                                                              NOT PRECEDENTIAL

                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT


                                    No. 15-1116


                                  KAMAL JAMAI,
                                      a/k/a
                                   Jamai Kamal,
                                                     Petitioner

                                            v.

                ATTORNEY GENERAL OF THE UNITED STATES



                      On Petition for Review of an Order of the
                           Board of Immigration Appeals
                            Agency No.: A079-734-133
                   Immigration Judge: Honorable Steven A. Morley


                           Argued on September 11, 2015


                         (Opinion filed: December 31, 2015)


          Before: VANASKIE, SLOVITER, and RENDELL, Circuit Judges




Christopher M. Cassazza (Argued)
Law Office of David E. Piver
150 Stafford Avenue
Suite 115
Wayne, PA 19087
                   Counsel for Petitioner
Shahrzad Baghai
Kathryn L. DeAngelis
Thomas W. Hussey
United States Department of Justice
Office of Immigration Litigation, Civil Division
P.O. Box 878
Ben Franklin Station
Washington, D.C. 20044

Aaron D. Nelson                          (Argued)
United States Department of Justice
Office of Immigration Litigation, Civil Division
Room 6439
P.O. Box 878
Ben Franklin Station
Washington, D.C. 20044

                     Counsel for Respondent



                                      O P I N I O N*


RENDELL, Circuit Judge:

       Kamal Jamai petitions for review of the decision of the Board of Immigration

Appeals (“BIA”) reversing the ruling of the Immigration Judge (“IJ”) that Jamai was

entitled to relief from removal under the Convention Against Torture (“CAT”). Because

the BIA did not adequately explain the reasoning underlying its decision, we are unable

to meaningfully review that decision. We will therefore vacate the BIA’s order and

remand for further proceedings.

                                     I. Background

       *
        This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
does not constitute binding precedent.
                                             2
       Jamai entered the United States on a non-immigrant B-2 visa in 1999 when he was

16 years old. In 2002, he married a United States citizen, with whom he fathered a child

in April 2009. Because of his marriage to a United States citizen, Jamai’s application for

an adjustment of his immigration status to that of a Lawful Permanent Resident was

granted in October 2009.

       Jamai has been a heroin addict since 2004. To fund his addiction, Jamai has taken

to thievery, for which he has been arrested no fewer than fourteen times in eight years.

These arrests led to several convictions, prompting the Department of Homeland Security

to charge Jamai with removability pursuant to 8 U.S.C. § 1227(a)(2)(A)(i)-(iii) based on

the nature of his convictions. Jamai does not contest that his criminal convictions are of

the type that would require his removal under 8 U.S.C. § 1227, but seeks to have his

removal deferred under the CAT, see generally 8 C.F.R. § 1208.17. Jamai contends that

his addiction would almost certainly lead him to relapse into using heroin, which would

lead to his arrest and torture by law enforcement in Morocco.

       In his hearing before the IJ, Jamai testified that he is addicted to heroin, that he has

only refrained from using heroin when in custody, that he has relapsed each time he has

been released from custody, that stress triggers his relapses, and that removal to Morocco

would cause him considerable stress. Documentary evidence was admitted that describes

heroin addiction and relapse, indicating that relapse is stress-induced and that addiction

chemically alters the brain. Dr. Abdeslam Maghraoui, a professor at Duke University,

testified on Jamai’s behalf as an expert on Moroccan political institutions. Dr. Maghraoui

testified that drug treatment resources in Morocco are limited and that drug treatment is

                                              3
among the lowest priorities of the Moroccan government. Dr. Maghraoui testified that if

Jamai relapsed into his heroin use he would most likely be arrested by authorities in

Morocco, whether for purchasing an illegal substance (heroin) or for stealing to purchase

heroin. That Jamai has lived his entire adult life in the United States would make him a

target for police attention, Dr. Maghraoui testified, because he would be an “outsider” in

Moroccan society. Finally, Dr. Maghraoui testified that Moroccan authorities would more

likely than not torture Jamai, as the use of torture to secure confessions for unsolved

crimes (even those for which the tortured individual is not a suspect) is prevalent in

Morocco. Moreover, Jamai’s “Americanized” demeanor and attitude concerning

individual rights make it likely that the police in Morocco would perceive Jamai as

disrespectful and would mistreat him. See App. 13-14. Jamai introduced documentary

evidence supporting Dr. Maghraoui’s opinion testimony, particularly the testimony that

drug treatment is largely unavailable in Morocco and that Moroccan authorities often

resort to torture to obtain forced confessions.

       The IJ credited Jamai’s and Dr. Maghraoui’s testimony and ruled in favor of

Jamai, concluding that Jamai had demonstrated by a preponderance of the evidence that

he would be tortured if removed to Morocco.1 In so concluding, the IJ found each of the

following links in a hypothetical chain of events more likely than not to occur: (1) Jamai

is a heroin addict; (2) Jamai will relapse if removed to Morocco; (3) Jamai will not seek

or receive adequate treatment for his addiction in Morocco; (4) as a result of his addiction


       1
         The IJ did not rely on Dr. Maghraoui’s testimony as to whether Jamai was likely
to relapse.
                                              4
and lack of adequate treatment, Jamai will be arrested by Moroccan authorities; and (5)

Jamai will be subjected to torture by the police.

       The BIA reversed the decision of the IJ, finding “clear error in the [IJ’s] finding

that it is more likely than not that [Jamai] will be tortured if removed to Morocco because

it is based on a string of suppositions which are unproven on this record.” App. 4. The

BIA’s reasoning for its conclusion was explained in a single paragraph:

       [T]he [IJ] determined, without adequate documentary or qualified expert
       witness evidence on the issue, that it is more likely than not that [Jamai]
       will relapse and use heroin in Morocco. While there is some evidence in the
       record concerning the frequent relapse of heroin addicts, the record lacks
       testimony from a qualified expert or documentation assessing the likelihood
       that a person in [Jamai’s] specific circumstances is likely to relapse. [Jamai]
       has been able to refrain from using heroin for more than 2 years and claims
       to fear severe consequences should he resume its use in Morocco.
       Furthermore, the [IJ] assumed that [Jamai] would not seek out any
       treatment that may be available to prevent such a relapse. [Jamai’s]
       evidence also does not prove each step in the hypothetical chain concerning
       whether the authorities would become aware of any future heroin use and
       arrest him, that he would then refuse to confess his guilt, and that he thus
       would be tortured for the purpose of procuring his confession.

App. 4-5 (citations and footnote omitted).

                        II. Jurisdiction and Standard of Review

       We have jurisdiction under 8 U.S.C. § 1252(a)(1) to review the BIA’s final order

of removal. We review legal determinations by the BIA de novo, although we defer to the

BIA’s reasonable interpretations of the law. See Gomez–Zuluaga v. Att’y Gen. of U.S.,

527 F.3d 330, 339 (3d Cir. 2008) (citing Chevron, U.S.A., Inc. v. Nat. Res. Def. Council,

Inc., 467 U.S. 837, 838 (1984)). We review factual determinations by the BIA for

substantial evidence. Valdiviezo–Galdamez v. Att’y Gen. of U.S., 663 F.3d 582, 590 (3d


                                             5
Cir. 2011). To meaningfully review the BIA’s order, however, “we must have some

insight into its reasoning,” especially when the BIA reverses the IJ’s decision. Toussaint

v. Att’y Gen. of U.S., 455 F.3d 409, 414 (3d Cir. 2006), as amended (Sept. 29, 2006)

(quoting Awolesi v. Ashcroft, 341 F.3d 227, 232 (3d Cir. 2003)). Although “the BIA is

not required to write an exegesis on every contention,” id. (quoting Zudeba v. Ashcroft,

333 F.3d 463, 477 (3d Cir. 2003)), “the BIA should indicate its reasons for discrediting

certain testimony or documentary evidence.” Id.

                                        III. Analysis

       To qualify for withholding of removal under the CAT, Jamai bears the burden of

“establish[ing] that it is more likely than not that he . . . would be tortured if removed to

the proposed country of removal.” Kaplun v. Att’y Gen. of U.S., 602 F.3d 260, 268 (3d

Cir. 2010) (quoting 8 C.F.R. § 208.16(c)(2)). There are two distinct parts to the question

of whether relief under the CAT can be granted: (1) the factual question of what is likely

to happen to Jamai if removed; and (2) the legal question of whether what is likely to

happen amounts to the legal definition of torture.2 Id. at 271. In demonstrating that he

would likely be tortured if removed, Jamai must demonstrate that each link in the

hypothetical chain of events is more likely than not to occur, as “[i]t is the likelihood of

all necessary events coming together that must more likely than not lead to torture, and a

chain of events cannot be more likely than its least likely link.” In Re J.F.F., 23 I. & N.



       2
         The BIA reversed on the first of these two questions (“what is likely to happen to
the petitioner if removed?”) and did not address the second (“does what is likely to
happen amount to the legal definition of torture?”). The second is thus not at issue.
                                               6
Dec. 912, 918 n.4 (AG 2006); accord. Savchuck v. Mukasey, 518 F.3d 119, 123-24 (2d

Cir. 2008).

       Here, the BIA rejected the IJ’s findings that Jamai would likely relapse if removed

to Morocco, leading to his being arrested and tortured by Moroccan authorities. In

rejecting the IJ’s findings that Jamai was likely to relapse if he returned to Morocco, the

BIA stated that the record “lacks testimony from a qualified expert or documentation

assessing the likelihood that a person in [Jamai’s] specific circumstances is likely to

relapse.” App. 4-5. But “[t]he likelihood [of] (an inferential fact) may be established

through . . . testimony of past experience,” Kaplun, 602 F.3d at 269, and the IJ credited

Jamai’s testimony about his past experience of repeated stress-induced relapses into

heroin use. The BIA did not discuss this evidence. The BIA did note that Jamai “has been

able to refrain from using heroin for more than 2 years,” App. 5, but evidence before the

IJ showed that Jamai had been incarcerated during this two-year period and that, while

Jamai had a history of having drug-free periods while incarcerated, these were followed

by relapses upon release from incarceration, see App 10, 18. The BIA did not discuss this

evidence.

       Similarly sparse was the BIA’s explanation for rejecting the IJ’s finding that the

other links in the causal chain were more probable than not. The BIA explained that “the

[IJ] assumed that [Jamai] would not seek out any treatment that may be available to

prevent such a relapse.” App. 5. But the IJ reached that conclusion after considering (a)

Jamai’s history of not availing himself of treatment; and (b) documentary evidence and

expert testimony indicating that “there are virtually no available [drug treatment]

                                             7
resources in Morocco.” App. 19. The BIA did not discuss any of this evidence. The BIA

further asserted that Jamai’s “evidence also does not prove each step in the hypothetical

chain concerning whether the authorities would become aware of any future heroin use

and arrest him, that he would then refuse to confess his guilt, and that he thus would be

tortured for the purpose of procuring his confession.” App. 5. But Dr. Maghraoui testified

as to each of these steps in the hypothetical chain, and the IJ credited his testimony. We

do not know whether, or if so, why, the BIA may have rejected this testimony.

       By failing to address much of the evidence relied upon by the IJ, the BIA

effectively discredited that evidence without explanation, leaving us unable to

meaningfully review the BIA’s decision. See Toussaint, 455 F.3d at 414 (“[T]he BIA

should indicate its reasons for discrediting certain testimony or documentary evidence.”).

Accordingly, we will remand for a more thorough explication by the BIA.

                                      IV. Conclusion

       For the foregoing reasons, Jamai’s petition for review will be granted, the BIA’s

order will be vacated, and this case will be remanded to the BIA for further consideration

consistent with this opinion.




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