NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

File Name: 19a0379n.06

Case No. 18-3877

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

LAITH FRANCIS,

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: BATCHELDER, GRIFFIN, and DONALD; Circuit Judges.

DONALD, J., delivered the opinion of the court in which GRIFFIN, J., joined, and 

BATCHELDER, J., joined in the result.

BERNICE BOUIE DONALD, Circuit Judge. Petitioner Laith Francis (“Francis”), a 

native and citizen of Iraq, petitions for review of the Board of Immigration Appeals’ (“BIA”) 

dismissal of his appeal from the Immigration Judge’s denial of Francis’ application for deferral of 

removal under the Convention Against Torture (“CAT”). In support of his petition, Francis 

contends that he is entitled to Deferral of Removal because if he were repatriated to Iraq, he would 

be targeted as a Chaldean Christian who had been “Americanized”. For the foregoing reasons, we 

DISMISS part and DENY in part.

I. Background

Francis entered the United States on February 27, 1974, at the age of eleven with his father 

and three siblings as a conditional refugee under former 8 U.S.C. § 1153(a)(7). AR 573-74. When 
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he arrived, Francis received permanent resident status but never gained full citizenship. In 1992,

Immigration and Naturalization Service (“INS”) filed and served Francis an Order to Show Cause,

charging him as deportable under former 8 U.S.C. § 1251(a)(2)(B)(i),1as an alien who, after entry, 

was convicted of a controlled substance violation, and under former 8 U.S.C. § 1251(a)(2)(A)(iii),

2

as an alien convicted of an aggravated felony. AR 2711-13. In his ensuing proceedings before an 

Immigration Judge, Francis admitted the factual allegations lodged against him and conceded both 

charges of deportability. After several proceedings in which Francis sought waiver of deportability 

under INA § 212(c) and CAT protection, Francis conceded he was not eligible for § 212(c) relief,

was denied CAT protection on August 21, 2003 and ordered removed to Iraq. AR 2138-43. 

Francis did not appeal this decision. AR 2080. Despite his ordered removal, Francis was not 

deported and has continued to live in the United States.

In 2017, Francis filed a motion to reopen his case based on changed country conditions in 

Iraq, which the Immigration Judge granted. AR 2076-88. Francis subsequently filed an 

application for protection under CAT and an application for an INA § 212(c) discretionary waiver 

with the Immigration Judge. In support of their positions on the matter, both Francis and 

Department of Homeland Security (“DHS”) proffered documentary evidence, including 

declarations from individuals attesting to conditions in Iraq. DHS offered the declarations of 

Michael Rubin and Douglas Ollivant, while Francis offered the declarations of Mark Lattimer, 

Daniel Smith, Rebecca Heller, and Nina Shea. After an individual merits hearing, the Immigration 

Judge denied both applications in a written decision on February 23, 2018. AR 61-62. As to the 

§ 212(c) application, the Immigration Judge concluded that, though Francis is statutorily eligible 

 

1 Recodified as 8 U.S.C. § 1227(a)(2)(B)(i).

2 Recodified as 8 U.S.C. § 1227(a)(2)(A)(iii).
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for a § 212(c) waiver, he did not demonstrate that he merits a favorable exercise of the court’s 

discretion. AR 62. As to protection under CAT, the Immigration Judge concluded that, based on 

the totality of the evidence, Francis had not met his burden to establish that it is more likely than 

not he will be tortured by or with the acquiescence of the Iraqi government if deported to Iraq. AR 

62. In concluding such, the Immigration considered the declarations of each of the witnesses 

proffered. The Immigration Judge qualified each DHS witness as well as Francis’ witness Mark 

Lattimer as experts. However, because Francis did not proffer curriculum vitaes (“CVs”) for 

Daniel Smith or Rebecca Heller, the Immigration Judge did not qualify either as a witness, but 

instead reviewed the testimony of each as the declarations of fact witnesses. Nina Shea was also 

considered as a fact witness. After reviewing the testimony of each witness, the Immigration Judge 

found the declarations of DHS’s witnesses more convincing than that of Mark Lattimer and that 

those declarations were more persuasive than the declarations of the fact witnesses. AR 62. 

Francis appealed the Immigration Judge’s denial of his request for deferral of removal under CAT 

and the BIA affirmed in a written opinion on August 20, 2018.

3

 AR 2-3. 

Francis now petitions this Court pursuant to 8 U.S.C. § 1252(a)(1) and (a)(2)(C)-(D). 

Petitioner’s Brief at 2. Under § 1252(a)(2)(C) and (D), this Court’s jurisdiction is limited. Tran 

 

3 Francis’ brief before this Court consistently refers to “Withholding of Removal.” CAT “[p]rotection ... will be 

granted either in the form of withholding of removal or in the form of deferral of removal.” 8 C.F.R. § 1208.16(c)(4). 

“Ordinarily, an alien entitled to CAT protection receives relief in the form of withholding of removal.” Ventura-Reyes 

v. Lynch, 797 F.3d 348, 362 (6th Cir. 2015). But an alien will instead receive deferral of removal when: (1) the alien 

“has been ordered removed; [(2)] has been found under § 1208.16(c)(3) to be entitled to protection under the 

Convention Against Torture; and [(3)] is subject to the provisions for mandatory denial of withholding of removal 

under § 1208.16(d)(2) or (d)(3).” Id. (quoting 8 C.F.R. § 1208.17(a)). “Deferral of removal offers temporary relief, in 

that it may be terminated under specific circumstances by an IJ, by the Attorney General, or by the alien himself.” Id.

(citing 8 C.F.R. § 1208.17(d)-(f)). To satisfy the requirements under CAT (in the form of either withholding of removal 

or of deferral of removal), an applicant must establish that it is more likely than not that he would be tortured if 

returned to the proposed country of removal. 8 C.F.R. § 1208.16(c)(2); Berri v. Gonzales, 468 F.3d 390, 397 (6th Cir. 

2006). Though Francis seems to argue in favor of Withholding of Removal, the Immigration Judge, in granting 

reopening of Francis’ case, found that he was ineligible for Withholding of Removal because his convictions were 

“particularly serious crimes.” AR 2084-85. Francis did not challenge this determination, nor has he set forth any 

arguments to support a finding that his crimes were not “particularly serious.” Because the standard for withholding 

of removal and deferral of removal are the same, we construe Francis’ arguments to be in favor of deferral of removal.
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v. Gonzales, 447 F.3d 937, 940 (6th Cir. 2006). Subsection (C) “precludes courts from reviewing 

any ‘final order of removal against an alien who is removable by reason of having committed a 

[controlled substance offense].’” Id. (quoting 8 U.S.C. § 1252(a)(2)(C)). Subsection (D), 

however, permits us to “review . . . constitutional claims or questions of law.” 8 U.S.C. 

§ 1252(a)(2)(D); Tran, 447 F.3d at 940. We apply de novo review to questions of law. Sad v. INS, 

246 F.3d 811, 814 (6th Cir. 2001). Where the BIA issues a separate written opinion, we review 

that decision as the final agency determination. Khalili v. Holder, 557 F.3d 429, 435 (6th Cir.

2009). To the extent that the BIA adopted the Immigration Judge’s reasoning, we also review the 

Immigration Judge’s decision. Id. Here, although the BIA did not summarily adopt the 

Immigration Judge’s decision, it paraphrased the Immigration Judge’s findings and expressly 

concurred with his decision. Therefore, we review the decision of the Immigration Judge while 

considering any additional analysis by the BIA.

On appeal, Francis sets forth the following arguments: (1) his status as a Christian alone 

entitles him to deferral of removal pursuant to Yousif v. Lynch, 796 F.3d 622 (6th Cir. 2015); (2) the 

BIA committed legal error by reaching a conclusion regarding country conditions that is 

inconsistent with other recent BIA decisions; (3) the BIA erred by failing to treat the most recent 

U.S. State Department reports on Iraq as highly probative; (4) the BIA erred as a matter of law in 

concluding that the risk of torture does not meet the requirements for deferral of removal; and 

(5) the BIA violated his due process rights by not considering Rebecca Heller and Daniel Smith 

expert witnesses.4 

 

4 Francis additionally notes that he is raising a due process claim based on ineffective assistance of counsel; however, 

Francis does not include this in his statement of the issues nor does he develop this argument in his brief. Accordingly, 

we deem this argument forfeited. See Fed. R. App. P. 28(a)(5), (8) (an appellant’s brief “must contain ... a statement 

of the issues presented for review” and an argument containing the “appellant’s contentions and the reasons for them”).
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II. Analysis

We must first consider what type of analysis each claim requires; only if our analysis would 

require the resolution of a legal or constitutional question will the individual claim be subject to 

review. Ettienne v. Holder, 659 F.3d 513, 517 (6th Cir. 2011). Questions of law include matters

of statutory construction and whether the BIA applied the correct legal standards or rules of 

decision. See id. at 517. In contrast, whether the BIA correctly interpreted and weighed the 

evidence presented is a factual question that is not subject to review. See id. at 518 (explaining 

that “this court lacks jurisdiction over claims that can be evaluated only by engaging in head-tohead comparisons between the facts of the petitioner’s case and those of precedential decisions”);

see also Magasouba v. Mukasey, 543 F.3d 13, 16 (1st Cir. 2008) (concluding that consideration of 

“fact-based challenges to the withholding and CAT rulings,” such as “the immigration judge’s 

credibility assessments, evidentiary rulings, and other factual determinations” are beyond the 

court’s limited jurisdiction under § 1252(a)(2)(C)). 

Francis’ first, second, third and fourth arguments pertain to whether the BIA and 

Immigration Judge correctly determined the current country conditions of Iraq as they related to 

Chaldean Christians. Because the question of country conditions is a predominately factual 

determination and because Francis’ “‘claim relies on contesting these sorts of factual 

determinations rather than on statutory construction or a constitutional claim, we are without 

jurisdiction to review the BIA’s determination denying [him deferral of removal].’” Pepaj v. 

Mukasey, 509 F.3d 725, 728 (6th Cir. 2007) (quoting Almuhtaseb v. Gonzales, 453 F.3d 743, 748 

(6th Cir. 2006)). Francis’ argument that Yousif is controlling does not create a question of law 

because by nature, the question of the current country conditions requires the fact finder to review 

the conditions at the time the claim is brought; accordingly, the essence of this argument is factual. 
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See Almuhtaseb, 453 F.3d at 748 (“‘[T]he existence of ‘changed circumstances’ that materially 

affect eligibility for [deferral of withholding] is a predominately factual determination, which will 

invariably turn on the facts of a given case.’” (quoting Ramadan v. Gonzales, 427 F.3d 1218, 

1221–22 (9th Cir. 2005)). Francis’ argument that the BIA erred by not finding in a manner 

consistent to other BIA cases does not create a question of law because this argument requires the 

Court to second guess the Immigration Judge’s findings of fact, which falls outside our 

jurisdiction.5 See Ettienne, 659 F.3d at 517. Francis’ argument that the BIA erred by failing to 

treat the most recent U.S. State Department reports on Iraq as highly probative does not create a 

question of law because it asks this Court to review how the Immigration Judge weighed the report. 

See Ramaj v. Gonzales, 466 F.3d 520, 531 (6th Cir. 2016) (“Although this court has on several 

occasions acknowledged that reports issued by the U.S. Department of State may be problematic 

sources on which to rely, we have also adopted the view that such reports are nonetheless the best 

source of information on conditions in foreign nations.” (internal quotes and citations omitted)).

Finally, Francis’ argument that the BIA erred as a matter of law in concluding that the risk of 

 

5 Francis argues that the BIA’s failure to reach the same conclusion regarding the country conditions goes against the 

BIA’s “fundamental principle of justice that ‘similarly situated individuals be treated similarly.’” Zhang v. Gonzales, 

452 F.3d 167, 173 (2d Cir. 2006) (quoting Njuguna v. Ashcroft, 374 F.3d 765, 771 n.4 (9th Cir. 2004)). In support, 

Francis attached to his brief several recent BIA decisions in which the BIA remanded to the Immigration Judge for 

further fact finding and analysis regarding country conditions in Iraq where, like here, the Immigration Judge had 

declined to certify the petitioner’s witnesses as experts and had failed to consider the most recent State Department 

country report. Indeed, the BIA’s inconsistent conclusions regarding whether it is safe for Chaldean Christians to 

return to Iraq appear to be puzzling. However, because of the jurisdictional bar in § 1252(a)(2)(C), we do not have 

jurisdiction to review the BIA’s decision because determinations of country conditions are questions of fact, not of 

law. See Shabo v. Sessions, 892 F.3d 237, 241 (6th Cir. 2018). 

Under other circumstances, the country condition determination might be reviewable, despite the jurisdictional bar. 

As this Court has explained, “[w]hile we caution that challenges to fact-finding may be disguised as questions of law 

in order to evade the jurisdictional bar we face here, we acknowledge that some courts have held that certain factual 

errors can be sufficiently severe to actually constitute reviewable errors of law.” Ventura-Reyes v. Lynch, 797 F.3d 

348, 360 (6th Cir. 2015) (citing Navarro v. Holder, 505 F. App’x. 441, 445 (6th Cir. 2012) ((citing Mendez v. Holder, 

566 F.3d 316, 323 (2d Cir. 2009) (holding, in the context of a discretionary denial of cancellation of removal premised 

on a hardship waiver and that is subject to a virtually identical jurisdictional bar, that where important facts “have 

been totally overlooked and others have been seriously mischaracterized, we conclude that an error of law has 

occurred.”) (emphasis added)))). However, applying this exception to the country condition determination would 

conflict with Circuit precedent, which has made clear that the country condition determination is jurisdictionally 

barred by § 1252(a)(2)(C). See Shabo v. Sessions, 892 F.3d 237, 241 (6th Cir. 2018).
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torture does not meet the requirements for deferral of removal does not create a question of law 

because it calls into question the findings of fact the Immigration Judge relied on in denying 

Francis’ application. See Shabo v. Sessions, 892 F.3d 237, 240–41 (6th Cir. 2018) (finding that 

the BIA’s “holding that Shabo failed to establish a prima facie case of his likely torture is a factual 

determination that we lack jurisdiction to review.”). 

Francis’ fifth argument—that the Immigration Judge violated his due process rights by 

declining to certify Daniel Smith and Rebecca Heller as expert witnesses—calls into question the 

Immigration Judge’s evidentiary rulings. Because Francis’ argument is a due process claim, we 

have jurisdiction to review the Immigration Judge’s decision. Tran, 447 F.3d at 940. We review 

evidentiary rulings by Immigration Judges only to determine whether such rulings have resulted 

in a violation of due process. Singh v. Ashcroft, 398 F.3d 396, 407 (6th Cir. 2005). “[R]eviewing 

an alleged due process violation is a two-step inquiry: first, whether there was a defect in the 

removal proceeding; and second, whether the alien was prejudiced because of it.” Vasha v. 

Gonzales, 410 F.3d 863, 872 (6th Cir. 2005). In immigration proceedings, an applicant is “entitled 

to ‘a reasonable opportunity to examine the evidence against him, to present evidence on his own 

behalf, and to cross-examine witnesses presented by the Government.’” Mikhailevitch v. INS, 146 

F.3d 384, 391 (6th Cir. 1998) (quoting 8 U.S.C. § 1252(b)(3)). “As a result, a hearing where an 

immigration judge cannot be said to have fairly considered the evidence presented by the 

petitioners is one where those petitioners have been deprived of due process.” Ahmed v. Gonzales, 

398 F.3d 722, 725 (6th Cir. 2005). 

Francis’ argument fails to show a defect in the removal proceeds. An Immigration Judge 

has “broad discretion” in conducting his or her hearings. Id. Here, the Immigration Judge declined 

to certify Smith and Heller as expert witnesses because neither provided the court or the 
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government with CVs prior to the hearing. This Court has upheld an Immigration Judge’s decision 

to exclude evidence where the petitioners did not comply with filing deadlines and did not show 

good cause for their mistake. See Hassan v. Gonzales, 403 F.3d 429, 436 (6th Cir. 2005); see also

Gaziev v. Holder, 490 F. App’x 761, 765 (6th Cir. 2012) (declining petitioner’s due process claim 

where the Immigration Judge refused to permit petitioner’s expert testimony because petitioner 

violated the Immigration Judge’s order by failing to provide expert’s CV prior to the hearing). 

Further, the Immigration Judge’s decision not to certify Smith or Heller as expert witnesses did 

not exclude the evidence entirely; rather, the statements were considered by the Immigration Judge 

as fact witnesses. 

III. Conclusion

For the foregoing reasons, we DISMISS in part and DENY in part the petition for 

review.