Motion to reopen removal proceedings; Motions to reopen based on “changed circumstances”; 8 CFR § 1003.2©(3)(ii); Whether the Board of Immigration Appeals (BIA or the Board) failed to compare the evidence submitted with a motion to reopen to the country-conditions evidence presented with the application for relief under the Deferral of Removal under the Convention Against Torture (DCAT); Whether the changes in country conditions were “material”; Whether the BIA was required to consider the evidence as to the risk of torture “in the aggregate”; Marqus v. Barr; Matter of J-R-G-P- (BIA); Whether the BIA articulated a reasoned basis for concluding petitioner did not establish a reasonable likelihood of torture; Whether errors were “harmless”; Immigration & Naturalization Service (INS); Immigration judge (IJ)

The court held that the BIA erred by failing to compare the evidence of conditions in Iraq submitted with petitioner-Abdulahad’s motion to reopen with his application for DCAT relief and instead comparing it to the country-conditions evidence presented in his prior motions. As a result, it applied the incorrect legal standard. And in an issue of first impression in this circuit, the court formally adopted the “aggregate” risk of torture standard announced in Marqus and Matter of J-R-G-P-. Abdulahad, who was born in Iraq, secured permanent resident status in the U.S. He was found guilty of attempting to transport cocaine in Aruba, and the INS instituted removal proceedings. He was ordered removed in absentia and has since remained in the country under supervision. He successfully had his case reopened in 2017, where his claim was based upon changed conditions in Iraq. But the IJ rejected his claim of future torture as a Chaldean Christian or based on his ties to the U.S. He unsuccessfully moved to reopen in 2018. In 2021, he filed a new motion to reopen, along with a supplement with updated reports on the conditions in Iraq. It was ultimately denied. Because his motion was filed outside the 90-day limit, he was required to meet the requirement of showing changed country circumstances. He argued that the Board failed to compare the evidence he submitted with his motion to reopen to the country-conditions evidence presented with his application for DCAT relief, and instead compared it to evidence in his other motions to reopen. The court agreed, explaining that the Board “incorrectly disregarded most of Abdulahad’s evidence as cumulative or not new.” Because the Board “explicitly compared the wrong evidence throughout its decision[,] . . . [it] abused its discretion by applying the incorrect legal standard.” The court also found that the Board failed to adequately explain whether persecution of Christians had escalated since Abdulahad’s original proceeding. And the court held that “if a petitioner invokes more than one independent source of or reason for the risk of torture, the Board must consider the petitioner’s risk of torture in the aggregate.” Abdulahad also argued the Board erred by failing to articulate a reasoned basis for concluding he did not establish a reasonable likelihood of torture. “The Board abuses its discretion if it explicitly considers some but not all of the critical bases of a petitioner’s claim.” The court concluded “the Board abused its discretion by not articulating a reasoned basis for its decision that addressed the relevant information.” It rejected the government’s argument that any error was harmless. The court granted the petition for review, vacated the Board’s decision, and remanded.