United States Court of Appeals

For the Eighth Circuit

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Nos. 18-3704/19-2368 

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Raju Ahmed

Petitioner

v. 

William P. Barr, Attorney General of the United States

Respondent 

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Petition for Review of an Order of the 

Board of Immigration Appeals

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Submitted: June 18, 2020

Filed: September 4, 2020 

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Before LOKEN and GRASZ, Circuit Judges, and CLARK,1 District Judge.

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CLARK, District Judge.

Petitioner Raju Ahmed, a citizen of Bangladesh, entered the United States on 

a student visa. While in the country, he was convicted of two aggravated felonies. 

When the Department of Homeland Security moved to deport Ahmed based on those 

convictions, Ahmed sought deferral of removal under the Convention Against 

1

The Honorable Stephen R. Clark, United States District Judge for the Eastern 

District of Missouri, sitting by designation. 
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Torture (CAT), 8 C.F.R. § 1208.16(c), claiming a fear of torture because he is a 

convert from Islam to Christianity. Finding that Ahmed had failed to show he was 

more likely than not to face torture if removed, the Immigration Judge denied his 

request for deferral and the Board of Immigration Appeals (Board) affirmed. Ahmed 

later moved the Board to reopen his case, claiming new evidence, and the Board 

denied his motion to reopen. 

Ahmed petitioned this Court for review of the Board’s decisions. We deny 

the petitions for review.

I. Background 

Ahmed is a native and citizen of Bangladesh. He entered the United States on 

a non-immigrant student visa in 2000. In 2005, Ahmed, pleaded guilty to two 

felonies in Kansas: attempted aggravated burglary and attempted aggravated sexual 

battery. He was sentenced to 24 months in prison and 48 months of probation.

In 2006, the Department of Homeland Security issued Ahmed an 

administrative order of removal pursuant to section 238 of the Immigration and 

Nationality Act (INA). Section 238 provides that “[a]ny alien who is convicted of 

an aggravated felony at any time after admission is deportable.” 8 U.S.C. § 

1227(a)(2)(A)(iii). The statute defines “aggravated felony” to include a “burglary 

offense for which the term of imprisonment is at least one year.” 8 U.S.C. § 

1101(a)(43)(G). Despite issuance of the final administrative order of removal in 

2006, DHS did not enforce the order or remove Ahmed to Bangladesh, but released 

him subject to an Order of Supervision.

For the next twelve years, Ahmed continued to reside and work in the United 

States. In 2015, he married his wife. Together, the couple have two daughters, who 

are United States citizens.

In 2018, DHS moved to execute the final administrative order of removal. 

Before he was removed, Ahmed expressed a fear of persecution and torture if he was 
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removed to Bangladesh because of his conversion from Islam to Christianity. An 

Immigration Judge conducted a merits hearing on Ahmed’s application for relief 

from removal. Ahmed sought relief on two grounds: withholding of removal under 

INA section 241(b)(3), 8 U.S.C. § 1231(b)(3), and protection from removal under 

the CAT. Finding Ahmed was ineligible for withholding of removal under INA 

section 241(b)(3) because of his felony convictions, the Immigration Judge 

considered Ahmed’s request for deferral of removal under the CAT. The 

Immigration Judge concluded that the evidence did not show Ahmed was more 

likely than not to be tortured if removed to Bangladesh, and thus denied his 

application for relief from removal under the CAT.

Ahmed appealed the Immigration Judge’s decision to the Board of 

Immigration Appeals. The Board agreed with the Immigration Judge’s conclusion 

that Ahmed did not meet his burden to show that he was more likely than not to 

suffer torture if removed, and dismissed the appeal. Ahmed then filed his first 

petition for review in this Court. While that appeal was pending, Ahmed filed a 

motion to reopen with the Board, claiming new evidence. The Board denied the 

motion to reopen, noting that Ahmed failed to explain why the newly-proffered 

evidence was unavailable at the time of his hearing, and finding that the new 

evidence was not likely to alter the Immigration Judge’s decision. Ahmed petitioned 

this Court for review of the Board’s denial of his motion to reopen, and we 

consolidated that petition with his first petition.

II. Discussion

At the outset, we note that the Supreme Court’s recent decision in Nasrallah v. 

Barr, 140 S. Ct. 1683 (2020) directly informs the scope of our review. Before 

Nasrallah, several circuits, including this one, held that 8 U.S.C. § 1252(a)(2)(C), 

sometimes known as the “criminal alien bar,” applied to petitions for review of 

orders denying deferral under the CAT. See, e.g., Gallimore v. Holder, 715 F.3d 

687, 690 (8th Cir. 2013). The criminal alien bar 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 covered offense, including any aggravated felony. 
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8 U.S.C. §§ 1252(a)(2)(C); 1227(a)(2)(A)(iii). Accordingly, under this Circuit’s preNasrallah precedent, our jurisdiction to review orders denying deferral under the 

CAT was limited to “constitutional claims or questions of law.” Cherichel v. 

Holder, 591 F.3d 1002, 1009 (8th Cir. 2010) (quoting 8 U.S.C. § 1252(a)(2)(D)).

In Nasrallah, the Supreme Court held that an order denying deferral under 

the CAT is not a “final order of removal,” and, therefore, the criminal alien bar does 

not preclude judicial review of a noncitizen’s factual challenges to such an

order.140 S. Ct. at 1694. Thus, we have jurisdiction to consider Ahmed’s factual 

challenges, as well as any colorable constitutional claims or questions of law raised 

by his petitions.

The Court reviews Ahmed’s factual challenges under the substantial-evidence 

standard. Nasrallah, 140 S. Ct. at 1692. This review is “highly deferential.” Id. “The 

agency’s ‘findings of fact are conclusive unless any reasonable adjudicator would 

be compelled to conclude to the contrary.’” Id. (quoting 8 U.S.C. § 1252(b)(4)(B)); 

see also Ngugi v. Lynch, 826 F.3d 1132, 1136 (8th Cir. 2016) (“Under the 

substantial evidence standard, the agency’s findings of fact must be upheld unless 

the alien demonstrates that the evidence he presented not only supports a contrary 

conclusion but compels it.”) (emphasis in original). We review questions of law de 

novo. 

Because the parties completed their briefing before the Supreme Court 

decided Nasrallah, Ahmed does not directly challenge the agency’s factual 

determinations. However, Ahmed does argue that the Board and Immigration Judge 

committed legal error by giving inadequate weight to certain evidence. The Court 

will construe Ahmed’s weight-of-the-evidence arguments as factual challenges and 

review them under the substantial-evidence standard. But we first address Ahmed’s 

claims of legal error, which we review de novo. 
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A. Legal Challenges

Ahmed argues that the Board erred in adopting the Immigration Judge’s 

findings and analysis. First, the Board does not commit legal error simply by 

adopting the factual findings or reasoning of the Immigration Judge. See Garcia v. 

Holder, 746 F.3d 869, 872 (8th Cir. 2014). Rather, in a case “where ‘the [Board] 

essentially adopted the [Immigration Judge’s] opinion while adding some of its own 

reasoning, we review both decisions.’” Id. (quoting Osonowo v. Mukasey, 521 F.3d 

922, 926–27 (8th Cir. 2008)). Second, Ahmed has not identified any error of law 

made by the Board or the Immigration Judge. The record shows that both the 

Immigration Judge and the Board set forth the correct legal standard for 

consideration of an application for deferral of removal under the CAT. Both 

correctly stated that Ahmed bore the burden to show that it was more likely than not 

he would be subject to torture if removed to Bangladesh. See 8 C.F.R. § 

1208.16(c)(2). The Immigration Judge noted his responsibility to consider all 

relevant evidence, and explicitly stated that he considered all evidence in the record 

in its entirety, regardless of whether it is specifically mentioned in the decision. The 

Board correctly stated the elements of “torture” as set out in 8 C.F.R. § 1208.18(a). 

In sum, we find no legal error in the Board’s adoption of the Immigration Judge’s 

findings or analysis.

Ahmed next argues that the Board erred as a matter of law by failing to 

recognize that torture under the CAT may include acts in which the government is 

not an active participant. We disagree. The Board correctly stated the definition of 

torture, noting that it may include acts taken “with the consent or acquiescence ... of 

a public official,” and citing the relevant regulation, 8 C.F.R. § 1208.18(a). See 

Hanan v. Mukasey, 519 F.3d 760, 764 (8th Cir. 2008) (rejecting claim that the Board 

“used the incorrect definition of acquiescence, especially when it cited to the 

provision containing the correct definition.”). Accordingly, we find no legal error in 

the Board’s application of the government acquiescence standard. Ahmed’s 

contention that certain evidence shows the Bangladeshi government actually does 

acquiesce in torture is a factual challenge, which we address separately below.
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Ahmed also argues that the Board and Immigration Judge erred by failing to 

consider all of the evidence in the record. “An allegation of wholesale failure to 

consider evidence” is a constitutional challenge that implicates due process. Hanan, 

519 F.3d at 764. The record does not support Ahmed’s claim that the Board or 

Immigration Judge failed to consider his submissions. As noted, the Immigration 

Judge explicitly stated that he considered all evidence in the record, whether or not 

mentioned in his decision. Further, “[t]he [Board] is entitled to a presumption of 

regularity,” and “is not required by the Constitution to mention every piece of 

evidence that it considered.” Sharif v. Barr, 965 F.3d 612, 624 (8th Cir. 2020). 

Finally, both the Board and Immigration Judge specifically mentioned the country 

reports containing the evidence Ahmed claims the judge ignored. Thus, we reject 

Ahmed’s due process claim that the agency failed to consider all relevant evidence. 

B. Factual Challenges

Ahmed contends that the Board erred by concluding that he failed to meet his 

burden of proof. We construe this as a factual challenge to the Board’s determination 

that Ahmed failed to show he was “more likely than not” to be tortured if removed 

to Bangladesh. 8 C.F.R. § 1208.16(c)(2). 

The Board determined that Ahmed did not meet his burden to show that the 

Bangladeshi government acquiesces in torture. For an act to constitute “torture” 

under the CAT, it must be done “by or at the instigation of or with the consent or 

acquiescence of a public official or other person acting in an official capacity.” 8 

C.F.R. § 1208.18(a)(1) (emphasis added). Ahmed challenges the Board’s 

determination in two respects. First, Ahmed argues that the Board did not give 

sufficient weight to evidence in the country reports that some community leaders 

used extrajudicial fatwas to punish individuals for perceived moral transgressions. 

Second, Ahmed argues that the Board did not give sufficient weight to evidence of
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the government’s involvement in displacement of religious minorities, including 

Christians, through land ownership disputes and forced evictions.

We find that substantial evidence supports the Board’s determination that 

Ahmed failed to show that the Bangladeshi government acquiesces in torture. The 

record indicates that the Bangladeshi government continues to take action against 

religious extremists who commit violence. The country reports state that the 

extrajudicial action taken by some community leaders is contrary to the express 

orders of the Bangladeshi government. That the government has been less than 

completely successful at curbing the violence does not mean it has acquiesced to 

torture. “A government does not acquiesce in the torture of its citizens merely 

because it is aware of torture but powerless to stop it, but it does cross the line into 

acquiescence when it shows willful blindness toward the torture of citizens by third 

parties.” Garcia v. Holder, 746 F.3d 869, 873 (8th Cir. 2014).

Likewise, substantial evidence supports the Board’s determination that 

Ahmed’s evidence of forcible land evictions does not demonstrate the government’s 

acquiescence in torture. The Board found that the evidence of forcible land evictions 

did not demonstrate government-sponsored torture because the acts were not shown 

to have been inflicted for a proscribed purpose. We therefore review the Board’s 

proscribed-purpose findings. 

An act does not constitute torture unless it is for a “proscribed purpose.” 

Cherichel, 591 F.3d at 1008. Specifically, “[t]orture does not include pain or 

suffering arising only from, inherent in or incidental to lawful sanctions.” 8 C.F.R.

§ 1208.18(a)(3). “Lawful sanctions include judicially imposed sanctions and other 

enforcement actions authorized by law.” Id. The record includes several reports by 

religious minorities, including Christians, of property and land ownership disputes 

and forced evictions, including by the government. But no evidence in the record 

shows that these evictions were for a proscribed purpose. It is certainly not selfevident that every forced eviction arising from a property dispute constitutes illicit 

government violence, much less torture. Further, the record indicates that some of
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these property disputes stem from ineffective judicial and land registry systems 

rather than government policy disfavoring religious or ethnic minorities. In sum, 

substantial evidence supports the Board’s determination that these forced evictions 

do not demonstrate government-sponsored torture. See Bartolo-Diego v. Gonzales, 

490 F.3d 1024, 1029 (8th Cir. 2007) (“Even though the government's failure to 

investigate and punish [those] who break the law has resulted in human rights 

abuses, the failure is due more to a weak and inefficient judicial system than to 

government acquiescence or approval.”).

Looking to the record as a whole, we find that “[a] reasonable adjudicator 

could have found the evidence insufficient to establish a likelihood of torture.” 

Ademo v. Lynch, 795 F.3d 823, 831 (8th Cir. 2015). As noted above, the Bangladeshi 

government continues its efforts to combat violence against religious minorities by 

Islamic extremists. The Bangladeshi constitution officially provides for religious 

freedom for Christians, and the record shows that approximately 800,000 Christians 

live in Bangladesh, with the majority identifying as Roman Catholic. Further, the 

Immigration Judge and the Board properly found that Ahmed’s testimony regarding 

his kidnapping and torture at the hands of Islamic extremists did not demonstrate 

government acquiescence in torture, because he admits that the crime was never 

reported to the police. See Fuentes-Erazo v. Sessions, 848 F.3d 847, 854 (8th Cir. 

2017) (where violent acts were not reported to the authorities, a “reasonable 

adjudicator would not be compelled to find” that the acts occurred “with the 

imprimatur or acquiescence” of the government). Accordingly, we reject Ahmed’s 

factual challenges to the Board’s determination, and deny his first petition for 

review.

C. Motion to Reopen

We now turn to Ahmed’s petition to review the Board’s denial of his motion 

to reopen. We have jurisdiction to review denial of a motion to reopen. Kucana v. 

Holder, 558 U.S. 233, 253 (2010). The Board has “considerable discretion” to grant 

or deny a motion to reopen. Lee v. Holder, 765 F.3d 851, 855 (8th Cir. 2014).
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Accordingly, we review the Board’s decision to deny the motion to reopen for abuse 

of discretion. Strato v. Ashcroft, 388 F.3d 651, 654 (8th Cir. 2004). The Board 

“abuses its discretion only when its decision ‘is without rational explanation, departs 

from established policies, invidiously discriminates against a particular race or 

group, or where the agency fails to consider all factors presented by the alien or 

distorts important aspects of the claim.’” Lee, 765 F.3d at 855 (quoting Esenwah v. 

Ashcroft, 378 F.3d 763, 765 (8th Cir. 2004)). 

The Board may deny a motion to reopen on the basis of new evidence on any 

of three grounds: “failure to establish a prima facie case for the relief sought, failure 

to introduce [with the motion to reopen] previously unavailable, material evidence, 

and a determination that even if these requirements were satisfied, the movant would 

not be entitled to the discretionary grant of relief sought.” Id. Here, the Board found 

that Ahmed failed to show the newly-proffered evidence was not available at the 

time of his hearing, and further found that it was unlikely the new evidence would 

have altered the Immigration Judge’s decision. 

“A motion to reopen proceedings shall not be granted unless it appears to the 

Board that evidence sought to be offered is material and was not available and could 

not have been discovered or presented at the former hearing.” 8 C.F.R. § 1003.2. 

Ahmed offers nothing, beyond conclusory statements, to support his claim that the 

newly-offered evidence was not available at the time of his hearing in 2018. Thus, 

we find nothing in the record to support Ahmed’s claim that the Board abused its 

discretion in denying his motion to reopen. As noted above, failure to support a 

motion to reopen with evidence that was not available at the time of the agency 

hearing is sufficient reason for the Board to deny a motion to reopen. Lee, 765 F.3d 

at 855. Further, the Board determined that the new evidence—consisting of a 

statement from a Bangladeshi political party (or, a member of parliament, as 

Ahmed’s counsel conceded at oral argument) regarding conditions for Christians 

who have converted from other religions—was unlikely to alter the Immigration 

Judge’s decision. We find no abuse of discretion in this determination. The 

Immigration Judge found that the Bangladeshi government does not acquiesce in the
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mistreatment of Christians. It was well within the Board’s board discretion to 

conclude that the proffered evidence would not overturn that finding. We deny 

Ahmed’s petition to review the Board’s denial of his motion to reopen. 

III. Conclusion

Accordingly, we deny both petitions for review.

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