Azal Mehdi Saleh v. WILLIAM P. BARR, Attorney General

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 19a0613n.06
No. 18-4033
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
AZAL MEHDI SALEH,
Petitioner,
v.
WILLIAM P. BARR, Attorney
General,
Respondent.
ON PETITION FOR REVIEW FROM
THE BOARD OF IMMIGRATION
APPEALS
BEFORE: CLAY, STRANCH, and MURPHY, Circuit Judges.
CLAY, Circuit Judge. Azal Mehdi Saleh petitions this Court to review the Board of
Immigration Appeals’ orders finding that she is deportable due to an aggravated felony conviction
and denying her application for deferral of removal under the Convention Against Torture. See 8
U.S.C. §§ 1101(a)(43)(A), 1227(a)(2)(A)(iii); 8 C.F.R. §§ 1208.17, 1208.18. Petitioner contends
that she did not commit the crime of aggravated felony sexual abuse of a minor, permitting her
deportation under the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(A)(iii), and that the
Board of Immigration Appeals violated her due process rights.
For the reasons set forth below, we DISMISS IN PART and DENY IN PART this petition
for review.

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BACKGROUND
Factual Background
Petitioner is a native and citizen of Iraq, who was admitted to the United States in 2010 as
a refugee under 8 U.S.C. § 1157(c). In 2011, her status was adjusted to that of a lawful permanent
resident.
On April 28, 2016, Petitioner was convicted of one count of Criminal Sexual Conduct in
the Fourth Degree, Victim Between Ages 13-16, in violation of Mich. Comp. Laws
§ 750.520e(1)(a), pursuant to a plea of nolo contendere. Shortly thereafter, Respondent began
removal proceedings against Petitioner pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii), as an alien
convicted of aggravated felony sexual abuse of a minor.
Petitioner’s alleged history in Iraq was traumatic. In her testimony and a declaration before
the Immigration Judge (“IJ”), Petitioner testified to the following facts. As a child growing up in
Iraq, she was seriously physically abused by her parents, and eventually was either abandoned or
removed from her home. When living in either a shelter or a rehabilitation center thereafter, she
met an employee who forced her into prostitution. She was then repeatedly raped and physically
abused. After escaping the employee’s control, Petitioner sought assistance from law enforcement.
She was held in jail by Iraqi authorities, though not harmed. She was subsequently tried in court
for an unidentified offense,1 but was not sentenced. Petitioner then obtained refugee status and
came to the United States in 2010, where she was placed with a foster family in Michigan.
In the United States, Petitioner began attending church, converted from Islam to
Christianity, and was baptized. While living with her foster family, Petitioner was again raped.
1 Evidence in the Board of Immigration Appeals record does not make clear what offense Petitioner
was alleged to have committed. We are therefore unable to confirm if she was tried based on her forced
prostitution.

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She was later forced back into prostitution, and she became pregnant when her trafficker forced
her to have sex with his brother. Petitioner gave birth to her daughter after escaping her trafficker’s
control.
Petitioner later moved in with her case worker, Debbie. While there, Debbie’s
granddaughter accused Petitioner of sexual assault, and Debbie reported her. Though Petitioner
contests the truth of these allegations, she pleaded guilty to Criminal Sexual Conduct in the Fourth
Degree, Victim Between Ages 13-16, the offense that prompted the instant removal proceedings.
See Mich. Comp. Laws § 750.520e(1)(a). Petitioner suggests she did so because her attorney told
her that her offense would be viewed as a misdemeanor and there would be no consequences.
Procedural History
In her removal proceedings, Petitioner argued, inter alia, that her conviction was not
aggravated felony “sexual abuse of a minor” based on which she was removable under 8 U.S.C.
§ 1227(a)(2)(A)(iii) and that she was entitled to protection from removal under the Convention
Against Torture (“CAT”), pursuant to 8 C.F.R. § 1208.17(a). Petitioner contended that she would
be tortured upon removal to Iraq because of her identity as a female, Christian, Westernized, single
mother without family support and with a history of forced prostitution and a criminal record that
identifies her as having engaged in homosexual activity. In support of her claims, Petitioner
presented a plethora of documentary evidence, her own testimony, and the testimony of witness
Rebecca McDonald, the president of Women at Risk, International, an organization in which
Petitioner took part. Petitioner presented Ms. McDonald as an expert witness on human trafficking,
but the IJ permitted McDonald’s testimony only as a lay witness, finding Petitioner had not claimed
she would again be subject to human trafficking and that expert testimony on that point was not
required. On November 22, 2016, the IJ denied Petitioner relief and ordered her removal to Iraq.

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Petitioner then appealed to the Board of Immigration Appeals (“BIA”). On May 8, 2017,
the BIA affirmed the IJ’s finding that Petitioner’s crime was an aggravated felony and remanded
Petitioner’s case to the IJ for additional findings of fact as to the likelihood of Petitioner’s torture
by the Iraqi government, noting that the IJ had addressed only Petitioner’s evidence suggesting
she would be tortured by ISIS. The parties submitted additional documentary evidence on that
issue, and the IJ held an evidentiary hearing at which Ms. McDonald was permitted to testify as
an expert. The IJ again denied relief in an order dated April 3, 2018. The Board affirmed that
decision in an order dated September 27, 2018. Petitioner then filed timely motions to reconsider
and reopen the BIA’s decision, which the BIA denied. Petitioner did not seek this Court’s review
of those denials. In this timely petition for review, Petitioner seeks review of the BIA’s May 8,
2017 and September 27, 2018 orders.
DISCUSSION
I. Jurisdiction
The Immigration and Nationality Act (“INA”) provides that “[a]ny alien who is convicted
of an aggravated felony at any time after admission [to the United States] is deportable.” 8 U.S.C.
§ 1227(a)(2)(A)(iii). It further provides that “no court shall have jurisdiction to review any final
order of removal against an alien who is removable by reason of having committed a criminal
offense covered in section . . . 1227(a)(2)(A)(iii),” except insofar as a petition for review “filed
with an appropriate court of appeals” raises “constitutional claims or questions of law.” 8 U.S.C.
§ 1252(a)(2)(C)–(D). A BIA denial of deferral of removal is a final order of removal. Ventura-
Reyes v. Lynch, 797 F.3d 348, 358 (6th Cir. 2015). Accordingly, this Court has jurisdiction to
review constitutional claims or questions of law raised by Petitioner in her petition for review.
“‘[W]hether the BIA correctly considered, interpreted, and weighed the evidence presented’ is not

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a constitutional issue or question of law.” Shabo v. Sessions, 892 F.3d 237, 239 (6th Cir. 2018)
(quoting Arestov v. Holder, 489 F. App’x 911, 916 (6th Cir. 2012)).
II. Standard of Review
We review questions of law asserted in accordance with 8 U.S.C. § 1252(a)(2)(C)–(D) de
novo. Id. at 239–40. “Where the BIA reviews the immigration judge’s decision and issues a
separate opinion, rather than summarily affirming the immigration judge’s decision, we review the
BIA’s decision as the final agency determination. To the extent that the BIA adopted the
immigration judge’s reasoning, however, we also review the immigration judge’s decision.” Shaya
v. Holder, 586 F.3d 401, 405 (6th Cir. 2009) (citation omitted in original) (quoting Khalili v.
Holder, 557 F.3d 429, 435 (6th Cir. 2009)). Here, the BIA issued two separate opinions reviewing
IJ decisions, the latter of which explicitly adopted the IJ’s decision. (RE-7, Admin. R., at 3–5,
329–34.)
III. Analysis
A. Petitioner’s Aggravated Felony Determination
“[M]atters involving the BIA’s construction of a particular statute” are questions of law
that this Court has jurisdiction to review. Shabo, 892 F.3d at 239 (quoting Arestov, 489 F. App’x
at 916). Petitioner’s claim required the BIA to construe 8 U.S.C. § 1227(a)(2)(A)(iii) and 8 U.S.C.
§ 1101(a)(43)(A), and therefore this Court is not without jurisdiction on that basis.
This Court has nevertheless repeatedly found that 8 U.S.C. § 1252(d)(1) “provides that
federal courts are without jurisdiction to hear an immigration appeal when administrative remedies
have not been exhausted.” E.g., Ramani v. Ashcroft, 378 F.3d 554, 559 (6th Cir. 2004) (citing
Perkovic v. INS, 33 F.3d 615, 619 (6th Cir. 1994)); see also 8 U.S.C. § 1252(d)(1). Although the
concurrence raises the question of whether we should continue to consider the exhaustion

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requirement as jurisdictional, we are bound to do so here. We have explained that there are three
primary reasons for this exhaustion requirement:
(1) to ensure that . . . the agency responsible for construing and applying the
immigration laws and implementing regulations, has had a full opportunity
to consider a petitioner’s claims; (2) to avoid premature interference with
the agency’s processes; and (3) to allow the BIA to compile a record which
is adequate for judicial review.
Bi Xia Qu v. Holder, 618 F.3d 602, 609 (6th Cir. 2010) (alteration in original) (quoting Ramani,
378 F.3d at 559).
Before the IJ and BIA, Petitioner did argue that her crime was not an aggravated felony
that makes her deportable under 8 U.S.C. § 1227(a)(2)(A)(iii). However, she more specifically
argued that her crime was not a categorical match for the aggravated felony of “sexual abuse of a
minor” because the Michigan statute defining her crime was not divisible and included many
different grounds for finding a violation, some of which did not involve sexually abusing a minor.
Petitioner makes a different argument in her opening brief on appeal, contending that her
crime is not categorically included within “sexual abuse of a minor” because Michigan law does
not allow for an affirmative defense of mistake of age, while federal law purportedly does. (Pet’r
Br. at 9–14.) Because of our exhaustion requirement, this Court is without jurisdiction to hear the
appeal of a petitioner who has not advanced an argument before the BIA. See, e.g., Ramani, 378
F.3d at 559 (“Neither Ramani’s notice of appeal to the BIA, nor his BIA appeal brief, advanced
his current argument that the IJ misused certain evidence. . . . By failing to properly present these
claims to the BIA, Ramani failed to exhaust his administrative remedies on these issues.”); Gazeli
v. Session[s], 856 F.3d 1101, 1106–1107 (6th Cir. 2017) (finding this Court “lack[s] jurisdiction
to consider Petitioners’ alternative argument” as to a claim because “Petitioners never asked the
BIA” to consider that argument); Weerasinghe v. Ashcroft, 134 F. App’x 26, 28 (6th Cir. 2005)

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(finding no jurisdiction where the petitioner had presented general challenge on issue, because
more specific current arguments were not presented to the BIA); Nozadze v. Sessions, 740 F. App’x
476, 485 (6th Cir. 2018) (finding no jurisdiction over CAT claim because the petitioner “now
raises a different argument” than before the BIA).
Notably, Petitioner’s argument is heavily grounded in the Supreme Court’s decision in
Esquivel-Quintana v. Sessions, 137 S. Ct. 1562 (2017), which was handed down on May 30, 2017.
This was after the BIA’s May 8, 2017 order dismissing Petitioner’s argument that her crime did
not constitute an aggravated felony, but before the BIA’s final order in Petitioner’s case was
handed down on September 27, 2018. This Court has reached the merits of a petitioner’s claim on
similar facts, finding that petitioners are not required to file a motion to reconsider with the BIA
based on court decisions handed down after the BIA issues a decision on the merits of an issue but
prior to this Court’s review. See Parlak v. Holder, 578 F.3d 457, 463 (6th Cir. 2009). However,
Parlak is distinguishable from the case at bar.
In Parlak, the petitioner argued that the holding of a newly-issued Sixth Circuit decision
changed the level of mens rea the government must show in order for an alien to be deportable
because of fraud or misrepresentation of fact in his applications for admission. Id.; see also 8
U.S.C. § 1182(a)(6)(C)(i). Petitioner in this case does not contend that the holding of Esquivel-
Quintana v. Sessions modified “sexual abuse of a minor” in a manner relevant to this proceeding,
but only that it showed that the Court looks to 18 U.S.C. § 2243 to aid in defining “sexual abuse
of a minor” under the INA. (Pet’r Br. at 10–13.) The argument that 18 U.S.C. § 2243 should inform
a court’s understanding of her crime was readily available prior to Esquivel-Quintana v. Sessions,
as that statute has been in effect for decades and clearly describes a federal offense of “Sexual
abuse of a minor or ward.” 18 U.S.C. § 2243. This Court looked to that statute to inform its

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interpretation of 8 U.S.C. § 1101(a)(43)(A), the provision which identifies “sexual abuse of a
minor” as an aggravated felony under the INA, well before Petitioner presented her case to the IJ
and BIA. See United States v. Rojas-Carillo, 159 F. App’x 630, 634 (6th Cir. 2005). Allowing a
petitioner to assert a new, unexhausted argument on appeal simply because an intervening court
case brought the argument to her attention would undermine the BIA’s authority to construe and
apply our immigration laws. See Bi Xia Qu, 618 F.3d at 609.
Moreover, in Parlak, the BIA’s decision had addressed the issue that the petitioner
disputed: while he contended that he must have made a willful misrepresentation of fact with an
“intent to deceive,” the BIA had affirmed the IJ’s findings that it must “be ‘deliberate and
voluntary,’ but need not include an ‘intent to deceive.’” 578 F.3d at 463. The BIA in the instant
case has not addressed the question of whether “sexual abuse of a minor” requires knowledge of
that minor’s age.
This case presents a quintessential example of why we require petitioners’ claims to be
exhausted. The BIA is entitled to “a full opportunity to consider a petitioner’s claims,” Bi Xia Qu,
618 F.3d at 609 (citation omitted), and has not had that opportunity with respect to Petitioner’s
current argument. Petitioner could have included this argument in her motion to reconsider or
reopen and, if rejected by the BIA, then raised this argument before this Court. She did not do so.
Considering Petitioner’s argument for the first time on appeal would interfere with the BIA’s
processes, see Bi Xia Qu, 618 F.3d at 609, by suggesting that petitioners can circumvent those
processes and raise new arguments in their petition for review before this Court, rather than in any
filing or motion before the BIA. Finally, this Court lacks an adequate record to ground its review,
see id., as the BIA has not clearly addressed whether knowledge of a victim’s age is necessary to

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find “sexual abuse of a minor” under the INA. This Court is without jurisdiction to hear Petitioner’s
instant argument and, accordingly, we do not reach its merits.
Petitioner asserts two additional arguments relevant to this claim in her reply brief. First,
she contends that the statute defining her crime included multiple means of committing the crime,
which extend beyond the categorical definition of “sexual abuse of a minor” under the INA. (Pet’r
Reply Br. at 4–9.) As previously acknowledged, Petitioner did assert this argument before the BIA.
Second, Petitioner contends in her reply brief that the Michigan law under which she was convicted
covers contact not occurring “for sexual arousal, gratification, purpose, or done in a sexual
manner.” (Pet’r Reply Br. at 7–8.) She did not raise this argument before the BIA. “[A]n appellant
abandons all issues not raised and argued in its initial brief on appeal.” United States v. Johnson,
440 F.3d 832, 845–46 (6th Cir. 2006) (alteration in original) (quoting United States v. Still, 102
F.3d 118, 122 n.7 (5th Cir. 1996)). For this reason—and because Petitioner’s argument about non-
sexual contact was also not exhausted—we also do not reach the merits of these arguments.
After considering whether Petitioner’s arguments were appropriately exhausted and
preserved, we are left with no arguments available for review. Accordingly, we dismiss
Petitioner’s claim that her crime was not an aggravated felony.
B. Petitioner’s Burden of Proof
Petitioner argues on appeal that the BIA erroneously applied the burden of proof applicable
when petitioners assert interdependent probabilities of torture under the CAT. Whether the BIA
applied the correct burden of proof in considering Petitioner’s CAT claims is a question of law
that this Court has jurisdiction to review. Shabo, 892 F.3d at 239. Petitioner has both exhausted
this issue before the BIA and properly preserved it. She argued before the BIA that the IJ
improperly applied the burden of proof applicable to an applicant alleging that a chain of events

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would result in her torture. See United States v. Huntington Nat’l Bank, 574 F.3d 329, 332 (6th
Cir. 2009) (holding that an argument is preserved if a litigant (1) states “the issue with sufficient
clarity to give the court and opposing parties notice that it is asserting the issue” and (2) provides
“some minimal level of argumentation in support of it”) (citation omitted). Petitioner objects to
that burden again before this Court. (Pet’r Br. at 18–27.)
An applicant seeking relief from removal under the CAT bears the burden of demonstrating
that it is “more likely than not” that she would be tortured if deported to her country of removal. 8
C.F.R. § 1208.16(c)(2); see also 8 C.F.R. § 1208.18(a) (defining “torture”). In assessing whether
an applicant has met this burden, “all evidence relevant to the possibility of future torture shall be
considered . . . .” 8 C.F.R. § 1208.16(c)(3). This Court recently addressed how to determine
whether an applicant has established that it is more likely than not that she would be tortured if
deported to the country of removal in Shakkuri v. Barr, No. 18-4189, 2019 WL 3074750 (6th Cir.
July 15, 2019). While Shakkuri is not binding upon this Court, it clearly explains and applies the
burden of proof applicable here. We therefore treat it as highly persuasive.
Shakkuri explained that two rules can be derived from the CAT framework. Id. at *3. The
first rule applies where an applicant has alleged independent probabilities of torture, “such as
torture from multiple entities or for multiple reasons . . . .” Id. at *4. In that circumstance, “the
probability of torture from all entities and for all reasons must be considered in the aggregate.” Id.
at *3 (citing Tran v. Gonzales, 447 F.3d 937, 944 (6th Cir. 2006)). An applicant has met her burden
if she is able to demonstrate that “the cumulative probability of torture”—from all entities and for
all reasons—“exceeds 50%.” Id. (quoting Kamara v. Attorney Gen. of the U.S., 420 F.3d 202, 213
(3d Cir. 2005)). Accordingly, an applicant can still bear her burden “even if the probability of
torture from each entity, or for each reason, taken alone, does not exceed 50%.” Id. (citing Kamara,

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420 F.3d at 214). The second CAT rule applies where an applicant has alleged interdependent
probabilities of torture, “such as torture that results from a hypothetical chain of events.” Id. at *4.
To meet her burden in that circumstance, an applicant must show that “each event in the chain
must be more likely than not to occur. Otherwise, it is impossible for the chain of events as a whole
to be more likely than not to occur.” Id. (citing In re J.F.F., 23 I&N Dec. 912, 917 (BIA 2006)).
These rules are neither inconsistent nor mutually exclusive. Id. In some cases, “an applicant might
allege both independent and interdependent probabilities of torture.” Id. In those cases, both rules
apply. Id.
This is such a case. Petitioner has alleged multiple characteristics that would lead to her
torture upon deportation to Iraq: her status as a single mother, her criminal record reflecting
homosexual experiences, her Christianity, her Westernized appearance, and her experience as a
victim of sex trafficking. In her brief, Petitioner contends that the BIA must consider her
probability of torture for all reasons in the aggregate. We agree. Petitioner also contends that the
BIA erred by considering her probability of torture as a chain of events. We disagree. Petitioner’s
argument is unavailing for a few reasons.
First, Petitioner herself portrayed the independent factors that could lead to her torture in
an interdependent form before the BIA. See Shakkuri, 2019 WL 3074750 at *5 (finding BIA
appropriately applied burden applicable to interdependent factors where Petitioner asserted factors
in interdependent form). Petitioner argued that “her ‘immigration file’ will cause her to be
questioned at the airport in Iraq, and that she will be scrutinized as a foreigner who left the country
(with her Western mannerisms and her inability to speak the language fluently) and that her history
will eventually become known,” then noted that she could be viewed as a prostitute “considering
how the Iraqi government views unwed mothers and victims of sexual trafficking,” and so “she

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has a clear probability of torture if she is removed.” (RE-7, Admin. R. at 35.) Petitioner further
contended that “[t]he chain of events [she] fears—detention upon arrival for being a single, unwed
mother with a criminal record, leading to subsequent torture—[is] more likely than not to occur.”
(Id. at 36.)
Indeed, Petitioner’s arguments before the BIA suggested that her objections to the IJ’s
application of the burden were not that her torture did not depend on a chain of events, but that her
torture depended on a chain of events acted out by some other party and that her chain of events
was not “hypothetical,” but “clearly probab[le].” (See id. at 34 (noting difference between her case
and J-F-F- was that the former “involved a chain of events, each of which were contingent upon
the respondent’s future actions,” whereas events leading to her probable torture were “contingent
upon the actions of the Iraqi government, and [her] identity and past actions which cannot be
changed”); id. at 35 (arguing she did not demonstrate merely a “hypothetical chain of events,” but
showed “clear probability” of imprisonment).) Petitioner does not make the former argument on
appeal; as for the latter, this Court does not have jurisdiction to weigh the evidence and determine
whether Petitioner showed that her torture is clearly probable, see Shabo, 892 F.3d at 239.
Second, the BIA did address the independent probabilities of torture Petitioner alleges in
cumulative form. The BIA here noted that Petitioner attempted to show through evidence that she
would be “identified and questioned due to, among other issues, her felony conviction, her child
born out of wedlock, her conversion to Christianity and her western attitude.” (RE-7, Admin. R.
at 4.) Rather than assessing whether Petitioner would be picked up for each reason individually,
the BIA took account of the independent reasons Petitioner may be identified in total in its analysis.
The BIA then looked to the likelihood that Petitioner’s history of forced prostitution (which
Petitioner argues makes her a felon under Iraqi law) would be discovered after she was identified

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because of these characteristics. (Id.) This is the same chain of events that the IJ addressed and
that Petitioner endorsed in her brief before the BIA. (Id. at 35, 91–94.) The BIA concluded that
Petitioner had not shown it was more probable than not that, after being identified, she would be
detained because of her prior forced prostitution. (Id. at 4 (“[The record] does not support that it is
more likely than not that the respondent will be considered to be a prostitute who will be detained,
and will be tortured as a result by the Iraqi government”) (citing Admin. R. at 91–96).) The BIA
thus found that at least the third step in Petitioner’s hypothetical chain of events was not more
likely than not to occur. Petitioner therefore did not establish that each step in her chain of events
was more likely than not to occur, and she did not meet her burden of showing that it was “more
likely than not” that she would be tortured. See Shakkuri, 2019 WL 3074750, at *5 (finding BIA
appropriately applied burden where it denied the petitioner’s claim upon finding that one event in
his alleged chain of events was not more likely than not to occur).
Finally, the BIA did not fail in its obligation to consider all the evidence Petitioner
presented in so finding. See 8 C.F.R. § 1208.16(c)(3). As acknowledged, “‘whether the BIA
correctly considered, interpreted, and weighed the evidence presented’ is not a constitutional issue
or question of law” that this Court has jurisdiction to consider. Shabo, 892 F.3d at 239 (quoting
Arestov, 489 F. App’x at 916). While “[f]actual errors can qualify as legal errors when ‘important
facts have been totally overlooked and others have been seriously mischaracterized,’” id. at 239–
40 (quoting Ventura-Reyes v. Lynch, 797 F.3d 348, 360 (6th Cir. 2015)), that is not the case here.
The BIA walked through the evidence Petitioner presented regarding her likelihood of torture (RE-
7, Admin. R. at 4), and even gave Petitioner an additional opportunity to develop that evidence in
an evidentiary hearing (see id. at 334). The BIA need not discuss each piece of evidence
individually in order to reassure this Court that it has met its duty to “consider the issues raised,

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and announce its decision in terms sufficient to enable a reviewing court to perceive that it has
heard and thought and not merely reacted.” Koyo v. Barr, 768 F. App’x 320, 327 (6th Cir. 2019)
(quoting Scorteanu v. INS, 339 F.3d 407, 412 (6th Cir. 2003)). And the question of whether the
BIA correctly credited and weighed that evidence is beyond our jurisdiction.
Because the BIA did not assign or apply an incorrect burden of proof, we thus deny relief
based on this issue. While we are mindful of the danger Petitioner faces upon deportation and
sympathetic to her plight, we cannot find legal error where there is none. And although we may or
may not agree with the BIA’s assessment of Petitioner’s probability of torture, that question is
beyond our purview.
C. Petitioner’s Evidentiary Standard
On appeal, Petitioner asserts that the BIA applied “an impossible evidentiary standard” by
requiring her to show that similarly situated women had been tortured in Iraq, since “Iraq has not
been accepting returnees like Ms. Saleh for decades.” (Pet’r Br. at 15–18.) Whether the BIA held
Petitioner to the correct evidentiary standard is a question of law, and this Court therefore has
jurisdiction to review it. See Shabo, 892 F.3d at 240. Petitioner exhausted this issue before the BIA
and preserved it for appeal. She argued on appeal that the IJ had required her to “show a near
certainty of torture based on a specific reason,” noted the dearth of evidence available to her, and
argued that “she did not need to show that . . . a specific threat has been directed towards her, only
that a similar person in similar circumstances would face the same probability of torture . . . .”
(RE-7, Admin. R. at 30–31, 33–36); see Huntington Nat’l Bank, 574 F.3d at 332 (holding that an
argument is preserved if a litigant (1) states “the issue with sufficient clarity to give the court and
opposing parties notice that it is asserting the issue” and (2) provides “some minimal level of
argumentation in support of it”). She revisits the issue now.

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In its order denying Petitioner’s application for deferral of removal under the CAT, the IJ
found that the Iraq Country Report submitted into evidence lacked “any evidence that women
returning from the United States have been persecuted or harmed by the Iraqi government”; stated
that “there is no concrete evidence that establishes a direct threat of torture against Iraqi women
deportees similarly situated to respondent as defined for purposes of CAT relief, or to respondent
specifically”; and found that “general violent country conditions do not establish that it is more
likely than not that respondent, in particular, would be tortured as required by the Sixth Circuit.”
(RE-7, Admin. R. at 93, 95–96.) The BIA noted in its review of the IJ decision that Petitioner’s
expert “was unable to cite a single example of a woman returning to Iraq being detained and subject
to torture,” and that the record also didn’t provide any such example. (Id. at 4.)
We conclude that the BIA applied the correct evidentiary standard in assessing Petitioner’s
claim. To qualify for withholding of removal under the CAT, an applicant must demonstrate a
“particularized threat of torture.” Almuhtaseb v. Gonzales, 453 F.3d 743, 751 (6th Cir. 2006)
(quoting Castellano-Chacon v. INS, 341 F.3d 533, 551 (6th Cir. 2003)). This must be more than
general allegations of a threat against a group that the applicant belongs to. See, e.g., id. (evidence
that “Israelis have detained and tortured Palestinians . . . do[es] not show that it is ‘more likely
than not’ that Almuhtaseb herself would be subject to such treatment”); Chen v. Holder, 394 F.
App’x 252, 258 (6th Cir. 2010) (finding showing that members of applicant’s church had been
tortured, in light of other evidence, did not suffice to demonstrate a “particularized threat” against
the applicant).
The IJ and the BIA applied this standard in assessing Petitioner’s evidence. (See RE-7,
Admin. R. at 96 (assessing evidence that it is “more likely than not that respondent, in particular,

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would be tortured”).)2 While the BIA did not explicitly state that it was assessing whether
Petitioner had shown a “particularized threat,” its analysis suggests that it applied that standard, as
it considered whether Petitioner’s evidence showed a threat to individuals like her, including
women, Christian converts, and those returning to Iraq. (See id. at 4.)
Neither case law nor the record supports Petitioner’s conclusion that she was held to an
“impossible evidentiary standard.” (Pet’r Br. at 15.) Petitioner cites Tran v. Gonzales for the
proposition that a petitioner’s due process rights are implicated when the BIA requires a petitioner
to show that “other returnees faced torture when, in fact, [the country of removal] was not
accepting returnees at that time.” (Pet’r Br. at 16.) In actuality, this Court found in Tran that a
petitioner’s due process rights are implicated when the BIA applies an inappropriate standard of
review or fails to identify the standard of review it is applying. 447 F.3d at 944. The Court did not
address the Tran petitioner’s argument that “the BIA placed an impossible burden on him—a
burden to prove that other returnees faced torture when, in fact, [the country of removal] does not
accept returnees.” Id. Thus, Tran does not support Petitioner’s proposition, and is otherwise
inapposite because the BIA here applied the correct standard in its review of the IJ’s findings of
fact: clear error. See id. at 943 (“The BIA reviews an IJ’s findings of fact for clear error.”); (RE-
7, Admin. R. at 4 (“Based on our review of the evidence of record, we conclude that the findings
of the Immigration Judge are not clearly erroneous.”).)
2 Notably, the IJ also looked for evidence that others “similarly situated” to Petitioner were tortured.
(RE-7, Admin R. at 95.) This analysis is more typically applied to assess whether an applicant is eligible
for withholding of removal under the INA, rather than the CAT. See 8 C.F.R. § 1208.16(b)(2)(i). While this
Court does not generally use the language “similarly situated” in assessing a particularized threat, it is
appropriate for an IJ to assess whether others like a petitioner were tortured, as this is “evidence relevant to
the possibility of future torture,” 8 C.F.R. § 1208.16(c)(3). Moreover, Petitioner herself conceded that this
was an appropriate consideration. (RE-7, Admin. R. at 35–36 (stating Petitioner must show “that a similar
person in similar circumstances would face the same possibility of torture”).)

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While we agree that it would be problematic to require Petitioner to show that Iraqi women
deportees specifically had been tortured, given the limits of the evidence available on that
population, we need not decide whether holding a petitioner to such an evidentiary standard would
constitute reversible error, because the record suggests that Petitioner was not held to the standard
she alleges. Although both the IJ and the BIA did look for evidence that Iraqi women deportees
had been tortured, each also looked for evidence that a broader group was subject to torture by the
Iraqi government. For example, the BIA considered the source of “problems [] faced by women
or Christian converts” and whether there was evidence that Petitioner’s expert’s female colleagues
traveling to Iraq had been detained, (RE-7, Admin. R. at 4), suggesting it would have considered
evidence of torture of such groups relevant to whether Petitioner had met her evidentiary burden.
Likewise, the IJ discussed evidence of torture against “women without male escorts,” prostitutes,
women, and trafficking victims as broader groups. (Id. at 93–96.) While Petitioner correctly notes
that at least her expert’s colleagues “do not possess [all] the same incriminating characteristics” as
she does (Pet’r Br. at 17), the BIA considered evidence beyond just that.
Thus, we conclude that the BIA and IJ held Petitioner to the correct evidentiary standard,
and we deny relief on this question. Any further conclusions are beyond this Court’s purview, as
we are not permitted to address whether the IJ and BIA properly concluded that the evidence was
insufficient. Shabo, 892 F.3d at 239.
CONCLUSION
For the reasons set forth above, we DISMISS IN PART and DENY IN PART the petition
for review.

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MURPHY, Circuit Judge, concurring. I concur in the court’s opinion and write only to
express uncertainty about the nature of the exhaustion requirement in 8 U.S.C. § 1252(d)(1).
Section 1252(d)(1) indicates that “[a] court may review a final order of removal only if” “the alien
has exhausted all administrative remedies available to the alien as of right.” Id. With one
exception, our cases have repeatedly called this requirement a jurisdictional limit on our power to
consider unexhausted issues rather than a non-jurisdictional “claims-processing” rule. See, e.g.,
Gazeli v. Sessions, 856 F.3d 1101, 1106–07 (6th Cir. 2017); Montanez-Gonzalez v. Holder, 780
F.3d 720, 722, 724 (6th Cir. 2015); Camaj v. Holder, 625 F.3d 988, 992 (6th Cir. 2010); Gor v.
Holder, 607 F.3d 180, 185–86 (6th Cir. 2010); Madrigal v. Holder, 572 F.3d 239, 243 (6th Cir.
2009); King v. Holder, 570 F.3d 785, 790 n.4 (6th Cir. 2009); Liu v. Holder, 560 F.3d 485, 493–
94 (6th Cir. 2009); Khalili v. Holder, 557 F.3d 429, 433 (6th Cir. 2009); Sterkaj v. Gonzales, 439
F.3d 273, 279 (6th Cir. 2006); Hassan v. Gonzales, 403 F.3d 429, 432–33 & n.4 (6th Cir. 2005);
Hasan v. Ashcroft, 397 F.3d 417, 419–20 (6th Cir. 2005); Csekinek v. INS, 391 F.3d 819, 822–23
(6th Cir. 2004); Ramani v. Ashcroft, 378 F.3d 554, 558–60 (6th Cir. 2004); cf. Perkovic v. INS, 33
F.3d 615, 619 (6th Cir. 1994); but see Al-Najar v. Mukasey, 515 F.3d 708, 713 n.2 (6th Cir. 2008).
The “jurisdictional” label has “considerable practical importance for judges and litigants.”
Henderson ex rel. Henderson v. Shinseki, 562 U.S. 428, 434 (2011). Courts must ensure
themselves of their subject-matter jurisdiction on their own initiative. Id. So if the exhaustion
mandate were jurisdictional, we would have a duty to consider whether a petitioner had exhausted
an issue even if the government failed to assert an exhaustion argument—indeed, even if the
government intentionally waived the argument. Herr v. U.S. Forest Serv., 803 F.3d 809, 822–23
(6th Cir. 2015). Similarly, we could not bypass such a jurisdictional requirement and proceed to
the merits even when it would be easier to reject a petitioner’s claim on its merits than to decide

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whether the petitioner had exhausted the claim. See Steel Co. v. Citizens for a Better Env’t, 523
U.S. 83, 93–95 (1998); cf. 28 U.S.C. § 2254(b)(2).
I see reasons to doubt this jurisdictional view of § 1252(d)(1). For the last 15 years, “the
Supreme Court has been on a mission to rein in profligate uses of ‘jurisdiction,’ a word with ‘many,
too many, meanings.’” Herr, 803 F.3d at 813 (quoting Arbaugh v. Y&H Corp., 546 U.S. 500, 510
(2006)). The word “jurisdictional” is “generally reserved for prescriptions delineating the classes
of cases a court may entertain (subject-matter jurisdiction) and the persons over whom the court
may exercise adjudicatory authority (personal jurisdiction).” Fort Bend Cty. v. Davis, 139 S. Ct.
1843, 1848 (2019). The Court has thus criticized older opinions for using stray “jurisdictional”
language to describe statutory requirements that, while mandatory, do not limit a court’s
adjudicative power. See Eberhart v. United States, 546 U.S. 12, 16 (2005) (per curiam). Since
this clarification, the Court has repeatedly found that many preconditions to sue are not
“jurisdictional” within the narrow sense of the word. See Fort Bend Cty., 139 S. Ct. at 1849–50.
While our court has generally “picked up on the [Supreme Court’s] message,” Herr, 803
F.3d at 814, we have yet to do so in this context. Our initial decisions characterizing § 1252(d)(1)
as jurisdictional largely predate the Supreme Court’s clarification of the jurisdictional label. E.g.,
Ramani, 378 F.3d at 558–60. Since then, we have continued to treat § 1252(d)(1) as jurisdictional
merely by citing our earlier decisions without considering the effect, if any, of the Supreme Court’s
intervening instructions. E.g., Gazeli, 856 F.3d at 1106–07; Liu, 560 F.3d at 494.
Yet our earlier decisions rest on logic that is hard to reconcile with those instructions.
These decisions suggest that § 1252(d)(1) is jurisdictional because its statutory mandate—unlike
a court-created mandate—originates with Congress. Ramani, 378 F.3d at 559. I agree that
§ 1252(d)(1) is more mandatory than the judicially created exhaustion rules that come with

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freewheeling judicial exceptions. See Ross v. Blake, 136 S. Ct. 1850, 1857 (2016); Island Creek
Coal Co. v. Bryan, 937 F.3d 738, 751–52 (6th Cir. 2019). But just because exhaustion is
mandatory does not make it jurisdictional. That is the entire point of the Supreme Court’s cases.
It has made this very point for requirements resembling § 1252(d)(1)’s exhaustion rule. To list a
few examples, it has held that the following requirements are not jurisdictional: The Clean Air
Act’s requirement that a party must raise an argument in public comments before asserting it in
court, EPA v. EME Homer City Generation, L.P., 572 U.S. 489, 511–512 (2014); Title VII’s
requirement that a party must file an EEOC charge before bringing suit, Fort Bend Cty., 139 S. Ct.
at 1850; and the Copyright Act’s requirement that a party must register a work before asserting an
infringement claim, Reed Elsevier, Inc. v. Muchnick, 559 U.S. 154, 157, 163–64 (2010).
Elsewhere, we too have recognized that the Supreme Court’s framework “applies to exhaustion
requirements no less than it does to” other claims-processing rules. Herr, 803 F.3d at 822.
Language in our cases aside, I’m not sure § 1252(d)(1)’s text can be read to establish a
jurisdictional limit. To be sure, this text—“[a] court may review a final order of removal only if”
“the alien has exhausted all administrative remedies available to the alien as of right”—does
impose a condition on the court’s “review.” Id. Congress thus wrote it differently from exhaustion
mandates that impose conditions on a plaintiff’s right to sue—e.g., “[n]o action shall be brought . . .
until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a); see 7
U.S.C. § 6912(e). But § 1252(d)(1) does not mention jurisdiction, and I fail to see a “‘clear’
indication that Congress wanted the rule to be ‘jurisdictional.’” Henderson, 562 U.S. at 436
(quoting Arbaugh, 546 U.S. at 515–16). Indeed, courts usually “regard exhaustion as an
affirmative defense,” not a jurisdictional requirement. Jones v. Bock, 549 U.S. 199, 212 (2007).
And other subsections in § 1252—unlike § 1252(d)(1)—do explicitly address jurisdiction. See

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Reed Elsevier, 559 U.S. at 164–65. Section 1252(a)(1) provides the initial jurisdictional grant,
saying that “[j]udicial review of a final order of removal” shall be governed by the rules in chapter
158 of Title 28, which give circuit courts jurisdiction over petitions for review from agency actions.
28 U.S.C. §§ 2342, 2349; Mata v. Lynch, 135 S. Ct. 2150, 2154 (2015). Section 1252(a)(2) then
carves out certain immigration orders from this grant of jurisdiction in unmistakable language: “no
court shall have jurisdiction to review . . . .” 8 U.S.C. § 1252(a)(2)(A)–(C). Section 1252(d)(1)
contains no similar language, and courts presume that Congress acts intentionally when using
differing language across subsections. See Russello v. United States, 464 U.S. 16, 23 (1983).
Treating § 1252(d)(1)’s exhaustion requirement as jurisdictional also conflicts with the
Supreme Court’s instruction that “[j]urisdictional rules should be clear” and easy to administer.
Direct Mktg. Ass’n v. Brohl, 135 S. Ct. 1124, 1133 (2015) (citation omitted); Hertz Corp. v. Friend,
559 U.S. 77, 94 (2010). A requirement to exhaust administrative remedies generally compels a
party to “complete the administrative review process in accordance with the applicable [agency’s]
procedural rules.” Jones, 549 U.S. at 218 (quoting Woodford v. Ngo, 548 U.S. 81, 88 (2006)). If
Congress meant for this mandate to be jurisdictional, a court’s adjudicative power would turn on
an agency’s rules and precedents for raising issues—rules and precedents that could change over
time. See Island Creek, 937 F.3d at 750–51; cf. Kucana v. Holder, 558 U.S. 233, 252 (2010). A
jurisdictional rule is not easy to administer if it requires courts to become experts on such internal
agency processes as whether a petitioner has adequately “identif[ied] the findings of fact, the
conclusions of law, or both, that are being challenged” in the notice of appeal to the Board of
Immigration Appeals. 8 C.F.R. § 1003.3(b).
All of this said, I recognize that most circuit courts continue to treat this exhaustion
requirement as jurisdictional. See Sunoto v. Gonzales, 504 F.3d 56, 59 (1st Cir. 2007); Hoxha v.

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Holder, 559 F.3d 157, 159 n.3 (3d Cir. 2009); Cabrera v. Barr, 930 F.3d 627, 631 (4th Cir. 2019);
Vazquez v. Sessions, 885 F.3d 862, 867–68 (5th Cir. 2018); Martinez Carcamo v. Holder, 713 F.3d
916, 925 (8th Cir. 2013); Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir. 2004); Molina v. Holder,
763 F.3d 1259, 1262–63 (10th Cir. 2014); Alim v. Gonzales, 446 F.3d 1239, 1253 (11th Cir. 2006).
But, like our cases, most of these decisions do not confront the Supreme Court’s recent
jurisprudence in this area. And, regardless, a circuit split already exists. The Seventh Circuit has
long followed the Supreme Court’s lead when interpreting § 1252(d)(1). It holds that
“[e]xhaustion is a condition to success in court but not a limit on the set of cases that the judiciary
has been assigned to resolve.” Korsunskiy v. Gonzales, 461 F.3d 847, 849 (7th Cir. 2006)
(Easterbrook, J.); see Chavarria-Reyes v. Lynch, 845 F.3d 275, 279 (7th Cir. 2016); Abdelqadar
v. Gonzales, 413 F.3d 668, 670–71 (7th Cir. 2005); cf. Zhong v. U.S. Dep’t of Justice, 480 F.3d
104, 120 (2d Cir. 2007). That strikes me as the better reading.
One last point. This distinction between jurisdictional and mandatory rules will not matter
in many cases. After all, a court generally must enforce a mandatory rule (just as much as a
jurisdictional one) when a party properly invokes it. See Ross, 136 S. Ct. at 1856–57; EME Homer,
572 U.S. at 512. In this case, for example, the government timely raised its exhaustion defense
and Azal Mehdi Saleh provided no basis for excusing the requirement to exhaust her arguments
with the Board of Immigration Appeals. Whether jurisdictional or mandatory, this exhaustion
requirement forecloses Saleh’s new arguments before this court. Cf. Hoogerheide v. IRS, 637 F.3d
634, 639 (6th Cir. 2011). But this distinction will matter in future cases (when, for example, the
government fails to raise an exhaustion defense). In such a case, I would be open to addressing
the impact of the Supreme Court’s recent precedent on the nature of 8 U.S.C. § 1252(d)(1)’s

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exhaustion requirement. Cf. Palencia v. Barr, No. 18-4170, 2019 WL 5692681, at *2 n.1 (6th Cir.
Nov. 4, 2019).

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