NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 19a0631n.06 Case No. 19-3130 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED FIRAS KHAYRI NISSAN, ) Dec 20, 2019 ) DEBORAH S. HUNT, Clerk Petitioner, ) ) ON PETITION FOR REVIEW v. ) FROM THE UNITED STATES ) BOARD OF IMMIGRATION WILLIAM P. BARR, Attorney General, ) APPEALS ) Respondent. ) BEFORE: BATCHELDER, WHITE, and THAPAR, Circuit Judges. PER CURIAM. Firas Nissan challenges the administrative decision denying his applications for immigration relief. We deny his petition for review. Nissan is an Iraqi national and a Christian who reopened his removal proceedings to pursue withholding of removal and protection under the Convention Against Torture. Among other evidence, he submitted written statements (or “declarations”) by three proposed experts on conditions in Iraq. The declarations opined that Nissan would be at a high risk of persecution or torture in his home country. But the government objected that two of Nissan’s experts—immigration lawyer Rebecca Heller and journalist Daniel Smith—weren’t qualified to make such predictions. The immigration judge (“IJ”) agreed, excluded Heller’s declaration, and ignored the opinion statements in Smith’s. But Smith’s declaration also included factual statements from his firsthand experience and the IJ admitted those statements as nonexpert evidence. Ultimately, the IJ denied relief, finding in a Case No. 19-3130, Nissan v. Barr thorough opinion that Nissan wasn’t a credible witness and hadn’t proven multiple facts essential to his claims. Nissan then challenged Heller and Smith’s disqualification before the Board of Immigration Appeals (“BIA”). But the BIA didn’t decide whether the IJ had erred because it determined the error (if there was one) was harmless anyway. The BIA found that to the extent Heller’s and Smith’s declarations discussed general conditions in Iraq, they were consistent and cumulative with other evidence in the record. It also noted that because hearsay is often admissible in removal proceedings, the wrongful exclusion of expert opinion evidence is less prejudicial than it would be under the Federal Rules of Evidence. On appeal, Nissan once again argues that the IJ erred by disqualifying his experts. Because the BIA reviewed the IJ’s decision and issued a separate opinion without adopting the IJ’s reasoning, we review the BIA’s decision, not the IJ’s. Khalili v. Holder, 557 F.3d 429, 435 (6th Cir. 2009). And the BIA’s explanations for why any error was harmless hold up. Heller’s declaration. Heller discussed armed conflicts among ISIS, the Iraqi government, government-allied Shia militias, and Kurdish militias. As relevant here, Heller emphasized that ISIS, Shia militias, government forces, and other non-state actors pose a threat to religious minorities and U.S.-affiliated Iraqis. Although Heller provided some additional anecdotes, these topics are amply covered in the record. So Heller’s statement was cumulative. Smith’s declaration. The same goes for much of Smith’s declaration. It too discussed ethnic and religious conflict in Iraq. One distinctive feature of Smith’s declaration was his prediction that the Iraqi government would detain Nissan indefinitely on arrival and that he would probably be tortured while in detention. This ...
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