Category: Hussam F. v. Sessions

PER CURIAM. Four years ago, Petitioner came to the United States on a K-1 fiancé visa, using a Syrian passport. Although he was a Syrian citizen, his family had fled Syria decades ago to escape persecution. Petitioner therefore had difficulty obtaining a passport from a Syrian consulate in the usual manner, and he instead relied on his father to get a passport for him through unknown contacts in Syria. As it would turn out, however, this was a mistake. The passport was not legitimate; it had been stolen from the Syrian government while blank, andPetitioner’s biographical information was later inscribed without official approval.

When U.S. immigration officials learned of this, they initiated removal proceedings. An immigration judge (“IJ”) concluded that Petitioner was removable, but granted withholding of removal and asylum based on the risk of religious persecution that Petitioner would face if removed to Syria. The IJ also granted him a waiver of removal under 8 U.S.C. § 1227(a)(1)(H),a statute that, if certain eligibility requirements are met, permits waiver of an alien’sinadmissibility due to fraud or misrepresentation. The Government appealed, however, and the Board of Immigration Appeals (“BIA” or “Board”) reversed in part. The Board affirmed the grant of withholding, but concluded that Petitioner was not entitled to asylum or to the § 1227(a)(1)(H) waiver. The Board reasoned that he was statutorily ineligible for asylum, and that he did not deserve that form of relief as a matter of the Board’s discretion because heintentionally failed to tell immigration officials about the non-traditional manner in which his passport had been obtained. The Board also concluded that, with respect to the waiver, Petitioner neither met the statutory eligibility requirements nor merited the waiver as a matter ofthe Board’s discretion.

Petitioner now seeks review of the BIA’s decision. As explained below, the Board’sdiscretionary denial of asylum amounted to an abuse of discretion because the Board unreasonably applied its own binding precedent. That precedent dictates that asylum may not be denied solely due to violations of proper immigration procedures, and also that the danger of persecution—which all agree exists in this case—should outweigh all but the most egregious countervailing factors. As for the waiver, by statute courts are generally deprived of jurisdiction to review discretionary determinations such as the denial of a waiver under § 1227(a)(1)(H). This jurisdictional limitation does not apply here, however, because the BIA engaged in de novo review of the IJ’s factual findings, in violation of its regulatory obligation to review those findings only for clear error.

KEY QUOTE FROM DISSENT:

ROGERS, Circuit Judge, concurring in part and dissenting in part. I join parts I, II.A,and II.B of the court’s opinion, but I respectfully dissent with respect to Parts II.C and II.D.

We have no business exercising jurisdiction to review the discretionary aspect of theBIA’s denial of the §1227(a)(1)(H) waiver, where Congress has clearly denied us such jurisdiction. See 8 U.S.C. § 1252(a)(2)(B)(ii). In particular, Congress has flatly denied usjurisdiction to review the BIA’s denial, in its discretion, of a waiver under § 1227(a)(1)(H), except for constitutional claims and questions of law. See id. § 1252(a)(2)(D). Calling theBIA’s fact-bound exercise of statutory discretion a legal issue makes the question-of-law exception swallow the rule and amounts to an unwarranted grab of decisional authority. The legal question in this case, according to Petitioner, is whether the Board complied with its regulatory obligation to review the IJ’s fact-finding for clear error. Only in the most technical sense can this be called a question of law. The same technical sense would make a legal issue of virtually any issue on judicial review of agency action, and thereby effectively nullify in its entirety the preclusion of judicial review that Congress enacted.

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In my experience, it is rather unusual to see an unsigned majority “per curiam” decision in a published case of this length and complexity, particularly one in which there is a dissent.

I wrote Matter of Kasinga, 21 I&N Dec. 357, 367 (BIA 1996), one of the precedents that the BIA ignored. Although Kasinga is best-known for being the first precedent recognizing “female genital mutilation” (“FGM”) as persecution for asylum purposes, the discretionary point was also quite important. I actually cited it frequently during my years as an Immigration Judge.

Not only did the BIA make numerous legal errors in reversing the ImmigrationJudge’s asylum grant, but the outcome makes no sense from a policy standpoint. The BIA agreed that the respondent was entitled to “withholding of removal” based on a clear probability of persecution. In practical terms, that means he will remain in the U.s. indefinitely, probably for life. But, by denying him asylum, the BIA prevents him from ever qualifying to regularize his status and become a full member of our society. Makes no sense.

To return to one of my recurring themes, I invite everyone to look at the complexity of this case and the  effort it took counsel to prepare, including presentation of expert testimony. Even after prevailing before the Immigration Judge, counsel had to defend the victory against a BIA that refused to follow its own precedent favorable to asylum seekers.  So, counsel had to appeal to a third level, the Article III Court.

No unrepresented respondent would have any chance of receiving a fair hearing and prevailing on a case of this type. The idea that forcing respondents to proceed in asylum cases without counsel comports with Due Process is little short of preposterous. And a system where the appellate authority, the BIA, can’t be relied upon to give respondents the benefit of its own favorable asylum precedents is certainly badly broken.

We need an independent Article I Immigration Court now! That would be the beginning, but certainly not the end, of fixing a broken system and restoring Due Process and fundamental fairness to immigration adjudications.

PWS

07-28-18