Sixth Circuit Requires Apparent Aggregate-Risk Analysis for CAT Claims and Adequate Explanation for Inconsistent Expert-Qualification Rulings

I. Introduction

In Maher Sabri Hanna v. Todd W. Blanche, Acting U.S. Attorney General (6th Cir. July 22, 2026), the Sixth Circuit granted a petition for review of a Board of Immigration Appeals (“BIA”) decision denying deferral of removal under the Convention Against Torture (“CAT”). Maher Sabri Hanna, an Iraqi national and Chaldean Christian who entered the United States as a child, faced removal based on Michigan marijuana convictions. After reopening based on changed country conditions, Hanna pursued only CAT deferral, arguing that—because he is a Chaldean Christian and a criminal deportee with U.S. ties, no Iraqi identity documents, no family support in Iraq, and limited Arabic—he would more likely than not be tortured by, or with the acquiescence of, Iraqi officials (including via militias such as the Popular Mobilization Forces (“PMF”)).

The case presented two key issues:

  • CAT merits / methodology: whether the agency evaluated Hanna’s torture risk in the aggregate, as Sixth Circuit law requires.
  • Expert evidence: whether the BIA acted arbitrarily and capriciously by affirming the Immigration Judge’s (“IJ”) refusal to qualify Hanna’s witness, Daniel Smith, as an expert, without adequately explaining apparent inconsistencies across similar cases.

II. Summary of the Opinion

The Sixth Circuit vacated and remanded on both grounds.

  1. Aggregate risk of torture: Although the IJ and BIA addressed Hanna’s asserted risk factors, the court found it was not apparent that the agency conducted the required aggregate (cumulative) assessment. The IJ’s phrasing treated the bases for torture disjunctively (“or”) and concluded Hanna had not shown a likelihood of torture “on any of these bases,” without a clear cumulative evaluation.
  2. Expert qualification: The court held the BIA’s explanation for rejecting Hanna’s arbitrariness challenge—principally that unpublished BIA decisions are nonprecedential and that it was “unclear what evidence was presented” in other cases—was insufficient under Sixth Circuit case law requiring an explanation of inconsistent outcomes in materially indistinguishable cases.

The court granted the petition, vacated the BIA’s decision, and remanded to the BIA for proceedings consistent with its opinion.

III. Analysis

A. Precedents Cited

1. Review framework: what the court reviews and how

  • Zometa-Orellana v. Garland, 19 F.4th 970 (6th Cir. 2021): Used to establish that when the BIA issues its own opinion, the court reviews the BIA as the final agency determination, and the IJ only to the extent adopted. This matters because the Sixth Circuit focused on what was (and was not) apparent from the IJ/BIA reasoning on aggregation and expert qualification.
  • Turcios-Flores v. Garland, 67 F.4th 347 (6th Cir. 2023), and Juan Antonio v. Barr, 959 F.3d 778 (6th Cir. 2020): Cited for the standard split between de novo review of legal conclusions and substantial-evidence review of factual findings.
  • Slyusar v. Holder, 740 F.3d 1068 (6th Cir. 2014): Quoted (via Zometa-Orellana) for the substantial-evidence principle that factual findings are conclusive unless a reasonable adjudicator would be compelled to conclude otherwise.

2. CAT elements and “aggregate risk” requirement

  • Patel v Bondi, 131 F.4th 377 (6th Cir. 2025), and Vasquez-Rivera v. Garland, 96 F.4th 903 (6th Cir. 2024): Cited for the governing burden: CAT relief requires showing a “particularized and likely threat of torture” that is “more likely than not.”
  • Mateo-Esteban v. Garland, 125 F.4th 762 (6th Cir. 2025): Cited for the public-official involvement element (torture by a public official or with consent/acquiescence), tied to 8 C.F.R. § 1208.18(a)(1).
  • Abdulahad v. Garland, 99 F.4th 275 (6th Cir. 2024): The central authority for the requirement that the BIA assess torture risk “in the aggregate.” It also supplies the admonition that courts “may not assume that the [BIA] considered factors that it failed to mention.”
  • Marqus v. Barr, 968 F.3d 583 (6th Cir. 2020): Quoted (via Abdulahad) for the principle that CAT aggregation does not require any single source of torture risk to exceed 50%; instead, the cumulative probability must exceed 50%.
  • Saleh v. Garland, 100 F.4th 742 (6th Cir. 2024): Clarifies that the aggregate-risk inquiry is “qualitative, non-quantitative,” rejecting a demand for mathematical probability calculations.
  • Yousif v. Garland, 53 F.4th 928 (6th Cir. 2022): Used to illustrate what can make aggregation “apparent” (e.g., explicit reference to aggregate risk and confirmation that the IJ applied it). The court contrasted Yousif with this case, where the IJ’s wording suggested disaggregation and the BIA did not explicitly cure the deficiency.
  • Preçetaj v. Sessions, 907 F.3d 453 (6th Cir. 2018): Quoted (via Abdulahad) for the proposition that the court will not presume the agency considered unmentioned factors.

3. Expert testimony: due process vs. arbitrariness, and the need to explain inconsistencies

  • Makdesion v. Garland, No. 22-3436, 2023 WL 2972548 (6th Cir. Apr. 17, 2023): The key comparator. The panel relied on Makdesion to hold that nearly identical BIA reasoning (“unclear what evidence was presented in other cases”) is inadequate for meaningful review when inconsistent outcomes appear across materially identical cases.
  • Hanna v. Mukasey, 290 F. App’x 867 (6th Cir. 2008): Quoted (through Makdesion) for the “meaningful review” requirement—agency reasoning must be adequate to allow judicial review of whether the BIA acted arbitrarily or abused its discretion.
  • Solaka v. Wilkinson, 844 F. App’x 797 (6th Cir. 2021): Cited for the principle that the BIA’s failure to explain inconsistent outcomes in “materially identical” cases can support an inference of arbitrary decisionmaking.
  • Zakariya v. Garland, No. 23-3047/3445, 2024 WL 869660 (6th Cir. Feb. 29, 2024): Cited to show that Sixth Circuit panels have sometimes framed similar disputes as due process claims (especially where exclusion of evidence is alleged).
  • Al-Koorwi v. Barr, 837 F. App’x 323 (6th Cir. 2020): Used to support treating the “expert vs. percipient witness” ruling as not neatly fitting the due process framework, particularly where testimony is admitted but in a different capacity. It also recognizes some inconsistency is unavoidable, while underscoring that the problem here is the failure to explain seemingly indistinguishable results.
  • Marqus v. Barr, 968 F.3d 583 (6th Cir. 2020): Distinguished. The government relied on Marqus to frame the issue as due process, but the panel explained Marqus involved a due process challenge to exclusion of an expert declaration—unlike here, where the testimony was admitted (as percipient) and the claim was arbitrariness.
  • Yousif v. Garland, 53 F.4th 928 (6th Cir. 2022): Also supplies the arbitrary-and-capricious articulation: a decision can be arbitrary if it applies the wrong legal standard or fails to explain inconsistent outcomes.

4. Collateral criminal appeal

  • People v. Hanna, No. 368481, 2025 WL 1948670 (Mich. Ct. App. July 15, 2025): Not substantive to CAT doctrine, but important procedurally. The Sixth Circuit held the petition in abeyance pending the state appeal and then noted both parties agreed the convictions remained valid. This stabilized the immigration posture: the remand turns on CAT analysis and evidentiary reasoning, not a vacatur of removability.

B. Legal Reasoning

1. The court’s core CAT holding: aggregation must be apparent from the agency’s reasoning

The opinion reinforces (and operationalizes) the Sixth Circuit’s aggregate-risk requirement: it is not enough that the agency mentions each alleged risk factor. The decision-making record must reflect a cumulative evaluation—an integrated assessment of how multiple vulnerabilities interact (religion, deportee status, lack of documents, language barriers, lack of family support, American ties, and criminal history).

The panel treated the IJ’s phrasing as a diagnostic indicator. The IJ described Hanna’s fear as torture “based on his religion, his criminal history, his Americanization and ties to the United States, his lack of family ties in Iraq, or his lack of identity documents,” and then concluded Hanna failed to show torture “on any of these bases.” The Sixth Circuit read this as disaggregation: multiple independent mini-claims, each rejected separately, without an explicit (or otherwise clear) final step that considers their combined effect.

The BIA’s affirmance likewise did not cure the problem. Although the BIA used language that can sometimes be consistent with aggregate review (that Hanna had not established he would more likely than not be tortured by or with acquiescence), the panel explained that in prior cases such language mattered when coupled with an explicit acknowledgment of aggregate review or where the IJ’s opinion clearly used that approach. Here, the IJ’s analysis suggested the opposite, and the BIA did not explicitly demonstrate it applied aggregation “in the first instance.” Under Abdulahad v. Garland and Preçetaj v. Sessions, the court refused to assume missing analytical steps.

2. The expert-witness holding: nonprecedential status does not excuse failure to explain inconsistent outcomes

On expert qualification, the Sixth Circuit characterized Hanna’s claim as arbitrary-and-capricious review rather than due process. This categorization matters: where testimony is admitted but labeled “percipient” rather than “expert,” the question becomes whether the agency gave a reasoned explanation for its evidentiary treatment and whether it acted consistently (or explained deviations) across similar cases.

The BIA rejected Hanna’s inconsistency argument largely by noting: (i) unpublished BIA decisions are not binding; and (ii) it was “unclear what evidence” was offered in other cases where Smith was qualified. The Sixth Circuit held this was the kind of conclusory explanation previously found inadequate in Makdesion v. Garland. The panel’s concern was not that the BIA must follow unpublished decisions as precedent, but that when an applicant identifies apparently indistinguishable cases producing different outcomes, the BIA must provide enough reasoning to permit meaningful judicial review and to dispel an inference of arbitrary decisionmaking.

The remedy was remand for the BIA “to adequately explain its reasoning”—not an order compelling expert qualification. This is consistent with the court’s institutional role: it polices reasoned decisionmaking and correct legal standards, leaving factbound determinations to the agency so long as they are coherently explained.

C. Impact

1. CAT litigation: “aggregate risk” must be demonstrable, not assumed

Practically, this decision signals that in the Sixth Circuit, agency opinions must make aggregation transparent. Even where each alleged risk factor is discussed somewhere, an IJ’s disjunctive framing (“or”) and “not on any basis” conclusions can invite remand if they obscure whether a cumulative evaluation occurred.

The decision thus encourages:

  • Integrated findings: a synthesis step expressly addressing how combined risk factors affect likelihood of torture.
  • Clear articulation: language indicating the agency evaluated “aggregate risk,” “cumulative probability,” or similar, consistent with Abdulahad v. Garland, Marqus v. Barr, and Saleh v. Garland.
  • More predictable appellate outcomes: reducing remands driven by ambiguity in analytical structure rather than the underlying country-conditions record.

2. Expert evidence: heightened pressure for consistent, reviewable explanations

The panel’s treatment of Daniel Smith’s expert status is likely to have effects beyond this single witness. It reinforces a broader administrative-law principle: when similarly situated litigants appear to receive different evidentiary rulings, the agency must explain why. This pushes IJs and the BIA to be more explicit about:

  • what qualifications were required and which were missing;
  • why those missing elements matter to reliability/helpfulness;
  • why a witness’s testimony is better treated as “percipient” rather than “expert” in that particular record;
  • how the agency distinguishes prior cases if inconsistency is alleged.

The immediate doctrinal consequence is procedural: more remands when the BIA’s explanation is too thin to permit review under the arbitrary-and-capricious standard described in Yousif v. Garland and applied in Makdesion v. Garland.

IV. Complex Concepts Simplified

  • CAT “deferral of removal”: A form of protection that prevents removal to a country where the person is more likely than not to be tortured, but it is narrower than asylum and can be revisited if conditions change.
  • “More likely than not”: A probability greater than 50%. Under aggregation, the question is whether all sources/reasons combined push the risk above that threshold.
  • “Acquiescence” / “willful blindness”: CAT can be satisfied not only when officials directly torture, but also when officials effectively allow it—e.g., they know (or deliberately avoid knowing) torture will occur and fail to intervene.
  • Aggregate risk analysis: A cumulative assessment of multiple risk factors together, not a requirement that any single factor independently establish a greater-than-50% likelihood.
  • Substantial-evidence review: A deferential standard for factual findings; the court upholds findings unless the record compels a contrary conclusion.
  • Arbitrary and capricious: A decision-making defect where the agency fails to apply the correct standard or fails to explain its reasoning—especially when outcomes diverge in seemingly identical cases.
  • Expert vs. percipient witness: An expert offers specialized opinions drawn from expertise; a percipient witness testifies from personal observation/experience. Reclassifying a proposed expert as percipient can limit the weight and scope of the testimony, making the agency’s explanation important.

V. Conclusion

Maher Sabri Hanna v. Todd W. Blanche, Acting U.S. Attorney General reinforces two practical rules for Sixth Circuit immigration adjudication. First, CAT decisions must reflect an apparent aggregate-risk analysis; addressing multiple risk factors separately is not enough if the reasoning does not show a cumulative evaluation. Second, when the BIA affirms an IJ’s refusal to qualify an expert amid alleged inconsistencies across similar cases, it must provide a sufficiently reasoned explanation to allow meaningful review; invoking the nonprecedential nature of prior unpublished decisions, without more, will not suffice.