Sixth Circuit Upholds Torture Claim Denial of Iraqi Woman With Same-Sex Sexual Abuse Conviction

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By Bryan Xenitelis. The LGBT Bar of NY’s LGBT Law Notes is the most comprehensive monthly publication covering the latest legal developments.

The U.S. Court of Appeals for the Sixth Circuit has upheld an order of removal and denial of Convention Against Torture (CAT) relief by the Board of Immigration Appeals (BIA) against an Iraqi former refugee, who claimed that she would be arrested and tortured upon her return to Iraq on account of several factors, including that she had been forced into prostitution and raped both in Iraq and in the United States, that she was an unwed woman, her conversion to Christianity, and because of her criminal conviction of Criminal Sexual Conduct where the victim was a minor girl, in Saleh v. Barr, 2019 U.S. App. LEXIS 36731, 2019 WL 6770008 (6th Cir., December 12, 2019).

The Petitioner described a traumatic past in Iraq, where she was forced into prostitution and abused. She was eventually granted refugee status and lawfully relocated to the United States, where she was also raped and forced into prostitution. During her nine years in the United States, she converted to Christianity and gave birth to a child (who is, of course, a U.S. citizen). While she was living with a social worker, the social worker’s granddaughter accused the Petitioner of sexual assault, and the. Petitioner eventually was convicted of a Michigan Criminal Sexual Conduct offense to which she pleaded nolo contendere, an outcome which Petitioner claimed to have agreed to because she. believed the crime, a misdemeanor, would have no immigration consequences.

The Petitioner was charged by the government with being removable from the United States on account of having a “Sexual Abuse of a Minor” “Aggravated Felony” conviction, which limited her relief solely to seeking protection under the CAT. Petitioner claimed that she was more likely than not that on return to Iraq she would be detained and tortured for many reasons: her prior forced prostitution constituted a felony in Iraq; she was unwed; she had converted to Christianity; and that her U.S. criminal record would reveal that she had engaged in same-sex sexual conduct. Both the Immigration Judge and the BIA upheld the removability charge and found that the Petitioner failed to meet her burden necessary to receive CAT Relief.

Responding to her petition for review, the 6th Circuit panel summarized the very complex factual and procedural history of the case, and ultimately upheld the BIA’s removal order. Writing for the panel, Circuit Judge Eric L. Clay noted that only questions of law could be addressed on judicial review. He first addressed the Petitioner’s arguments regarding whether her sexual conduct plea constituted an “aggravated felony” that would render her removable. Because Petitioner had made several arguments about why the crime did not constitute an “aggravated felony” for the first time in her Petition for review, Clay found that the panel could not consider the merits of those arguments because she had failed argue them in the administrative forum. One of Petitioner’s rejected arguments arose out of a newly-decided Supreme Court precedent that was announced after the BIA had denied her appeal of the Immigration Judge’s decision, but Clay ruled that Petitioner’s only way to have properly preserved and exhausted that argument would have been if she had filed a motion with the BIA to reopen her appeal at that level. Finding none of the issues she sought to raise on this appeal reviewable, the court refused to address them on the merits.

Regarding Petitioner’s torture claim, she argued that the Board erred in its handling of the burden of proof. Under the laws and case history relating to the CAT, Petitioner could meet her burden by proving it was more likely than not that she would be tortured, on one or both of two theories: 1) that in reviewing multiple reasons for torture, she could prove in the aggregate among them a 50 percent or higher likelihood of torture; and/or 2) a chain of events would occur leading to torture, and that the Petitioner could prove a 50 percent or higher likelihood of each link in the chain occurring. The Petitioner argued that the Board erred because they considered only the “chain of events” analysis and found that she failed to meet it. Judge Clay ruled that either theory could be applied to the case, and therefore found no mistake by the Board to consider the “chain of events” theory.

The Petitioner also argued that the Board held her to an “impossible evidentiary standard.” After a lengthy discussion of case law and the discussions by the. IJ and BIA finding no “concrete evidence that establishes a direct threat of torture against Iraqi women deportees” who are similar in relevant respects to the Petitioner, Judge Clay ruled that the BIA applied the correct evidentiary standard and upheld its decision denying CAT relief.

The Petitioner was represented on appeal by Ruby Aaron Robinson, Michigan Poverty Law Program, Ypsilanti, MI; and Catherine J. Villanueva, Michigan Immigrant Rights Center, Grand Rapids, MI. From references with the court’s opinion, it seems that Petitioner had advice of counsel prior to her decision to plead no contest on the sexual abuse charge, but her counsel at that stage is not identified in the opinion.

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