Javokhir Attoev v. Attorney General United States of America

• Court: Court of Appeals for the Third Circuit
• Decided: July 6, 2026
• Docket: 25-2587
• Status: Unpublished

Opinion

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _____________

No. 25-2587 _____________

JAVOKHIR ATTOEV, Petitioner

v.

ATTORNEY GENERAL UNITED STATES OF AMERICA _____________________________________

On Petition for Review of an Order of the Board of Immigration Appeals (Agency No. A240-055-794) Immigration Judge: Richard Bailey _____________________________________

Submitted Pursuant to Third Circuit L.A.R. 34.1(a)

June 30, 2026

Before: SHWARTZ, PHIPPS, and RENDELL, Circuit Judges.

(Filed: July 6, 2026) _________

OPINION* _________

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. RENDELL, Circuit Judge.

Javokhir Attoev (“Petitioner”) petitions this Court for review of a Board of

Immigration Appeals (“BIA”) order reversing the Immigration Judge’s (“IJ”) decision

granting Attoev deferral of removal under the Convention Against Torture (“CAT”) and

ordering his removal to Uzbekistan. He urges that the BIA applied the incorrect standard

of review in reversing the IJ’s decision to grant his claim for deferral of removal under

CAT. He also argues that the BIA’s decision was unsupported by substantial evidence.

We will deny the petition.

I.

Petitioner entered the U.S. without authorization. The Department of Homeland

Security (“DHS”) charged him with removability under 8 U.S.C. § 1182(a)(6)(A)(i). In

response, he claimed asylum, statutory withholding of removal, other forms of relief from

removal under CAT. To support his claims, he alleged that he had previously been

targeted by Uzbek officials based on his religious beliefs as a practicing Muslim and he

feared that he would be persecuted or tortured if removed to his home country.

He later explained that while studying in Russia to become an athletics coach,

officers arrested him for his purported affiliation with a terrorist organization in

Uzbekistan. As authorities attempted to extradite him, Petitioner sought protection from

removal in the European Court of Human Rights (“ECHR”). The ECHR ultimately ruled

in Petitioner’s favor concluding that he would face a “real risk of ill-treatment . . . in the

event of [his] removal to [his] countr[y] of origin.” AR763-64. Despite this favorable

2 ruling, he still feared extradition, so he fled from Russia to a series of locations before

arriving in the U.S.

During the pendency of his removal proceedings, DHS officers arrested Petitioner

on an outstanding international warrant alleging his involvement with a terrorist

organization. After his arrest, the Government uncovered evidence of his participation in

an identity fraud scheme to produce and distribute false travel documents and evidence of

his possession of illicit drugs and a gun. Later, in separate proceedings, the Government

charged Petitioner for other crimes.

After a hearing in which Petitioner testified and submitted evidence, the IJ issued a

mixed decision denying the application for asylum and withholding of removal but

otherwise granting his application for deferral under CAT. In rejecting his claims for

asylum and withholding, the IJ concluded that Petitioner “failed to sustain his burden to

establish persecution,” because his testimony on this point was “inconsistent,”

“implausible,” and riddled with “discrepancies,” and therefore, not credible, AR104, 110.

Despite his unreliable testimony and the absence of evidence that the Uzbek government

fabricated charges against him as pretext to persecute him on religious grounds, the IJ

nevertheless granted his claim for deferral. The IJ found that Petitioner “will more than

likely be detained upon his arrival” and further concluded that he would, thus, be

subjected to torture. AR115.

Both parties appealed. The BIA affirmed the denial of Petitioner’s asylum and

withholding claims but reversed the grant of deferral. In reversing, it recognized that

while the IJ’s correctly found that Petitioner was more than likely to be arrested upon

3 removal, the IJ “erroneously conflate[d] the respondent’s risk of arrest with his risk of

torture.” AR6 (emphasis added). The BIA concluded that while Petitioner submitted

generalized evidence establishing the existence of torture in Uzbekistan, this evidence

was insufficient to meet Petitioner’s “burden of proof” to show that he himself would

more likely than not be tortured. AR 5. He petitioned for review.

II.1

Petitioner advances two arguments. First, he argues that the BIA “engaged in

improper de novo review of the factual findings of the IJ.” Pet’r’s Br. 1. Second, he

argues that “the BIA’s decision to reverse the grant of deferral of removal under [CAT]

was [un]supported by substantial evidence.” Id. We reject both.

A.

Contrary to Petitioner’s urging, the BIA did not engage in “improper de novo

review.” Pet’r’s Br. 1.

A claimant who is ineligible for withholding of removal under CAT because he is,

like Petitioner, a danger to national security, may otherwise be eligible for deferral of

removal if he is more likely than not to be tortured upon removal to the target country. 8

C.F.R. § 1208.17(a). The claimant carries the burden of showing his entitlement to such

1 We have jurisdiction to review final orders of removal under 8 U.S.C. § 1252(a)(1). We review legal conclusions de novo. Toussaint v. Att’y Gen., 455 F.3d 409, 413 (3d Cir. 2006). We will not disturb factual findings “if supported by reasonable, substantial, and probative evidence on the record considered as a whole.” I.N.S. v. Elias-Zacarias, 502 U.S. 478, 481 (1992)(quotation marks and citation omitted).

4 relief. 8 C.F.R. § 1208.17(d)(3). To succeed on a claim for deferral under CAT, a

claimant must establish “(1) what is likely to happen to [him] if removed; and (2) . . .

[that] what is likely to happen amount[s] to the legal definition of torture[.]” Myrie v.

Att’y Gen., 855 F.3d 509, 516 (3d Cir. 2017) (quoting Kaplun v. Att’y Gen., 602 F.3d

260, 271 (3d Cir. 2010)). An IJ’s determination as to the first of these two prongs is

reviewed by the BIA for “clear error.” Id. An IJ’s determination as to the second prong

is reviewed de novo because whether harm constitutes “torture” is a legal question. Id.

Torture in this context means an “extreme form of cruel and inhuman treatment and does

not include lesser forms of cruel, inhuman or degrading treatment or punishment.”

8 C.F.R. § 208.18(a)(2).

Petitioner urges that the BIA improperly reweighed some, and disregarded other,

evidence on which the IJ relied in granting his claim. In so doing, he continues, the BIA

conducted an improper de novo review of the facts and “substitut[ed] its own judgment”

for that of the IJ’s. Pet’r’s Br. 15-16. On the contrary, the BIA left the IJ’s findings of

fact undisturbed. Among other things, the BIA recognized and upheld the IJ’s adverse

credibility determination and concluded that “[t]he [IJ’s] factual finding that the

respondent is more likely than not to be detained upon removal to Uzbekistan is not

clearly erroneous.” AR6. The BIA reviewed the facts found by the IJ and, despite

Petitioner’s characterizations to the contrary, reversed the IJ not on any factual ground,

but on the legal ground that Petitioner had not met his burden of proving a clear

probability that he would be tortured.

5 The BIA acknowledged that Petitioner adduced “[e]vidence of the general

possibility of torture” but concluded that this evidence did not establish a clear

probability that he would “be targeted for such treatment.” AR6. While Petitioner posits

that the BIA “disregard[ed]” some evidence that established that he would more likely

than not be tortured, namely “the ECHR record,” Pet’r’s Br. 15, the BIA did not

disregard the ECHR decision, but instead, rightly recognized that it supported only the

proposition that he might face “ill-treatment,” AR6. But “ill-treatment” is not the legal

equivalent of “torture as defined by the CAT.” AR6. Despite Petitioner’s urging, the

ECHR decision did not constitute “independent, probative evidence in support of

[Petitioner’s] risk of torture,” but instead, constitutes evidence to support that Petitioner

faced a risk of ill-treatment. Pet’r’s Br. 19 (emphasis added).

Petitioner also urges that the BIA incorrectly faulted the IJ’s analysis, which rested

on “a relatively small number of anecdotal incidents,” to conclude that torture was so

widespread as to establish that Petitioner would more likely than not be tortured. Pet’r’s

Br. 16 (quoting AR6) (internal quotation marks omitted). Indeed, much of the evidence

that Petitioner adduced showed, as a general matter, “that the Uzbek government has

targeted and detained religious individuals using ‘trumped up’ criminal charges,” AR9,

but this evidence did little to advance Petitioner’s cause. This is because the IJ found that

there was no evidence that “the Uzbek government fabricated charges against” Petitioner

as pretext for persecuting him on religious grounds, AR113, and further noted that

Petitioner “failed to articulate a[n] . . . explanation as to why the Uzbek[] government is

targeting him” beyond his alleged involvement in terrorism, AR112.

6 The BIA was, therefore, correct to conclude that Petitioner failed to meet his

burden of proof as to what would more than likely occur upon his removal and that what

would occur meets the legal definition of torture.

B.

Next, we reject Petitioner’s argument that the BIA’s decision was not supported

by substantial evidence. The substantial evidence standard requires that we uphold an

agency decision “if [it is] supported by reasonable, substantial, and probative evidence on

the record considered as a whole.” Elias-Zacarias, 502 U.S. at 481. We reverse

only when “the evidence is such that a reasonable factfinder would be compelled

to conclude otherwise.” Chavarria v. Gonzalez, 446 F.3d 508, 515 (3d Cir. 2006).

Evidence relevant to assessing the probability of torture includes “[e]vidence of

past torture inflicted upon the applicant,” “[e]vidence of gross, flagrant or mass violations

of human rights within the country of removal,” and “[o]ther relevant information

regarding conditions in the country of removal.” 8 CFR § 1208.16(c)(3)(i)-(iv).

Generalized statements of torture in a target country are “insufficient to show that harm

would more likely than not result” to a particular petitioner. See Hernandez Garmendia

v. Att’y Gen., 28 F.4th 476, 484 (3d Cir. 2022). Instead, “[t]he specter of torture must be

supported by specific evidence that the individual applicant is more likely than not to be

singled out.” Id. (citing Denis v. Att’y Gen., 633 F.3d 201, 218 (3d Cir. 2011)); cf.

Herrow v. Att’y Gen., 93 F.4th 107, 114 (3d Cir. 2024) (recognizing that evidence that

more than fifty percent of Somalian minorities were tortured upon removal could support

the clear probability of torture).

7 Here, the IJ found, and the BIA left undisturbed, that Petitioner was not credible.

The BIA otherwise concluded that the remaining evidence submitted by Petitioner failed

to support the proposition that he would more than likely face harm rising to the level of

torture if removed. The BIA’s decision to reverse the IJ’s grant of deferral was,

therefore, supported by substantial evidence because we cannot say that the BIA

“overlook[ed] evidence in the record.” Kang v. Att’y Gen., 611 F.3d 157, 166 (3d Cir.

2010).

Petitioner contends that the record, however, compels the opposite conclusion

reached by the BIA. But not only is the BIA’s decision supported by substantial

evidence, “[t]he record before us in no way supports a contrary result (i.e., granting CAT

protection).” Hernandez Garmendia, 28 F.4th at 484. Petitioner claims that the BIA

“overlooked the significant country conditions evidence,” and other “probative

evidence,” Pet’r’s Br. 19, but, as the Government persuasively notes in its brief, much of

the evidence to which Petitioner cites for support is irrelevant because “as the Board

explained, the IJ disbelieved Attoev’s claim that Uzbek authorities were targeting him

for . . . his religio[us] beliefs.” Gov’t’s Br. 15.

Beyond the ECHR decision and “anecdotal reports” we addressed in Section II.A.,

above, Petitioner cites primarily to two sources of evidence that purportedly compel

reversal: the U.S. Commission on International Religious Freedom Report

(“Commission Report”) and U.S. State Department Human Rights Reports (“State

Department Reports”).

8 First, Petitioner claims that the Commission Report shows that “the ‘vast majority’

of individuals profiled reported torture and ill-treatment,” Pet’r’s Br. 21, but the report

standing alone or even read in tandem with the other evidence would not “compel[]” a

reasonable factfinder to grant Petitioner’s claim. Chavarria, 446 F.3d at 515. The report

itself notes that “the quantitative and statistical conclusions presented here regarding the

numbers of political and religious prisoners . . . are by no means definitive.” AR 619.

And while the majority of the eighty-one persons profiled for the report made credible

allegations of ill-treatment, less than half alleged torture. Rather than supporting

reversal, the Commission Report, thus, supports the BIA’s conclusion that while

Petitioner established the existence of torture in Uzbekistan, Petitioner had not

established a clear probability that he would be subject to treatment rising to the level of

torture.

The State Department Reports likewise do not compel reversal. One report notes

that both “torture and ill-treatment” are “routinely committed” but the relative frequency

of torture as opposed to “ill-treatment” is unexplained. See AR 703-04 (discussing

allegations of torture in connection with “several criminal trials”). Another report also

noted that “torture in pretrial detention remained commonplace and could have

increased.” AR 500-01 (emphasis added). The record thus does not compel the opposite

conclusion reached by the BIA, which is supported by substantial evidence.

IV.

For these reasons, we will deny the petition for review.