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Keywords

tortpleamisdemeanorimmigration lawadmissibility
tortpleamisdemeanorvisaadmissibility

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Kassim v. Barr

Facts

Ahmed Shariif Kassim, a citizen of Somalia, arrived in the U.S. as a refugee in 2013. After pleading no contest to two counts of misdemeanor fourth-degree sexual assault involving two teenage girls, he became removable under U.S. immigration law. Kassim requested a waiver of inadmissibility to become a lawful permanent resident and also sought deferral of removal under the Convention Against Torture. Initially, an immigration judge granted both requests, but the BIA later reversed these decisions.

Kassim is a citizen of Somalia who arrived in the United States as a refugee in 2013. A little more than two years later, he pleaded no contest to two counts of misdemeanor fourth-degree sexual assault. The charges arose out of nonconsensual sexual contact with two teenage girls, and once convicted, he could no longer get a visa or enter the United States. See 8 U.S.C. 1182(a)(2)(A)(i)(I) (discussing 'crime[s] involving moral turpitude'). In fact, when Kassim tried to reenter the country after a short trip to Canada, the Department of Homeland Security detained him at the border and charged him as removable. Kassim concedes that he is removable but has requested two forms of relief. First, he asked for a waiver of inadmissibility that would allow him to become a lawful permanent resident of the United States. See id. 1159(a), (c). Second, he requested deferral of removal under the Convention Against Torture. See 8 C.F.R. 1208.16(c); see also id. 1208.17. After Kassim initially succeeded on both arguments before an immigration judge, the Board reversed and concluded that neither form of relief was available.

Issue

Did the BIA properly apply its standard of review in denying Kassim's waiver of inadmissibility and in handling his request for deferral of removal under the Convention Against Torture?

Did the BIA properly apply its standard of review in denying Kassim's waiver of inadmissibility and in handling his request for deferral of removal under the Convention Against Torture?

Rule

The BIA may review the factual findings of the immigration judge for clear error but cannot find new facts of its own. Legal and discretionary calls receive de novo review. An alien must show that denying a waiver would result in exceptional and extremely unusual hardship.

The BIA may review the factual findings of the immigration judge for clear error, 8 C.F.R. 1003.1(d)(3)(i); Waldron, 688 F.3d at 360, but it may not find new facts of its own, 8 C.F.R. 1003.1(d)(3)(iv), even if it is trying to fill gaps in the immigration judge's reasoning, Nabulwala v. Gonzales, 481 F.3d 1115, 1119 (8th Cir. 2007). The same is not true of legal and discretionary calls, which receive de novo review. 8 C.F.R. 1003.1(d)(3)(ii); see also Waldron, 688 F.3d at 360.

Analysis

The court found that the BIA did not supplant the immigration judge's hardship finding but rather reviewed the discretionary decision to grant the waiver de novo. The BIA assumed Kassim was eligible for a waiver but denied it as a matter of discretion. However, the court noted that the BIA failed to make a necessary finding regarding Kassim's likelihood of suffering torture, which required remand to the immigration judge.

The Board ultimately denied the waiver, but it did not supplant the immigration judge's hardship finding with one of its own. Rather, it took the hardship finding as a given and then went on to review the discretionary decision to grant the waiver de novo. See Urrutia Robles v. Barr, 940 F.3d 420, 422 (8th Cir. 2019) (concluding that the Board did not supplant the immigration judge's findings when it decided to reweigh the equities of a discretionary decision). Indeed, it explicitly assumed that Kassim was 'eligib[le]' for a waiver, but it nevertheless decided to deny him one 'as a matter of discretion.' This is a decision that the Board was empowered to make. 8 U.S.C. 1159(c); 8 C.F.R. 1003.1(d)(3)(ii).

Conclusion

The court granted the petition for review in part and denied it in part, instructing the BIA to remand the case to the immigration judge for a finding on whether Kassim would more likely than not suffer torture in Somalia.

The petition for review is accordingly granted in part and denied in part. We instruct the Board to remand to the immigration judge for a finding on whether Kassim would more likely than not suffer torture in Somalia.

Who won?

Kassim prevailed in part as the court remanded the case for further proceedings regarding his request for deferral of removal under the Convention Against Torture.

Kassim prevailed in part as the court remanded the case for further proceedings regarding his request for deferral of removal under the Convention Against Torture.

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