In the

United States Court of Appeals

For the Seventh Circuit

No. 09-2288

ADNAN I. ISSAQ,

Petitioner,

v.

ERIC H. HOLDER, JR., Attorney General

of the United States,

Respondent.

Petition for Review from an Order

of the Board of Immigration Appeals.

No. A 075 056 464

ARGUED DECEMBER 4, 2009—DECIDED AUGUST 17, 2010

Before POSNER, RIPPLE, and WOOD, Circuit Judges.

WOOD, Circuit Judge. In 1997, Adnan Issaq, a citizen

of Iraq, moved with his parents and three siblings from

Syria to the United States, where they were admitted

as refugees. Issaq and his family are Christians of

Assyrian descent. His father, a native of Iraq, and his

mother, a Syrian, were married in Syria but settled in

Baghdad, Iraq, where Issaq was born in 1978. Fearing
2 No. 09-2288

religious persecution, Issaq’s parents took the family to

Syria in 1991. There they remained through late 1997, until

their application for refugee status was approved and

they came to the United States. Once here, the family

settled in DuPage County, Illinois, just west of Chicago.

Issaq became a permanent resident of the United States

in 2001.

Unfortunately, Issaq developed a drug habit, which

led to other crimes and ultimately to the removal proceedings now before us. Issaq was charged with committing a number of residential burglaries near his home

in late 2005. He pleaded guilty to one count, and in

March 2007 an Illinois court sentenced him to 180

days in prison and two years of probation, including

inpatient substance-abuse treatment. In May 2007, after

Issaq had served his prison term, the DuPage County

Jail released him to a rehabilitation program called the

Treatment Alternatives for Safe Communities. Issaq soon

blew the chance he had been given. Two months into

the program, Treatment Alternatives expelled him for

using drugs and for arranging with others to bring

drugs into the treatment facility. Issaq’s expulsion

violated the terms of his probation, and a warrant

issued for his arrest. He remained on the loose until

December 2007, when a local police officer pulled his

car over after a traffic violation. Issaq gave the officer

his brother’s driver’s license and attempted to flee when

he was asked to follow the officer to the police station.

This led to new charges, to which Issaq pleaded guilty.

The court sentenced him to five years’ imprisonment as

the penalty for violating his probation for the residential
No. 09-2288 3

burglary, and it imposed an additional year, to run concurrently, for obstruction of justice in connection with

the new conviction for the traffic violation.

I

When Issaq’s problems with the law came to the attention of the Department of Homeland Security (“DHS”),

it initiated proceedings in which it charged that Issaq

was removable as an alien convicted of an aggravated

felony. 8 U.S.C. § 1227(a)(2)(A)(iii). At an October 2008

hearing before an Immigration Judge (“IJ”), Issaq conceded that residential burglary, a Class 1 felony in Illinois,

720 ILCS 5/19-3(b), is an “aggravated felony” within the

meaning of the Immigration and Nationality Act (“INA”),

see 8 U.S.C. §§ 1101(a)(43)(G) and 1227(a)(2)(A)(iii). A

month later, Issaq applied for asylum, withholding of

removal, and relief under the Convention Against Torture

(“CAT”). In his application, Issaq asserted that because

of his identity as an Assyrian Christian, he faced lifethreatening persecution and torture at the hands of

Muslim extremists if he were returned to Iraq.

The IJ held a hearing on Issaq’s case on December 17,

2008. The judge began by confirming that Issaq was

ineligible for asylum because his residential burglary

offense was an aggravated felony. Next, the judge

found that Issaq’s crime was “particularly serious” (another term of art under the INA), and thus he was

barred from withholding of removal by 8 U.S.C.

§ 1231(b)(3)(B)(ii). This left just one question: whether
4 No. 09-2288

Issaq was entitled to relief in the form of withholding of

removal under the CAT.

Issaq testified that he believed that he would be

tortured in Iraq on account of his religion. His belief

was based solely on his membership in the group of

Assyrian Christians; he offered no reason why he in

particular would be singled out. Cross-examination

revealed that he was unaware of the fact that there are

approximately a million Christians currently living in

Iraq. Issaq’s father, Isho Shamoon, testified that the

entire extended family has now left Iraq. Shamoon

shared the opinion that his son would be killed if he

were returned. Radicals, he stated, had been asking

about the family, and a former neighbor warned him

that “they” were looking for Shamoon. This was enough

to endanger the son as well, Shamoon thought. Issaq’s

mother, Leila Youkhana, also testified. She mentioned

pressure on Christian women in Iraq to adopt Muslim

dress, and she too predicted that Issaq would be killed

if he were sent back.

The IJ found all of this testimony credible but insufficient to warrant relief under the CAT. Iraq, the judge

observed, has undergone “vast changes” since 1991, when

Issaq’s family left the country. Given the number of

Christians, and even Christians of Assyrian ethnicity,

the court found no basis for the family’s dire predictions

of death or torture. Indeed, the court found no evidence

apart from these opinions about the likelihood of torture. He acknowledged the fact that there is social friction and violence in Iraq today, but that alone was not
No. 09-2288 5

enough to show that Issaq would be tortured by a public

official, or that the government would condone his torture

by others. Notably, however, the IJ had nothing to say

about an International Religious Freedom Report that

Issaq had tendered in support of his petition on the day

of the hearing. See http://www.state.gov/g/drl/rls/ irf/2008/

108483.htm (last visited August 13, 2010). That Report

catalogued several incidents in Iraq of abuse against

Assyrian Christians. It also noted, under the heading

“Abuses by Rebel or Foreign Forces or Terrorist Organizations” that

[m]any individuals from various religious groups

were targeted because of their religious identity or

secular leanings. Acts committed against them included not only harassment and intimidation but

also kidnapping and murder. The general lawlessness that permitted criminal gangs, terrorists, and

insurgents to victimize citizens with impunity affected persons of all ethnicities and religious groups.

The magnitude of sectarian attacks, while difficult

to track, appeared to decline during the reporting

period. While such incidents were progressively

fewer, Shi’a in Sunni-dominated neighborhoods,

Sunnis in Shi’a-dominated neighborhoods, and religious minorities in both Sunni- and Shi’a-dominated

neighborhoods reported receiving death threat letters

demanding that they leave their homes, and in many

cases individuals either complied or were killed.

The IJ concluded by denying Issaq’s request for relief

under the CAT and ordering him removed to Iraq.
6 No. 09-2288

The Board of Immigration Appeals (“Board”) found that

the IJ had “adequately and correctly addressed the

issues presented.” In response to Issaq’s objection to the

finding that he was ineligible for withholding of removal,

the Board noted that once a crime is determined to be

particularly serious, there is no need for an additional

finding that the person is a danger to the community.

Even if he were not ineligible for withholding, the

Board continued, he could not prevail on the merits

because the record did not establish that his life or

freedom would be threatened in Iraq on the ground of

his race, religion, nationality, membership in a particular social group, or political opinion. See 8 U.S.C.

§ 1231(b)(3)(A). Nor did Issaq prove that it was

more likely than not that he would be tortured for any

cognizable reason if removed to Iraq. See 8 C.F.R.

§ 1208.16(c). Finally, the Board rejected without explanation Issaq’s complaint that the IJ erred by failing to consider the International Religious Freedom Report in

his analysis. Overall, it thought, he had received a fair

hearing and an acceptable explanation. Acting through

a single member, the Board thus dismissed his appeal.

II

In his petition for review in this court, Issaq raises

two arguments: first, that the Board erred when it characterized his crime as “particularly serious” and for that

reason decided that he was ineligible for withholding of

removal, and second, that it committed legal error when

it determined that he could not qualify for relief under
No. 09-2288 7

the CAT. Citing 8 U.S.C. § 1252(a)(2)(C), the government

responds that this court lacks jurisdiction to adjudicate

the petition. It acknowledges that we would be authorized to review the Board’s decision if Issaq’s petition

raised a constitutional or other question of law, see 8

U.S.C. § 1252(a)(2)(D), but it asserts that his petition fails

to do so.

A

We consider first Issaq’s effort to qualify for withholding of removal. His initial problem arises because

of the provision of the INA depriving the courts of jurisdiction to review any part of a removal order based on

a finding that the alien is an aggravated felon:

Notwithstanding any other provision of law (statutory

or nonstatutory) . . . and except as provided in subparagraph (D), 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)

[which includes aggravated felonies] . . . of this

title . . . .

§ 1252(a)(2)(C). Notwithstanding the superficially absolute nature of this language (apart from the exception

for subparagraph (D)), we have decided that it still

permits us to decide whether the person before the court

is the one who committed the crime, and whether the

crime was properly characterized as an aggravated

felony. E.g., Guerrero-Perez v. INS, 242 F.3d 727, 730 (7th

Cir. 2001).
8 No. 09-2288

More importantly for Issaq’s petition, subparagraph (D)

carves out an exception to the jurisdictional bar for

“constitutional claims or questions of law.” 8 U.S.C.

§ 1252(a)(2)(D). In applying this part of the statute, it

is important to distinguish between legal claims that

may be unlikely to prevail from claims that are so

lacking in substance that they should not be adjudicated

at all. In our view, Issaq’s arguments fall in the former

category, not the latter.

The first problem we must address, however, is

whether Issaq’s legal arguments are beside the point,

because the Board offered an alternative, fact-based

reason for denying relief. In its order, the Board said:

We further find that the respondent has not established his eligibility for withholding of removal even

if he was not barred from consideration. He has not

established that his life or freedom would be threatened in Iraq, a country he left 18 years ago, because

of his race, religion, nationality, membership in a

particular social group, or political opinion.

Issaq’s only argument about this part of the case is that

the Board’s decision rested on a flawed hearing before

the IJ. He phrases this as a due process argument, although it would be better cast as an argument that he

did not receive the fair hearing to which he is entitled

under the statute. See Khan v. Mukasey, 517 F.3d 513, 518

(7th Cir. 2008). The key problem, as he sees it, was the

IJ’s failure to consider the International Religious

Freedom Report.

Issaq has continued in his petition for review to pursue this argument. Although his brief does not make it
No. 09-2288 9

clear whether he wishes to make this point with respect

to both withholding and the CAT, or just the CAT, the

Report is pertinent to both (setting aside the issue

whether his crime was “particularly serious”), and so we

will give him the benefit of the doubt and consider it

for both theories. In our view, his contention that the

record on which the IJ and Board relied was deficient

is enough to support a legal argument with respect to

the Board’s alternate holding. It is troublesome that the

IJ made no mention of the Report. The Board seems to

have relied on a presumption of procedural regularity

and to have assumed that the IJ read and took account of the Report, but we have no idea whether this

is so. Normally, we require the Board to discuss the

key evidence that the parties have presented. See, e.g.,

Gebreeyesus v. Gonzales, 482 F.3d 952, 954 (7th Cir. 2007)

(citing Kay v. Ashcroft, 387 F.3d 664, 674 (7th Cir. 2004), and

Mansour v. INS, 230 F.3d 902, 908 (7th Cir. 2000)). But

Issaq cannot obtain a remand on this ground unless

he can show prejudice from any violation that occurred.

See Bayo v. Napolitano, 593 F.3d 495, 506 (7th Cir. 2010)

(en banc). The excerpt of the Report that we set out

above indicates that the problem of violence is pervasive

throughout Iraq; nothing suggests that every Assyrian

Christian faces a better than even chance of being

tortured or killed, nor is there anything in it to suggest

that Issaq faces a particular risk. Although the question seems close to us, we conclude that the Report

is not enough on its own to support a finding that any

persecution Issaq would face would occur at the hands

of government agents, or would otherwise be condoned by the government.
10 No. 09-2288

In case we are wrong about that, and the evidence

including the Report would have supported withholding,

we think it prudent to turn to Issaq’s other argument

for this relief. The INA states that “an alien who has

been convicted of an aggravated felony (or felonies) for

which the alien has been sentenced to an aggregate

term of imprisonment of at least 5 years shall be considered to have committed a particularly serious crime.”

8 U.S.C. § 1231(b)(3)(B), final paragraph. It adds that

the Attorney General is also entitled to determine that,

“notwithstanding the length of sentence imposed, an

alien has been convicted of a particularly serious crime.”

Id. The question Issaq is raising is how to interpret the

phrase “aggregate term of imprisonment.” Whether an

agency correctly interprets a statute is a question of

law. See Huang v. Mukasey, 534 F.3d 618, 620 (7th Cir.

2008). Issaq argues that the term refers only to the sentence that appears in the court’s initial judgment. With

that in mind, he points out that his initial sentence for

the residential burglary was 180 days’ imprisonment

plus two years’ probation; it was not until he violated

the terms of his probation that the sentence was extended by another five years. Focusing exclusively on

the initial sentence, he draws the conclusion that his

crime was not a “particularly serious” one.

Issaq’s position, however, disregards the use of the

word “aggregate” in § 1231(b)(3)(B)’s final paragraph. If

Congress had meant to look solely to the initial term of

imprisonment, it would have used different language.

Instead, it said “aggregate term,” a phrase that rules out
No. 09-2288 11

such a narrow reading. We conclude that all periods of

imprisonment associated with a particular conviction

must be counted toward the five years specified in the

statute. Issaq’s residential burglary crime thus led to

an aggregate of more than five years’ imprisonment

and was a “particularly serious” felony for purposes of

§ 1231(b)(3)(B). This makes it unnecessary for us to

decide whether the Attorney General abused his discretion in characterizing the crime as “particularly serious” notwithstanding the length of the sentence.

The government complains that Issaq did not present

his argument about the meaning of the statute to the

Board, and thus (it says) our jurisdiction is barred on a

different ground—failure to exhaust. It is true that an

alien must exhaust “all administrative remedies available to the alien as of right,” 8 U.S.C. § 1252(d)(1), and

that this includes the obligation first to present to the

Board any arguments that lie within its power to address.

Ghaffar v. Mukasey, 551 F.3d 651, 655 (7th Cir. 2008). This

is not, however, a jurisdictional rule in the strict sense

that the Supreme Court has emphasized we must follow.

See Marin-Rodriguez v. Holder, 2010 WL 2757321 (7th Cir.

July 14, 2010) (No. 09-3105) (discussing Morrison v. Nat’l

Austl. Bank Ltd., 130 S. Ct. 2869 (2010); Reed Elsevier, Inc. v.

Muchnick, 130 S. Ct. 1237 (2010); and Union Pac. R.R. v.

Bhd. of Locomotive Eng’rs, 130 S. Ct. 584 (2009). It is a caseprocessing rule that limits the arguments available to

an alien in this court when those arguments have not

been raised properly at the agency level. Korsunskiy v.

Gonzales, 461 F.3d 847, 849-50 (7th Cir. 2006).
12 No. 09-2288

Before the IJ and the Board, Issaq stressed his argument that disentitlement to withholding of removal

should be conditioned on two findings, not just one: both

the commission of a particularly serious crime and a

finding that the person was a danger to the community.

See § 1231(b)(3)(B)(ii) (no withholding when “the alien,

having been convicted by final judgment of a particularly serious crime is a danger to the community of the

United States”). In addition, however, he did raise the

point about his initial term of imprisonment. We are not

inclined to find failure to exhaust, particularly as there

is some value in clarifying the scope of the statute.

B

Issaq also argued that he was entitled to relief under the

CAT. Once again, the government argues that we have

no jurisdiction to consider his argument, this time because Issaq was convicted of a “particularly serious”

crime and also because of the Board’s finding that his

case fails on the facts. In the end, we agree with the

government that his case has no merit, but we reach

that conclusion by a somewhat different path.

Although petitions for withholding of removal and

petitions for relief under the CAT are treated very similarly, the regulations governing the CAT add one additional form of relief for a petitioner:

Protection under the Convention Against Torture

will be granted either in the form of withholding of

removal or in the form of deferral of removal. 
No. 09-2288 13

8 C.F.R. § 1208.16(c)(4) (emphasis added). Section 1208.17

provides more details about the deferral of removal

process:

An alien who: has been ordered removed; has been

found under § 1208.16(c)(3) to be entitled to protection under the Convention Against Torture; and is

subject to the provisions for mandatory denial of

withholding of removal under § 1208.16(d)(2) or (d)(3)

[which include commission of a particularly serious

crime], shall be granted deferral of removal to the

country where he or she is more likely than not to

be tortured.

8 C.F.R. § 1208.17(a). Additional provisions of the regulation make it clear that deferral of removal is at least

potentially a more restricted form of relief than withholding. For example, deferral does not confer on the

alien any lawful or permanent immigration status;

deferral will not necessarily result in the alien being

released from the custody if the alien is subject to

such custody; and deferral does not protect against removal to a different country from the one in which

the alien is likely to be tortured. § 1208.17(b).

This court has struggled with the question whether

judicial review of orders denying relief under the CAT

based on the commission of an aggravated felony is

jurisdictionally barred. Compare Tunis v. Gonzales, 447

F.3d 547, 549 (7th Cir. 2006) (stating that an aggravated

felony bars review except under the CAT), with Petrov

v. Gonzales, 464 F.3d 800, 802 (7th Cir. 2006) (holding

that even a CAT claim is barred from review if it results
14 No. 09-2288

in a final order of removal that rests on a finding that

an aggravated felony was committed). In Petrov, we

pointed out that Tunis addressed only the effect of

§ 1252(a)(2)(B), which prohibits review of decisions committed to the discretion of the Attorney General or the

Secretary of Homeland Security, but that it was necessary also to take into account the effect of § 1252(a)(2)(C),

which bars review of final orders of removal against

certain criminal aliens.

The Supreme Court’s decision in Negusie v. Holder, 129

S. Ct. 1159 (2009), underscores the need for precision

in evaluating the many different kinds of claims that

can arise under the immigration laws. There the Court

was concerned with the so-called “persecutor bar”

that applies to aliens who have persecuted others

on a prohibited basis. See 8 U.S.C. § 1101(a)(42). The

persecutor bar applies to those seeking asylum or withholding of removal, but “[i]t does not disqualify an

alien from receiving a temporary deferral of removal

under the Convention Against Torture . . . .” 129 S. Ct. at

1162; see also id. at 1178 n.1 (Thomas, J., dissenting)

(discussing the remedy of deferral of removal).

This raises the question whether a decision under the

CAT to deny even deferral of removal falls within the

jurisdiction-stripping provisions of either § 1252(a)(2)(B)

or § 1252(a)(2)(C). In our view, the answer is no. Once

an alien succeeds in proving the factual prerequisites

for relief under the CAT, we understand Negusie to hold

that some kind of remedy (complete with judicial review)

is available, even for persons such as persecutors, whose
No. 09-2288 15

claims for asylum or withholding of removal are barred

and unreviewable. Consistently with Tunis, then, relief

under the CAT is not barred by the ban on reviewing

discretionary decisions imposed by § 1252(a)(2)(B).

No one argued in Petrov that the remedy of deferral of

removal requires a distinct analysis, and so we cannot

take Petrov as the last word on that point. And indeed,

if an alien is attempting to challenge only a final order

of removal, as opposed to a deferral of removal, then

there is nothing to criticize in the holding of Petrov. If,

however, the alien also sought and might have been

entitled to the inherently non-final remedy of deferral

of removal, then § 1252(a)(2)(C) (which speaks only of

a final order) appears to be inapplicable.

This possibility appears to be of little help for Issaq,

because nothing in the record suggests that he was

seeking a deferral of removal. He relied instead on the

argument that his due process rights were violated by

the IJ’s failure to read and take into account the facts in

the International Religious Freedom Report. As we noted

earlier, to the extent that the IJ indeed overlooked this

evidence, there is a potential problem. But it is not one

that allows Issaq to prevail in the end, because he

cannot show how he was prejudiced by the IJ’s error.

Even taking the Report into account, the link to governmental action is too weak, and the evidence showing

that Issaq would be tortured or killed is too conclusory. 

For these reasons, the petition for review is DENIED.
16 No. 09-2288

RIPPLE, Circuit Judge, concurring. I join in the judgment

of the court, and its fine opinion with the exception of

its jurisdictional discussion pertaining to claims for

deferral of removal under the Convention Against Torture. I understand the court to take the view that, in

spite of 8 U.S.C. § 1252(a)(2)(C), which bars review of

final orders of removal against certain criminal aliens,

this court does have jurisdiction to review claims regarding the denial of deferral of removal made by such

aliens. Our jurisdiction extends, according to the majority

opinion, not only to those petitions raising constitutional

claims and questions of law, see id. § 1252(a)(2)(D),

but also to claims by a covered alien that the Board’s

determination regarding the likelihood of torture upon

repatriation is not supported by substantial evidence,

see Maj. op. at 14-15. 

As the court acknowledges, id. at 15, this question

is not squarely presented in the case before us and, therefore, need not be decided at this time. Furthermore, I find

the court’s reliance on Negusie v. Holder, 129 S. Ct. 1159

(2009), Petrov v. Gonzales, 464 F.3d 800 (7th Cir. 2006), and

Tunis v. Gonzales, 447 F.3d 547 (7th Cir. 2006), to be a

relatively thin reed upon which to base the conclusion

regarding our jurisdiction that the court reaches today.

Moreover, although one of our sister circuits has

indeed reached the same result on an entirely different

basis, see Lemus-Galvan v. Mukasey, 518 F.3d 1081, 1083

(9th Cir. 2008), the court neither discusses nor criticizes

that approach. Nor does it discuss the opposing view.

See Saintha v. Mukasey, 516 F.3d 243, 248-49 (4th Cir. 2008)
No. 09-2288 17

(dismissing, for lack of jurisdiction, a petition seeking

review of a decision denying deferral of removal after

concluding that § 1252(a)(2)(C) applied to the deferral

claim and that the exception for constitutional claims

or questions of law did not apply).

I think the better course is to follow the approach of

some of our other sister circuits and reserve judgment

until the issue is squarely presented and fully briefed

and argued before us. See De La Rosa v. Holder, 598 F.3d

103, 107 (2d Cir. 2010) (noting the Ninth Circuit position but expressly declining to decide the issue because

the petition only presented a question of law concerning

eligibility for deferral); Cherichel v. Holder, 591 F.3d 1002,

1009, 1017 (8th Cir. 2010) (noting that the jurisdictionstripping provision generally applies to CAT claims, but

deciding the case under the question of law exception

without any discussion of further exemptions to the

criminal alien jurisdiction-stripping provision that would

preserve review of such aliens’ deferral claims).

8-17-10