Homeland Security
(“DHS”) submitted a declaration of its expert witness, Dr. Michael Rubin (“Dr. Rubin”), as well
as fifteen articles discussing country conditions in Iraq.
On July 13, 2021, Rofa appeared before the IJ and, through counsel, admitted the factual
allegations in the NTA and conceded removability. An individual hearing was later held on
September 17, 2021, during which the IJ heard testimony from Dr. Ramadan and Rofa’s brother.
-2-
Case No. 22-3330, Rofa v. Garland
Dr. Rubin did not testify on DHS’s behalf. Rofa’s brother confirmed Rofa’s account of their time
in foster care and described Rofa as a Christian and expressed his fear that Rofa would be harmed
if removed to Iraq. According to Rofa, he should not be returned to Iraq because he was at risk of
torture on account of his Christianity, “inability to speak Arabic, a lack of valid Iraqi identification
documents or any family in Iraq to otherwise support or vouch for him, a felonious criminal record,
and Christian and English-language tattoos.” (Id. at 157). Rofa claimed that his “path to torture”
could conceivably begin at the Baghdad International Airport because he did not have valid Iraqi
identification. (Id. at 159). Rofa further argued that once in Iraq, he would face checkpoints
manned by the Popular Mobilization Force (“PMF”), where he would be subjected to increased
questioning and potential detention.
The declarations of both Drs. Ramadan and Rubin were admitted into evidence, and Dr.
Ramadan was deemed credible and qualified to testify on Rofa’s behalf. Speaking to the general
conditions in Iraq, Dr. Ramadan testified that the Islamic State (“ISIS”) continued to engage in
attacks, even though it was no longer in control. Dr. Ramadan also testified that the Iranian
Revolutionary Guards Corps was active in Iraq, and the state-sanctioned, Iranian-allied PMF was
trying to make Iraq a “fanatical” Islamist country. (Id. at 221–22, 224).
Iraq’s Christian population had been declining since 2003, and even though Christians had
been encouraged to return to Iraq, the PMF used checkpoints to harass, threaten, and assault
Christians, sometimes preventing them from returning home. At times, the PMF stole from and
boycotted Christian businesses. In his declaration, Dr. Ramadan described three individuals who
returned to Iraq from western countries and who allegedly suffered assaults and torture. Only one
of the three was allegedly tortured by the PMF, and Dr. Ramadan testified that it was difficult to
say how often such torture of Iraqis returning from western countries occurred. Further, Dr.
-3-
Case No. 22-3330, Rofa v. Garland
Ramadan testified that the 2020 killings of Qassim Suleimani and PMF engineer Mahdi al-
Muhandis renewed anti-American sentiment in Iraq, leading to increased attacks against U.S.
convoys, troops, bases, and personnel. The rise in attacks also created fear in Iraqi Christians, who
worried they would be perceived as sympathetic to the West.
Regarding Rofa specifically, Dr. Ramadan testified that it would be hard for Rofa to
conceal his Christian identity considering his Christian name, tattoos, and inability to speak
Arabic, Iraq’s official language. Dr. Ramadan also opined that Rofa was vulnerable because he
was not familiar with Iraq, had a criminal record, and lacked any form of Iraqi identification, which
could lead to him being considered a security concern at a PMF checkpoint or, worse, detention,
interrogation, and imprisonment. Dr. Ramadan cited two instances where individuals returning to
Iraq faced difficulties because they lacked identification. Although he could not say with certainty
how frequently such interactions led to imprisonment and torture, Dr. Ramadan testified that not
everyone who goes through a PMF checkpoint is detained, put in prison, or harmed.
The IJ ultimately rejected Rofa’s claim for relief under CAT, finding that he failed to
establish that he would more likely than not be tortured if returned to Iraq. Although the IJ found
Dr. Ramadan’s testimony and declaration credible and consistent with the country reports, they
were insufficient to show a particularized threat of torture. The IJ found that although evidence in
the record identified incidents of torture carried out by the PMF and Iraqi Security Forces (“ISF”),
the evidence also showed that such conduct was generally aimed toward Sunni Arabs (suspected
ISIS affiliates), human rights activists, intellectuals, and political protesters. Because Rofa did not
fall into any of these categories, the IJ determined that Rofa did not show that he would be at
particular risk for torture even if he was detained, particularly since the PMF was targeting “official
or private U.S. interest[s].” (Id. at 158, 160).
-4-
Case No. 22-3330, Rofa v. Garland
The IJ also determined that there was no evidence that Rofa would face harm when entering
Iraq, nor was there any evidence that he would be subjected to physical harm or torture on account
of his lack of documents. Additionally, the IJ did not agree that Rofa was at risk based on his
criminal record because, under Iraqi criminal law, Rofa could not be prosecuted in Iraq since he
had already been convicted and completed his sentence. The IJ also noted that while the PMF and
ISF “commit abuses against Iraqi citizens with relative impunity . . . these harms do not amount to
torture.” (Id. at 158 (citations omitted)). And although there was “evidence of harm that does
amount to torture in the record,” such evidence did not show that Rofa would face a “particularized
threat of torture” if returned to Iraq. (Id.). As such, the IJ denied Rofa’s application for deferral of
removal and ordered him removed to Iraq.
On December 23, 2021, Rofa appealed the IJ’s decision. The BIA, sitting as a single-
member panel, adopted and affirmed the IJ’s decision on appeal. The BIA concluded that contrary
to Rofa’s arguments, the IJ did not fail to provide sufficient analysis or improperly weigh any of
the record evidence. Additionally, the BIA found that the IJ did not clearly err in its finding
regarding the likelihood of future torture. Lastly, the BIA determined that it was not bound by the
unpublished BIA decisions Rofa cited.
II.
Where the BIA “expressly adopts and affirms the IJ’s decision but adds comments of its
own,” we “directly review the decision of the IJ while also considering the additional comments
made by the [BIA].” Yeremin v. Holder, 738 F.3d 708, 714 (6th Cir. 2013) (internal quotation
marks and citation omitted). Factual challenges to the BIA’s denial of an application for CAT
protection are reviewed under the substantial-evidence standard, which is “highly deferential.”
Nasrallah v. Barr, 140 S. Ct. 1683, 1692 (2020). The BIA’s findings stand “unless any reasonable
-5-
Case No. 22-3330, Rofa v. Garland
adjudicator would be compelled to conclude to the contrary.” Id. (citation omitted); Marqus v.
Barr, 968 F.3d 583, 588 (6th Cir. 2020). Questions of law are reviewed de novo. Marqus, 968 F.3d
at 589.
III.
In his petition for review, Rofa asks us to consider whether the BIA, in adopting and
affirming the IJ’s decision: (1) erred in concluding that PMF and ISF abuses do not amount to
torture; (2) erred in concluding that Rofa was not more likely than not to be tortured on return to
Iraq; (3) erred by ignoring country reports regarding the conditions in Iraq and improperly
weighing expert testimony; (4) misapplied the Attorney General’s decision in In re J-F-F-, 23 I.
& N. Dec. 912 (A.G. 2006); and (5) reached a decision inconsistent with similar cases. For the
reasons explained below, we DENY Rofa’s petition.
A.
The BIA and IJ did not err in concluding that PMF and ISF abuses do not per se amount
to torture. This is a factual challenge reviewable under the substantial-evidence standard. See
Nasrallah, 140 S. Ct. at 1692.
CAT bars removal to a country where an individual “is more likely than not to be tortured.”
8 C.F.R. § 1208.17(a). An individual may seek a deferral of removal and will succeed if he
establishes that “it is more likely than not that he [] would be tortured” upon removal. Id. §
1208.16(c)(2). “Torture is an extreme form of cruel and inhuman treatment” that is “specifically
intended to inflict severe physical or mental pain or suffering.” Id. §§ 1208.18(a)(2), (a)(5). To
qualify for protection, such torture must be “inflicted by, or at the instigation of, or with the consent
or acquiescence of, a public official acting in an official capacity or other person acting in an
official capacity.” Id. § 1208.18(a)(1). Additionally, to attain relief, an individual must show more
-6-
Case No. 22-3330, Rofa v. Garland
than just a “consistent pattern of gross, flagrant, or mass violations of human rights in a particular
country.” In re S-V-, 22 I. & N. Dec. 1306, 1313 (BIA 2000), abrogated on other grounds by Amir
v. Gonzales, 467 F.3d 921, 927 (6th Cir. 2006). He must show that he faces a “particularized threat
of torture.” Almuhtaseb v. Gonzales, 453 F.3d 743, 751 (6th Cir. 2006). All evidence that is
relevant to a possibility of future torture must be considered. See 8 C.F.R. § 1208.16(c)(3); In re
J-E-, 23 I. & N. Dec. 291, 303 (BIA 2002); Marqus, 968 F.3d at 589.
Rofa argues that the IJ erred in determining that PMF and ISF abuses do not amount to
torture because such a determination is inconsistent with the evidence in the record. The IJ found
that “both the PMF and the ISF commit abuses against Iraqi citizens with relative impunity,” citing
specific examples such as “verbal harassment, threats and pressure against religious minorities to
observe Islamic customs, extortion, arbitrary arrest, detention and physical assault.” (A.R. 158).
The IJ noted, however, that while such conduct is “reprehensible,” it “do[es] not amount to
torture.” (Id.). The IJ also found that “there is evidence of harm that does amount to torture in the
record,” citing State Department and International Religious Freedom reports noting the PMF and
ISF’s engagement in “forced disappearances, extrajudicial and unlawful killings, and the torture
of detainees and prisoners in the country.” (Id.). However, he distinguished such actions because
they were carried out against specific groups of which Rofa is not a member, namely Sunni Arabs,
human rights activists, intellectuals, and political protesters. (Id.).
The IJ’s finding that certain activities do not rise to the level of torture is not mutually
exclusive with his statement that there is evidence of torture in the record. Not all harms are
considered torture. See 8 C.F.R. § 1208.18(a)(2) (noting that torture “does not include lesser forms
of cruel, inhuman or degrading treatment or punishment that do not amount to torture.”); see also,
e.g., Suleiman v. Garland, 849 F. App’x 587, 589 (6th Cir. 2021) (stating that “extortion and
-7-
Case No. 22-3330, Rofa v. Garland
property seizure do not qualify as torture”). It is conceivable that the evidence includes some
activities that are torture and some activities that are not. As noted above, generalized references
to torture are insufficient to warrant CAT protection. Rofa must prove a particularized threat of
torture to him, and the IJ correctly determined that any threat of torture posed by the PMF and ISF
was aimed at groups to which Rofa does not belong. Indeed, we have held similarly in other cases.
See, e.g., Solaka v. Wilkinson, 844 F. App’x 797, 799 (6th Cir. 2021) (concluding that a Chaldean
Christian did not show a particularized risk of torture when the evidence showed that “only those
connected to ISIS . . . are in danger.”); Almuhtaseb, 453 F.3d at 751 (concluding that general
statements regarding the detainment and torture of Palestinians, “even if taken at face value, do
not show that it is ‘more likely than not’ that Almuhtaseb herself would be subject to such
treatment”). Because we agree that not all of the PMF and ISF’s activities constitute torture, we
do not disturb the IJ’s finding.
B.
The BIA, in adopting and affirming the IJ’s decision, did not err in concluding that Rofa
failed to show he was more likely than not to be tortured on return to Iraq. We also review this
issue under the substantial-evidence standard. See Abdulahad v. Barr, 838 F. App’x 126, 136 (6th
Cir. 2020). Rofa must show a particularized threat of torture. His primary argument for relief is
that he is a Chaldean Christian. Rofa relies heavily on our decision in Yousif v. Lynch, in which
we held that Yousif’s status as a Chaldean Christian “alone entitle[d] him to withholding of
removal, given that there [was] ‘a clear probability’ that he would be subject to future persecution
if returned to contemporary Iraq.” 796 F.3d 622, 628 (6th Cir. 2015). Since our decision in Yousif,
however, we have repeatedly cautioned that this statement “did not ‘establish an entitlement to
withholding of removal for all time’ for Iraqi Chaldean Christians.” Solaka, 844 F. App’x at 799
-8-
Case No. 22-3330, Rofa v. Garland
(quoting Ishac v. Barr, 775 F. App’x 782, 788 (6th Cir. 2019)); Abdulahad, 838 F. App’x at 134;
Marqus, 968 F.3d at 588. And Yousif was based on a showing of a clear probability of persecution,
not torture. Compare Thap v. Mukasey, 544 F.3d 674, 681 (6th Cir. 2008) (defining persecution),
with Almuhtaseb, 453 F.3d at 751 (defining torture). Thus, Rofa’s status as a Chaldean Christian
alone does not entitle him to relief as a matter of law. See Ishac, 775 F. App’x at 788.
The record evidence does not support Rofa’s other arguments. The IJ considered Rofa’s
argument that he may be subjected to torture when arriving at the airport in Iraq or when going
through PMF checkpoints once in Iraq because, aside from his Christian identity, he did not have
valid Iraqi identification documents, could not speak Arabic, had been in the United States for
some time, and had a criminal record, all of which would lead to additional questioning and
potential detainment. The IJ reviewed the evidence and determined that because the PMF does not
have a presence at the airport, there was no risk of harm during the entry process. Additionally,
the IJ acknowledged that although Rofa did not have Iraqi identification documents and would
“likely encounter increased questioning and possible detention while the security forces seek to
verify his identity” at PMF checkpoints, there was no evidence that Rofa would face indefinite
detention or harm amounting to torture. (A.R. 159). Rofa’s expert, Dr. Ramadan, pointed only to
possible “ill-treatment” of undocumented Iraqis, and the IJ concluded that none of the evidence
“show[ed] physical harm, let alone torture of an individual by the PMF or ISF, simply due to a
lack of documents.” (Id.). Information in the record regarding general ill treatment of Iraqi citizens
is insufficient to show a particularized threat of torture to Rofa. See Saleh v. Barr, 795 F. App’x
410, 419 (6th Cir. 2019) (A particularized threat of torture “must be more than general allegations
of a threat against a group that the applicant belongs to.”) We see no reason to disturb the IJ’s
findings.
-9-
Case No. 22-3330, Rofa v. Garland
Rofa claims that he would be tortured based on his Westernization, but the evidence
suggests otherwise. The State Department reports, which “are generally the best gauge of
conditions in foreign countries,” Dieng v. Holder, 698 F.3d 866, 872 (6th Cir. 2012), did not
“provide a single incident of the torture or killing of Americanized or Christian Iraqis, solely on
account of those bases.” (A.R. 159–60).
We, like the IJ, acknowledge that Rofa would “by no means have a comfortable life upon
return to Iraq.” (See id. at 161.). But facing difficulties does not mean that he is more likely than
not to be subjected to torture.
C.
The next issue for review is whether the IJ’s decision, as adopted and affirmed by the BIA,
erred in its consideration of evidence, specifically by ignoring country reports and improperly
weighing expert testimony. This is a question of fact reviewed under the substantial-evidence
standard. See Shafo v. Wilkinson, 844 F. App’x 791, 796 (6th Cir. 2021); Shakkuri v. Barr, 780 F.
App’x 286, 290–91 (6th Cir. 2019).
1. Consideration of Country Reports
Rofa argues that the IJ did not discuss or analyze several documents in its determination
that Rofa had not shown that he was more likely than not to be tortured on return to Iraq, including
reports from the State Department and news articles provided by both Rofa and DHS. Specifically,
the record included the Iraq 2020 Human Rights Report, the Iraq 2020 Religious Freedom Report,
and the Iraq 2021 Religious Freedom Report. According to Rofa, there was “no discussion or
analysis of the 2020 or 2021 Religious Freedom reports and little regarding the 2020 Iraq Human
Rights Report.” Indeed, the IJ is required to consider all evidence that is relevant to the possibility
- 10 -
Case No. 22-3330, Rofa v. Garland
of future torture under In re J-E-, and we have determined that State Department reports are
“generally the best gauge of conditions in foreign countries.” Dieng, 698 F.3d at 872.
The IJ considered the above-mentioned reports.1 Although it did not refer to all the reports
by name, the IJ cited the reports in addressing Rofa’s arguments and took administrative notice of
the Iraq 2020 Religious Freedom Report, a September 2, 2021, State Department Country Report,
and a United Kingdom-issued country report. The BIA correctly determined that the IJ “carefully
considered all of the evidence of record.”
Rofa’s argument that the IJ erred by not explaining “if or why he found the ignored
documentary evidence to be ‘inherently unbelievable’ or ‘incompatible with some other
incontrovertible piece of evidence’” as required by our decision in Shabo v. Barr, 836 F. App’x
370 (6th Cir. 2020) also fails. Shabo involved the BIA’s denial of a motion to reopen removal
proceedings, and “[i]n adjudicating a motion to reopen, the BIA ‘must accept as true reasonably
specific facts proffered by an alien in support of a motion to reopen unless it finds those facts to
be inherently unbelievable.’” Id. at 373 (quoting Trujillo Diaz v. Sessions, 880 F.3d 244, 252 (6th
Cir. 2018)). The same standard that applies on a motion to reopen does not apply here—all that is
required is that the IJ consider all evidence relevant to the possibility of future torture. That is what
the IJ did here.
2. Weighing of Expert Testimony and Declarations
The BIA determined that the IJ did not err in its weighing of the testimony and declarations
of expert witnesses, Drs. Ramadan and Rubin. The BIA’s finding is “conclusive unless any
reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B);
1
Because the IJ considered the State Department reports, Rofa’s claim that this case should be remanded pursuant to
Dieng fails.
- 11 -
Case No. 22-3330, Rofa v. Garland
Nasrallah, 140 S. Ct. at 1692; Shafo, 844 F. App’x at 796. It is not within our province to reweigh
evidence, and “[w]hen the evidence could reasonably point in either direction, we must defer to
the agency’s choice.” Shafo, 844 F. App’x at 796 (citing Al-Koorwi v. Barr, 837 F. App’x 323,
327–28 (6th Cir. 2020)); see also Marqus, 968 F.3d at 589 (stating that where the applicant asks
the Court to reweigh the evidence and “the Government has introduced its own credible body of
evidence to the contrary, [the Court] defer[s] to the IJ’s factual findings”).
On appeal to the BIA and before us, Rofa claims that the IJ improperly weighed the opinion
of his expert witness, Dr. Ramadan, by relying heavily on the “stale” declaration of DHS’s expert,
Dr. Rubin, which was provided more than seventeen months prior to Rofa’s individual hearing.
According to Rofa, “the IJ did not give Dr. Ramadan’s expert declaration and credible expert
testimony the weight it deserved under BIA precedent including In re M-A-M-Z-, 28 I. & N. Dec.
173 (BIA 2020).”
As the BIA pointed out, the record does not support Rofa’s arguments. First, although Rofa
did not object to DHS’s evidence (Dr. Rubin’s declaration), the IJ acknowledged that the
declaration was seventeen months old and stated that he would consider this fact in weighing the
evidence. Second, the IJ appropriately considered Dr. Ramadan’s testimony and declaration, which
he cited throughout the decision, under In re M-A-M-Z-. See In re M-A-M-Z-, 28 I. & N. Dec. at
177 (“Expert witness testimony is evidence and so is treated the same as all evidence in
immigration proceedings, where the Immigration Judge is the trier of fact and weighs the evidence
in accordance with that role.”). The IJ ultimately determined that although Dr. Ramadan’s
testimony and written declaration were “reliable and largely consistent with the United States and
United Kingdom reports in the record,” they were insufficient to meet Rofa’s burden because, even
though there was evidence of torture in the record, Rofa could not show that he would be at
- 12 -
Case No. 22-3330, Rofa v. Garland
particular risk for torture. (A.R. 157–58). Indeed, “even where, as here, an Immigration Judge
finds an expert to be a credible witness, it does not follow that the Immigration Judge must accept
all the testimony and opinions provided as facts.” In re M-A-M-Z-, 28 I. & N. Dec. at 177. DHS
provided “its own credible body of evidence,” which supported the IJ’s findings that Rofa was not
within the groups primarily targeted by the PMF (e.g., ISIS), and that the cited abuses suffered by
Iraqi citizens generally did not constitute torture. See, e.g., Abdulahad, 838 F. App’x at 136 (citing
Marqus, 968 F.3d at 589) (denying petition for review where the government provided “its own
credible body of evidence” to support the IJ’s findings). Thus, substantial evidence supports the
IJ’s factual findings, as well as the BIA’s conclusion that the IJ did not improperly weigh or
consider the record evidence.
D.
The IJ’s decision, as adopted and affirmed by the BIA, did not misapply In re J-F-F-.
“Whether the BIA and the IJ applied the correct legal standard . . . is a question of law that we
review de novo.” Marqus, 968 F.3d at 589. Under In re J-F-F-, an applicant for relief under CAT
must show that each step in a hypothetical chain of events is “more likely than not to happen.” In
re J-F-F-, 23 I. & N. Dec. at 917. “It is the likelihood of all necessary events coming together that
must more likely than not lead to torture, and a chain of events cannot be more likely than its least
likely link.” Id. at 918 n.4.
Rofa argues that he has established the following chain of events, which would come
together to result in likely torture:
(1) Mr. Rofa’s particular individual characteristics including his Christian
name, his prominent tattoos, his lack of ability to speak or read Arabic, and
his identification as an American deportee with a serious felony conviction
for murder will more likely than not make him immediately suspicious upon
arrival at an Iraqi port of entry or airport; (2) the heightened suspicion will
more likely than not lead to further questioning by authorities regarding his
- 13 -
Case No. 22-3330, Rofa v. Garland
identity; (3) Rofa’s lack of Iraqi identity documents or local family
connections will make detention more likely; (4) as stated in the 2020 Iraq
Country Report, the PMF and ISF have engaged in torture of detainees and
prisoners in the country.
Rofa points to the IJ’s statement that “there are no reports in the record to show physical
harm, let alone torture of an individual by the PMF or ISF, simply due to a lack of documents” as
evidence that it misapplied the test. DHS argues that even if the IJ cited In re J-F-F- for the
proposition that each event in the hypothetical chain of events leading to torture must be more
likely than not to occur, the IJ rendered its decision based on a separate finding that Rofa failed to
show a particularized threat of torture. As such, DHS cites Marqus for the proposition that remand
is unnecessary because the IJ’s decision to deny relief did not turn on an analysis of a hypothetical
chain of events but rather on a finding that the applicant could not show a particularized threat of
torture.
Although the IJ indicated several times that Rofa’s claim failed because he did not show a
particularized threat of torture, the IJ also appears to have considered each of the events in Rofa’s
chain. After finding that Rofa failed to show that each event in the chain was more likely than not
to happen, the IJ stated that Rofa did not carry his burden of showing he would more likely than
not be tortured by or with the acquiescence of the Iraqi government. The IJ agreed that some of
Rofa’s individual characteristics may make him suspicious and subject him to questioning by
authorities (events 1 and 2), but Rofa did not prove “that it is more likely than not that he will be
detained indefinitely” due to not having identification documents (event 3) so as to make torture
(event 4) more likely than not to occur. (A.R. at 159). The BIA determined that this was a
permissive view of the evidence.
Rofa claims that Dr. Ramadan’s testimony and declaration show that such detention was
likely, but Dr. Ramadan only posits that individuals without Iraqi identification documents are
- 14 -
Case No. 22-3330, Rofa v. Garland
“vulnerable to arbitrary detention and ill-treatment” and that they may “be detained if they are
stopped at a checkpoint,” putting them “at risk of detention and torture.” (Id. at 916). Although Dr.
Ramadan provides examples of individuals who allegedly were “prevented from freely traveling
within Iraq” based on their lack of identification documents, Dr. Ramadan does not indicate that
any of these individuals were necessarily detained on account of their lack of identification alone.
(Id. at 916–17). Without more, Rofa cannot show that he would more likely than not be detained
due to his lack of identification documents and, without such a showing, he cannot prove that he
would more likely than not be tortured if removed to Iraq. See Shakkuri v. Barr, 780 F. App’x 286,
293 (6th Cir. 2019) (holding that when the petitioner “alleged that he would be detained at the
airport, would be transported to a detention facility, and then would be tortured for one of the many
proffered reasons” in interdependent form, there was no error in finding that because one of the
steps was not more likely than not to occur, torture was not more likely than not to occur).
E.
Rofa argues that the IJ’s decision, as adopted and affirmed by the BIA, is inconsistent with
similar cases. At the outset, we note that unpublished BIA orders are not precedential. See 8 C.F.R.
§ 1003.1(g)(2); Ishac, 775 F. App’x at 793 n.8. In some circumstances, “the BIA’s failure to
explain inconsistent outcomes may raise ‘an inference of arbitrary decisionmaking.’” Al-Koorwi,
837 F. App’x at 332 (quoting Nissan v. Barr, 788 F. App’x 365, 367 (6th Cir. 2019) (per curiam)).
“The BIA will sometimes reach opposite conclusions in cases that have many factual similarities,
but this does not reflect a failure of the agency to follow its own precedent. Rather, the different
outcomes are an expected result of the discretionary weighing required to make individualized
determinations.” Id. (quoting Etienne v. Holder, 659 F.3d 513, 518 (6th Cir. 2011)).
- 15 -
Case No. 22-3330, Rofa v. Garland
We are not persuaded that the BIA acted arbitrarily in denying Rofa relief under CAT, even
though there are unpublished cases with facts similar but not identical to Rofa’s that resulted in
different outcomes. As the BIA noted, “every case must be considered on its own merits based on
the specific evidence submitted in that particular case.” (A.R. 5 (citing In re O. Vazquez, 25 I. &
N. Dec. 817, 822 n.5 (BIA 2012))). Rofa claims the “BIA committed legal error by reaching
inconsistent decisions on essentially identical cases without reasoned explanation.” We disagree.
The BIA considered the cases provided by Rofa and noted that “[a]lthough there are similarities
between the evidence reflected in the decisions the respondent cites and his own proceedings, the
decisions give only a glimpse of the evidence considered in those cases,” making it impossible “to
determine the extent to which the cases are legally and factually similar.” (A.R. 5). Such an
explanation is sufficient to show that the BIA did not ignore its own precedent. Importantly, we
have denied petitions for review in cases with similar facts. See, e.g., Solaka, 844 F. App’x at 799
(finding that petitioner could not show “that a reasonable adjudicator would be compelled to decide
that [he] faces a high likelihood of torture based on his status as a Chaldean Christian, his ties to
the United States, his criminal record, [and] his lack of identity documents.”); Marqus, 968 F.3d
at 588-89 (same).
IV.
For the foregoing reasons, we DENY Rofa’s petition for review.
- 16 -