Amer Faso v. WILLIAM P. BARR, Attorney General

NOT RECOMMENDED FOR PUBLICATION
File Name: 20a0462n.06
No. 19-4156
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
AMER FASO,
Petitioner,
v.
WILLIAM P. BARR, Attorney General,
Respondent.
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ON PETITION FOR REVIEW
FROM THE UNITED STATES
BOARD OF IMMIGRATION
APPEALS
BEFORE: GRIFFIN, KETHLEDGE, and THAPAR, Circuit Judges.
GRIFFIN, Circuit Judge.
Amer Faso, a native and citizen of Iraq, petitions this court for review of a Board of
Immigration Appeals order. The Board’s order dismissed Faso’s appeal of an Immigration Judge
(IJ) decision that denied his application for deferral of removal under the Convention Against
Torture (CAT). For the reasons that follow, we deny his petition.
I.
In 2000, Faso was admitted to the United States as a refugee under section 207 of the
Immigration and Nationality Act (8 U.S.C. § 1157). He became a lawful permanent resident of
the United States on August 19, 2003. On December 2, 2003, Faso was convicted of attempting
to possess—with intent to distribute—marijuana in violation of Michigan law. See Mich. Comp.
Laws § 333.7401(2)(d)(iii). Based on that conviction, the Department of Homeland Security
issued Faso a notice to appear, charging him as removable on three bases. Faso did not contest his

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removability, but he requested (1) withholding of removal pursuant to 8 U.S.C. § 1231(b)(3); (2)
withholding of removal pursuant to the Convention Against Torture; and (3) deferral of removal
pursuant to the Convention Against Torture. In September 2004, the Immigration Judge denied
Faso’s requests and ordered him to be removed.
Faso did not appeal that IJ decision to the Board of Immigration Appeals, but years later,
in 2017, he moved to reopen the proceedings in Immigration Court.1 He sought relief under the
Convention Against Torture and claimed changed country conditions. Faso argued that conditions
in Iraq had deteriorated and if he were removed there, he would face an “increased risk of being
tortured and killed.” Homeland Security opposed the motion. The IJ granted the motion to reopen,
but cautioned Faso that it did not “find that [he] ha[d] met his burden to prove that it is more likely
than not that he will be tortured by or with the acquiescence of the Iraqi government.” The more-
likely-than-not determination, the IJ indicated, would “be addressed at an evidentiary hearing.”
Faso argued that the IJ should “grant[ ] [him] [d]eferral under the Convention Against
Torture because he w[ould] more likely than not suffer torture if removed to Iraq.” To make his
case, he offered evidence, including declarations from Rebecca Heller and Daniel Smith. Faso
wanted the IJ to treat Heller and Smith as experts, but the IJ declined to do so. Ultimately, the IJ
found that Faso had failed to meet his burden to demonstrate that it was more likely than not that
he would be tortured if he returned to Iraq and thus denied Faso’s application for deferral of
1Ordinarily, a petitioner must move to reopen his immigration proceedings “within 90 days
of the date of entry of a final administrative order of removal.” See 8 U.S.C. § 1229a(c)(7)(C)(i);
Trujillo Diaz v. Sessions, 880 F.3d 244, 249 (6th Cir. 2018). However, that deadline does not
apply in some circumstances, such as if (1) “the basis of the motion is to apply for . . . withholding
of removal under the Convention Against Torture” and (2) the motion “is based on changed
country conditions arising in the country of nationality or the country to which removal has been
ordered, if such evidence is material and was not available and could not have been discovered or
presented at the previous proceeding.” 8 C.F.R. § 1003.23(b)(4)(i); Bi Feng Liu v. Holder, 560
F.3d 485, 490–91 (6th Cir. 2009).

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removal under the Convention Against Torture. Accordingly, the IJ ordered Faso removed to Iraq
based on the charges in his notice to appear.
Faso appealed the IJ’s decision to the Board. He argued, among other things, that the IJ
committed legal error when it refused to qualify Heller and Smith as experts. Homeland Security
opposed the appeal. It contended that the IJ’s refusal to qualify Heller and Smith as experts was
not error. Faso did not persuade the Board; it dismissed the appeal and denied the remand request.
This timely petition followed.
II.
We review Faso’s factual challenge under the “substantial-evidence standard,” which
means the agency’s “findings of fact are conclusive unless any reasonable adjudicator would be
compelled to conclude to the contrary.”2 Nasrallah, 140 S. Ct. at 1692 (quoting
8 U.S.C. § 1252(b)(4)(B)). “Questions of law and constitutional questions are subject to de novo
review, with deference to the [Board]’s reasonable interpretation of the statutes and regulations.”
Lin v. Holder, 565 F.3d 971, 976 (6th Cir. 2009). When the Board reviews an “immigration
judge’s decision and issues a separate opinion, rather than summarily affirming the immigration
judge’s decision, we review the [Board’s] decision as the final agency determination.” Khalili v.
Holder, 557 F.3d 429, 435 (6th Cir. 2009). But “[t]o the extent the [Board] adopted the
immigration judge’s reasoning,” we “also review[ ] the immigration judge’s decision.” Id.
2The parties disagree on whether some of petitioner’s claims are factual challenges to the
Board’s decision, and on that basis, are not within our jurisdiction to review. A recent Supreme
Court case, Nasrallah v. Barr, resolved a circuit split on that question and clarified the scope of
our subject-matter jurisdiction in the context of challenges to Board decisions that resolve requests
for CAT relief. 140 S. Ct. 1683 (2020). Based on the Supreme Court’s clarification, we have
subject-matter jurisdiction to adjudicate the factual, legal, and constitutional challenges in this
case. See id. at 1687–88, 1691–93; Kilic v. Barr, — F.3d —, No. 19-4076, 2020 WL 3888178, at
*2 (6th Cir. July 10, 2020).

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A.
To be eligible for CAT relief, a petitioner must “establish that it is more likely than not that
he or she would be tortured if removed to the proposed country of removal.”
8 C.F.R. § 1208.16(c)(2); Bonilla-Morales v. Holder, 607 F.3d 1132, 1139 (6th Cir. 2010). To
satisfy that burden, Faso offers one argument: If the Board had qualified two of his witnesses—
Heller and Smith—as experts, his “request for [CAT] relief likely would have been granted.” He
does not explain what torture he believes awaits him in Iraq nor the evidence for that belief. He
does not even articulate how Heller’s and Smith’s declarations—if given expert weight—would
affect the result. Instead, Faso baldly asserts that he “likely would have” received CAT relief.
Thus, Faso has given us no reason to disturb the Board’s affirmance of the IJ’s finding that he “did
not meet his burden of proof for protection pursuant to the Convention Against Torture.”
Accordingly, Faso has not met his burden to establish that it is “more likely than not” that he would
be tortured if he were removed to Iraq. See Bonilla-Morales, 607 F.3d at 1139.
B.
Faso asserts that the Board “committed legal error and acted arbitrarily by treating [his]
evidence differently than how it treated the same evidence in factually similar cases.” We disagree.
For two of the three cases Faso relies upon to establish inconsistent treatment, “the reasons
for the inconsistent outcomes are readily apparent.” Ishac v. Barr, 775 F. App’x 782, 789 (6th
Cir. 2019). In those two cases, the Board remanded because the IJ did not sufficiently explain why
it did not qualify the witnesses as experts. In the first case, the Board concluded that the IJ “did
not provide sufficient analysis as to why the declarants” did not warrant qualification as experts.
The Board, in the second case, determined that the IJ “d[id] not clearly address whether [the
witnesses] [we]re expert witnesses or ‘percipient’ witnesses,” and directed the IJ “to more fully

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discuss whether the various witnesses presented [we]re expert witnesses and if not, why not.”
Faso’s case is materially different from those two because the Board adopted the IJ’s reasons for
not qualifying Heller and Smith as experts. Regarding Heller, the IJ reasoned that “it [wa]s unclear
when was the last time Heller . . . visited Iraq, if ever,” “most of Heller’s declaration [wa]s based
on second-hand stories she [had] collected during her litigation efforts, not from her first-hand
knowledge of and experiences in Iraq,” and “[h]er declaration also predate[d] many significant
events in Iraq.” As for Smith, the IJ explained that “while Smith lives in Iraq, the [IJ] does not
believe [Smith’s] journalistic experience qualifications merit affording expert-level weight to
[Smith’s] declaration,” “Smith’s statements are largely based on anonymous conversations,” and
“the anonymity [of Smith’s sources] diminishes the [IJ’s] ability to assess the evidence
objectively.” Faso does not articulate errors in the IJ’s reasoning regarding Heller and Smith, and
we see none. Thus, there is no inconsistency between Faso’s case and the first two cases he relies
on.
That leaves the third case. There, the Board squarely disagreed with the IJ regarding expert
status for Heller and Smith:
While we acknowledge the Immigration Judge’s reasoning, we respectfully
conclude that Ms. Heller and Mr. Smith’s credentials are not qualitatively or
considerably different from those that were deemed experts. On remand, therefore,
the Immigration Judge should consider Ms. Heller and Mr. Smith as expert
witnesses and afford their testimony due weight.
But, based on what petitioner has provided to us, we do not know why the IJ in the third case
refused to qualify Heller and Smith as experts. Without that information, we are unable to
conclude that Faso was similarly situated to that applicant.3 But even if Faso were similarly
3Faso’s case is also materially different from Kada v. Barr, 946 F.3d 960 (6th Cir. 2020),
another case involving allegations that the Board acted inconsistently. First, in that case, the
applicants were similarly situated, id. at 966–67, while here, Faso fails to establish similarity.

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situated, “some degree of inconsistency ‘is unavoidable—after all, administrators are not
automatons.’” Nissan v. Barr, 788 F. App’x 365, 367 (6th Cir. 2019) (per curiam) (quoting Henry
v. INS, 74 F.3d 1, 5–6 (1st Cir. 1996)). In other words, “[j]ust as ‘one swallow doesn’t make a
summer,’ ‘one inconsistent precedent’ doesn’t make a decision arbitrary and capricious.” Id.
(quoting NLRB v. Sunnyland Packing Co., 557 F.2d 1157, 1160 (5th Cir. 1977)). That holds true
here.
Moreover, Faso’s three cases are unreported and the Board “accords no precedential value
to its unreported decisions.” Jomaa v. United States, 940 F.3d 291, 298 (6th Cir. 2019) (quoting
De la Rosa v. U.S. Att’y Gen., 579 F.3d 1327, 1336 (11th Cir. 2009)). Thus, his claim cannot be
that the Board failed to follow its own binding cases. See Ishac, 775 F. App’x at 788.
Finally, “[a]n agency decision is arbitrary and capricious if the agency fails to examine
relevant evidence or articulate a satisfactory explanation for the decision.” Jomaa, 940 F.3d at
296. Here, Faso does not argue that the Board failed to consider relevant evidence; instead, he
claims that the Board improperly weighed evidence by not qualifying Heller and Smith as experts.
Therefore, this path to demonstrating arbitrariness and capriciousness is unavailing. Regarding
the other path, petitioner contends that the Board “offered no rationale to explain how it decided
the value of th[e] testimony [of Heller and Smith].” But, as we discussed above, the Board adopted
the IJ’s reasoning for not qualifying these witnesses as experts. And moreover, Faso has not
Second, in Kada, the heart of the inconsistency dispute was whether applicants, with purportedly
similar evidence, were receiving different outcomes on the substantive question of whether certain
evidence could lead an IJ to grant CAT relief. Id. Faso, however, only claims inconsistency about
the evidentiary issue of whether to qualify witnesses as experts.

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identified any errors in the IJ’s reasoning, and we see none.4 Accordingly, Faso’s inconsistency
argument fails.
C.
One potential issue remains. Faso asserts, in his statement of issues, that “the [Board]
unfairly prejudiced [his] efforts to establish that he would ‘more likely than not’ be tortured if
removed to Iraq” “by failing to qualify [Heller and Smith] [as expert] witnesses . . . .” Although
Faso does not mention any constitutional provisions in his brief, we believe—based on our
knowledge of immigration law and his use of the term “prejudiced”—his position is that the
Board’s refusal to qualify Heller and Smith as experts violated his Fifth Amendment right to due
process.
For a due process claim to succeed, a petitioner must show—among other things—“that he
was prejudiced by the violation.” Moreno-Martinez v. Barr, 932 F.3d 461, 464 (6th Cir. 2019).
To establish prejudice, a petitioner “must demonstrate a reasonable probability that, but for [the
due process violation], he would have been entitled to remain in the United States.” Kada, 946
F.3d at 965. Here, after Faso identifies the prejudice issue, he fails to develop an argument to
support it. Instead, he merely declares that given “the particular circumstances surrounding Mr.
Faso’s case,” the Board “would have decided [his] case differently” if it had “acted in a consistent
manner” by qualifying Heller and Smith as experts. That is not enough. “A party may not present
a skeletal argument, leaving the court to put flesh on its bones.” McGrew v. Duncan, 937 F.3d
664, 669 (6th Cir. 2019). Faso’s “failure to develop a cogent argument” renders it abandoned.
4To the extent Faso argues that the IJ’s (and—by extension—the Board’s) analysis
regarding the qualification of experts was flawed because it yielded a purportedly inconsistent
result, we have already addressed and rejected that argument.

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Burley v. Gagacki, 834 F.3d 606, 618 (6th Cir. 2016). Accordingly, we provide no further review
of Faso’s purported due process claim.
III.
For these reasons, we deny Faso’s petition for review.

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