Fawzi Zaya v. Merrick B. Garland

• Court: Court of Appeals for the Sixth Circuit
• Decided: September 29, 2021
• Docket: 20-3815
• Status: Unpublished

Opinion

NOT RECOMMENDED FOR PUBLICATION File Name: 21a0445n.06

No. 20-3815

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED Sep 29, 2021 FAWZI SAMI ZAYA, ) DEBORAH S. HUNT, Clerk ) Petitioner, ) ) ON PETITION FOR REVIEW v. ) OF AN ORDER OF THE U.S. ) DEPARTMENT OF JUSTICE MERRICK B. GARLAND, U.S. Attorney General, ) EXECUTIVE OFFICE FOR ) IMMIGRATION REVIEW Respondent. ) IMMIGRATION COURT )

Before: ROGERS, BUSH, and LARSEN, Circuit Judges.

PER CURIAM. Fawzi Sami Zaya petitions for review of an immigration judge’s (IJ)

determination that he did not have a reasonable fear of torture upon removal to Iraq. For the

reasons stated, we GRANT the petition and REMAND for proceedings consistent with this

opinion.

I.

Fawzi Sami Zaya, an Iraqi citizen born in Kuwait, came to the United States with his family

when he was four years old. He has lived in the Detroit area since then. He has never been to Iraq

and speaks only English. His wife, to whom he has been married for eighteen years, is a United

States citizen. They have three children together. Zaya is a Chaldean Christian. Due to a

combination of hemorrhaging spinal discs, spinal arthritis, and a stroke that permanently weakened

his left side, he cannot walk and is in a wheelchair. Zaya also has a lengthy criminal history,

culminating with a conviction for second-degree murder under Michigan law. No. 20-3815, Zaya v. Garland

When Zaya finished his prison sentence, the Department of Homeland Security (DHS)

initiated administrative removal proceedings against him under 8 U.S.C. § 1228. Zaya sought

deferral of removal under the Convention Against Torture (CAT), the only relief available to him

because of his criminal history. Because Zaya expressed a fear of being removed to Iraq, he was

given a reasonable-fear screening interview before an asylum officer to determine whether there

was a reasonable possibility he would be tortured in Iraq.

The asylum officer found Zaya credible but determined that he did not have a reasonable

fear of torture. Zaya then sought review by an IJ who agreed with the asylum officer’s conclusion.

With no appeal being available before the Board of Immigration Appeals (BIA), see 8 C.F.R.

§ 208.31(g)(1), Zaya petitions this court for review of the IJ’s decision.

II.

An alien facing removal may seek limited forms of relief under the CAT. When an alien

facing administrative removal under 8 U.S.C. § 1228 expresses fear of returning to his native

country, the first step is a “reasonable fear” screening interview. 8 C.F.R. § 208.31(a). An asylum

officer interviews the alien, “in a non-adversarial manner, separate and apart from the general

public.” Id. § 208.31(c). An “alien may be represented by counsel or an accredited representative

at the interview . . . and may present evidence, if available, relevant to the possibility of

persecution or torture.”1 Id. An alien, however, has little time to amass such evidence, given that

the interview must be conducted within “10 days of the referral” to the asylum officer. Id.

§ 208.31(b). After the interview, “[t]he asylum officer shall create a written record of his or her

determination, including a summary of the material facts as stated by the applicant, any additional

1 The form given to the alien (Form M-488, “Information about Reasonable Fear Interview”) says nothing about the ability to present evidence. -2- No. 20-3815, Zaya v. Garland

facts relied on by the officers, and the officer’s determination of whether, in light of such facts, the

alien has established a reasonable fear of persecution or torture.” Id. § 208.31(c).

If the asylum officer concludes that the alien has a reasonable fear of persecution or torture,

the alien is given a second, more formal, hearing where he can fully present his claims to an IJ.

Id. § 208.31(e). If, however, the asylum officer makes a “negative decision regarding reasonable

fear,” the alien can seek de novo review before an IJ. Id. §§ 208.31(g), 1003.42(d). If the IJ agrees

with the asylum officer’s negative decision, a final removal order will issue, and no appeal to the

BIA is available. Id. § 208.31(g)(1). Instead, review lies directly in this court. See 8 U.S.C.

§ 1252(a)(1); 8 C.F.R. § 208.31(g)(1); see also Bonilla v. Sessions, 891 F.3d 87, 90 n.4 (3d Cir.

2018); Andrade-Garcia v. Lynch, 828 F.3d 829, 833 (9th Cir. 2016).

Several open questions complicate our review. First, what standard governs our review of

the IJ’s decision? Our circuit has not said. The government says we should ask only whether the

IJ gave a “facially legitimate and bona fide reason” for his decision. See Kleindienst v. Mandel,

408 U.S. 753, 770 (1972). Zaya instead asks us to apply the substantial-evidence standard, the

standard adopted by the two circuits that have decided the issue. See Romero v. Att’y Gen. U.S.,

972 F.3d 334, 340 (3d Cir. 2020); Andrade-Garcia, 828 F.3d at 836.

Second, how onerous is the alien’s burden at the reasonable-fear screening stage? Neither

party directly engages this question, though it seems important to our review. According to the

government, the screening interviews are designed to “quickly identify potentially meritorious

claims . . . and to resolve frivolous ones with dispatch.” Respondent Br. at 21 (alteration in

original) (quoting 64 Fed. Reg. 8478, 8479 (Feb. 19, 1999)). So perhaps the burden is not onerous

at all. The only circuit to opine on the question has held that an alien need show only a “ten percent

chance of future” torture to get past this stage. See Bartolome v. Sessions, 904 F.3d 803, 809 (9th

-3- No. 20-3815, Zaya v. Garland

Cir. 2018) (quoting Zhao v. Mukasey, 540 F.3d 1027, 10291030 (9th Cir. 2008)). But we need not

decide either the alien’s initial burden or our standard of review because we must remand to the IJ

regardless of the answers.

To pass through the screening stage and have an opportunity to fully present his claim for

CAT relief to an IJ, Zaya had to establish a “reasonable possibility” of torture upon his removal to

Iraq. 8 C.F.R. § 208.31(c). While we have yet to quantify that burden, we know that it is much

lower than what Zaya ultimately would need to prove to be eligible for CAT relief—“that it is

more likely than not that he would be tortured” in Iraq. Bi Qing Zheng v. Lynch, 819 F.3d 287,

294 (6th Cir. 2016) (quotation marks omitted).

Here, it is unclear what standard the IJ applied. When rendering his decision, the IJ

explained to Zaya the “very high burden of proof to show that you would be subjected to torture,”

and noted that Zaya must show that “it is more likely than not that [he] would be subjected to

torture.” He then explained to Zaya: “I don’t see that you have made a case for me to be able to

say that it is more likely than not that you would be tortured.” The IJ immediately followed up,

however, saying, “Now, that’s not the standard here today. The standard here today is did the

Asylum Officer correctly analyze your case and come to the proper conclusion?” But the IJ’s

written order again leaned on the burden Zaya would ultimately have to meet to obtain CAT relief.

The IJ explained that he “concur[red] in the DHS Reasonable Fear Determination because” Zaya

was “only eligible for [Deferral of Removal] relief” and he was “unable to provide a basis to show

likely to meet burden for that relief.”

To the extent the IJ applied the more-likely-than-not standard, that was error. And to the

extent he applied a hybrid standard, asking whether Zaya had demonstrated “a reasonable

possibility that he could prove that it’s more likely than not that he would be tortured” in Iraq, that

-4- No. 20-3815, Zaya v. Garland

was also error. Parra-Perez v. Garland, __ F. App’x __, 2021 WL 3015114, at *2 (9th Cir. July

14, 2021). The ultimate CAT standard—more likely than not—has no place in the screening

process. Given the informal and abbreviated nature of the screening interview and subsequent IJ

review, the regulations require a substantially lower hurdle for an alien to clear in order to receive

“full consideration” of his claim for relief. See 8 C.F.R. § 208.31(c), (e). An alien “at the screening

stage must establish solely a reasonable possibility of torture, not a reasonable possibility of what

he or she might be able to prove down the line.” Parra-Perez, 2021 WL 3015114 at *2.

To the extent the IJ did apply the reasonable-possibility standard, we must still remand

because we are unable to discern why the IJ concluded that Zaya did not clear this bar. Courts

have recognized that not much is required of an IJ when rendering a decision in a reasonable-fear

proceeding. See Bartolome, 904 F.3d at 813–14. But at the same time, “there must be something

for us to review.” Aucay v. Att’y Gen. U.S., 841 F. App’x 479, 481 (3d Cir. 2021) (quotation marks

omitted). The IJ’s statements or written order must do enough to “explain the reasons for the IJ’s

decision” to “allow [the appellate court] to engage in . . . meaningful review of that decision.” Id.;

see also Scorteanu v. I.N.S., 339 F.3d 407, 412 (6th Cir. 2003).

In rendering his decision at the close of the hearing, the IJ acknowledged that the “Asylum

Officer made some mistakes,” including referring to Zaya as a “Calvin” instead of a Chaldean.

The IJ also acknowledged that “[t]here were other similar mistakes in the interview,” though we

are not told what those mistakes were. Nonetheless, the IJ concluded that the asylum officer made

no mistake in “the conclusion, the analysis that the officer went through in coming to a Decision

in [Zaya’s] case.” On that basis, the IJ concluded that he “ha[d] to, based on the record here today,

come to that same conclusion.” Accordingly, the IJ “den[ied] the reasonable fear challenge and

concur[red] in [the asylum officer’s] analysis.”

-5- No. 20-3815, Zaya v. Garland

But the asylum officer provided no analysis. Though he reached a negative decision, he

did not explain why. He found Zaya credible. But then the asylum officer merely checked one

box indicating that Zaya had no reasonable fear of torture, and another box indicating that Zaya

had no reasonable fear of torture because he had not established a reasonable possibility that he

“would suffer severe physical or mental pain or suffering.” The forms indicate that the officer was

required to provide an “assessment” explaining the reasons for the negative decision; but no such

assessment apparently exists. Accordingly, there was no analysis with which the IJ could concur.

Parsing the transcript of the IJ interview does offer some indication why the IJ concluded

that Zaya had not shown a reasonable possibility of torture. At one point, the IJ challenged Zaya’s

fear of ISIS, noting that the Iraqi army had regained control of formerly ISIS-controlled territory.

But that was only one aspect of Zaya’s claim. Zaya also asserted that the Iraqi government itself

was targeting Chaldean Christians, that his criminal conviction could make him a target, and that

Chaldean Christians in Iraq face genocide. The IJ said nothing about these assertions at the

hearing, and the IJ’s written order offers no additional reasoning.

Neither the transcript of the hearing nor the written order explains why the IJ concluded

that Zaya had not met his burden of showing a reasonable possibility of torture upon removal to

Iraq. We are thus unable to engage in meaningful review of the IJ’s decision. See Aucay, 841 F.

App’x at 481. As a result, we grant Zaya’s petition and remand to the IJ for reconsideration of its

decision.2

2 Nothing in this opinion should be read as an indication of our views on the merits of Zaya’s claim. -6- No. 20-3815, Zaya v. Garland

***

We GRANT the petition and REMAND to the IJ for further proceedings consistent with

this opinion.

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