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Hussam F. v. Sessions

United States Court of Appeals, Sixth Circuit

July 27, 2018

Hussam F., Petitioner,
Jefferson B. Sessions, III, Attorney General, Respondent.

          Argued: March 8, 2018

          On Petition for Review from the Board of Immigration Appeals; No. A 205 191 758.


          Sehla Ashai, CONSTITUTIONAL LAW CENTER FOR MUSLIMS IN AMERICA, Richardson, Texas, for Petitioner.

          Jessica D. Strokus, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.

         ON BRIEF:

          Sehla Ashai, Kristine Cruz, Pei Yu, CONSTITUTIONAL LAW CENTER FOR MUSLIMS IN AMERICA, Richardson, Texas, for Petitioner.

          Jessica D. Strokus, Anthony C. Payne, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.

          Before: GILMAN, ROGERS, and STRANCH, Circuit Judges.


          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, and Petitioner'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's inadmissibility 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 he intentionally 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 of the Board's discretion.

         Petitioner now seeks review of the BIA's decision. As explained below, the Board's discretionary 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.


         Petitioner is a citizen of Syria, but he has never set foot in that country. His parents, Sunni Muslims, fled Syria before he was born to escape violence and persecution by the regime of Hafez al-Assad. Petitioner was born in Iraq, but grew up in Yemen, where the family had moved to avoid the First Iraq War. In Yemen, Petitioner's father found work as a doctor. The family was able to obtain temporary residency status, but this was derivative of the father's work residency and had to be renewed with increasing frequency. While living in Yemen, Petitioner obtained a bachelor's degree in computer engineering from a university in Sana'a. In 2011, however, the political situation in Yemen deteriorated. With the country headed toward revolution, Petitioner left for Turkey. He entered Turkey using a Syrian passport, obtained for him by his father, which was the predecessor of the passport at issue in this case. Petitioner testified that he had "no idea" where his father went to get this passport, but he believed it to be valid.

         When Petitioner decided to pursue marriage, he sought his mother's advice on a suitable match. She suggested his cousin, Asma Alhaider, who is a United States citizen. Alhaider was born in the U.S. and has lived her whole life here; she graduated from an American university and works as an elementary school teacher in the Detroit area. Alhaider and Petitioner communicated electronically for about three years and then, in 2012, Alhaider traveled to Turkey to get to know Petitioner in person. They soon became formally engaged.

         Alhaider and Petitioner then began the process of applying for a fiancé visa that would allow him to travel to the United States so they could be married.[1] See 8 U.S.C. § 1184(d). Because Petitioner's Syrian passport was due to expire soon, he set about acquiring a new one to ensure passage to the U.S. He obtained this second passport just as he had the first one: through his father. According to Petitioner, his father would not divulge how he obtained the passport, but instead told Petitioner only that it was common for Syrian expatriates to seek the help of family in Syria for such matters. Petitioner testified that, although he understood he could not get a passport from the Syrian consulate because he had not completed his mandatory military service, he believed that his father could still get him a valid passport through his father's connections in Syria. Unfortunately, as it would turn out, this passport was a "stolen blank"- that is, a legitimate Syrian passport that had been stolen from the Syrian government and to which Petitioner's biographical information was later added without official approval. Evidence would later suggest that the passport might have been stolen by the terrorist organization known as the Islamic State of Iraq and the Levant ("ISIL"), although there is no indication that Petitioner himself has ever had anything to do with that group.

         Using his new Syrian passport, Petitioner obtained a fiancé visa from the U.S. consulate in Ankara, Turkey. He then traveled to the United States, arriving on January 26, 2014. Upon arrival, he presented his new Syrian passport to immigration officials and was allowed to enter the country. Thereafter, he and Alhaider were married. In July of that year, Petitioner applied for and received an adjustment of status to that of a conditional permanent resident. See 8 U.S.C. § 1255(a), (d); id. § 1186a. In connection with the adjustment of status, he affirmed under oath that he had not obtained his visa by fraud or misrepresentation.

         On December 12, 2015, the Department of Homeland Security ("DHS") learned that Petitioner might have entered the U.S. using a stolen blank passport. Petitioner was interviewed by federal agents twice at his home in January 2016, and he voluntarily turned over the passport for examination. Petitioner then left the U.S. on a planned trip to see family in Turkey, returning several weeks later on February 6, 2016. During this trip, he asked his father (now living in Turkey) about the passport, but his father refused to reveal from whom he had obtained it for fear of endangering that person. When Petitioner arrived back in the U.S., he was interviewed about the passport again. He explained that he had not completed his mandatory military service in Syria, and so he knew that the Syrian consulate would not issue him a passport. With the benefit of the information recently obtained from his father, he told agents that his father had gotten the passport from an unknown, well-connected person in Syria who could bypass official channels.

         The Government initiated removal proceedings on February 24, 2016, filing a Notice to Appear that contained three charges of removability under 8 U.S.C. § 1227(a)(1)(A). Under that provision, an alien is removable if he was inadmissible at the time of a prior entry or adjustment of status. The Government alleged that Petitioner was removable because, at the time of a prior entry or adjustment of status, he had been inadmissible: (1) as a nonimmigrant not in possession of a valid passport, see 8 U.S.C. § 1182(a)(7)(B)(i)(I); (2) as an immigrant not in possession of a valid passport, see id. § 1182(a)(7)(A)(i)(I); and (3) because he had obtained a visa and admission to the U.S. "by fraud or willfully misrepresenting a material fact," see id. § 1182(a)(6)(C)(i).[2]

         At a hearing before the IJ on March 14, 2016, Petitioner denied the three charges of removability and designated Syria as the country of removal based on his Syrian citizenship. On April 12, 2016, Petitioner submitted applications for: (1) a waiver of inadmissibility under 8 U.S.C. § 1227(a)(1)(H); (2) asylum; (3) withholding of removal; and (4) protection under the U.N. Convention Against Torture ("CAT").

         Petitioner appeared with counsel for three hearings in June and July of 2016. At these hearings, the IJ heard testimony from Petitioner, Alhaider, Petitioner's aunt (who is also Alhaider's mother and thus Petitioner's mother-in-law), a DHS forensic document examiner who had examined Petitioner's passport and determined it to be a stolen blank, and the U.S. Citizenship and Immigration Services officer who had processed Petitioner's application for adjustment of status. The relevant substance of this testimony has been related above. Additionally, Petitioner offered expert testimony from Professor Keith David Watenpaugh of the University of California, Davis, who explained that Syrians living in exile often have difficulty getting passports, and that they might view Syrian consulates as "enemy territory" and therefore avoid consulates for fear of placing themselves and their families at risk. He further testified that the practice of purchasing forged passports or bribing government officials to obtain passports is widely accepted among Syrians living in exile.

         The IJ issued his decision on September 12, 2016. The IJ sustained all three charges of removability and denied CAT protection. But he granted Petitioner a waiver of removal under 8 U.S.C. § 1227(a)(1)(H), asylum, and withholding of removal. The IJ first made a credibility determination, finding Petitioner's explanation regarding the passport to be credible insofar as he purported to have "blindly trusted his father to obtain his passport from Syria under a 'don't ask, don't tell' policy." However, despite Petitioner's "attempt to remain willfully blind to the passport application process," the IJ concluded that Petitioner "knew that the document was obtained in a non-traditional (if not improper) manner." "That knowledge was enough to put him on notice that the passport, purportedly issued by the Syrian government, might have been acquired improperly." Still, the IJ also found that Petitioner had "little if any reason . . . to suspect that [the passport] was a 'stolen blank' document," and that Petitioner believed the passport had been "acquired in the usual manner for a Syrian citizen opposed to the government and a member of a family living in exile."

         The IJ granted Petitioner a waiver of removal under 8 U.S.C. § 1227(a)(1)(H). That provision gives the Attorney General discretion to waive an alien's removability on the grounds specified in 8 U.S.C. § 1182(a)(6)(C)(i), i.e., that the alien obtained admission by fraud or willful misrepresentation. However, the Attorney General may exercise this discretion only if certain requirements are met. First, the alien must be "the spouse, parent, son, or daughter of a citizen of the United States or of an alien lawfully admitted to the United States for permanent residence." Id. § 1227(a)(1)(H)(i)(I). Second, the alien must have been "in possession of an immigrant visa or equivalent document and [have been] otherwise admissible to the United States at the time of such admission except for those grounds of inadmissibility specified under paragraphs (5)(A) and (7)(A) of section 1182(a) of this title which were a direct result of that fraud or misrepresentation." Id. § 1227(a)(1)(H)(i)(II). If those requirements are met, the Attorney General may exercise his discretion to grant the waiver, which the statute further explains "shall also operate to waive removal based on the grounds of inadmissibility directly resulting from such fraud or misrepresentation." Id. § 1227(a)(1)(H).

         Application of the waiver is thus a two-step process. First, the alien must meet the above requirements simply to be eligible for the waiver. Second, the Attorney General must determine that, in his discretion, the waiver should be granted. See Singh v. Gonzales, 451 F.3d 400, 410- 11 (6th Cir. 2006).

         Here, the IJ concluded that, when Petitioner initially entered the U.S., he was not in possession of an immigrant visa as required by the waiver statute, because at that time he had only a nonimmigrant fiancé visa, which, the IJ determined, was not an "immigrant visa or equivalent document." However, the IJ held that Petitioner did qualify for the waiver at the time he adjusted his status (which counts as an "admission" for purposes of the statute). See Matter of Agour, 26 I. & N. Dec. 566, 570 (BIA 2015). The IJ then concluded that, under our decision in Avila-Anguiano v. Holder, 689 F.3d 566, 570 (6th Cir. 2012), even though Petitioner qualified for the waiver only with respect to his later adjustment of status and not his initial entry into the country, he could still use it to waive his earlier misrepresentation made when he first entered the U.S.

         The IJ next held that Petitioner deserved the waiver as a matter of discretion. Petitioner's misrepresentation was "not . . . particularly egregious," because the passport appeared valid even to trained immigration officials, and Petitioner had no reason to suspect that it had been stolen from the Syrian government. There was "no other evidence that [Petitioner] is an individual of bad character," and the IJ found that any suggestion of a connection between Petitioner and ISIL was merely "unsubstantiated suspicion." Additionally, the IJ reasoned that Petitioner was deserving of the waiver because it would help him stay with Alhaider, who is a U.S. citizen, it would remove him from his former life of statelessness, and it would prevent Petitioner from being sent to a country he had never lived in that was enduring a violent civil war.

         The IJ also granted Petitioner asylum. See 8 U.S.C. § 1158. To obtain asylum, Petitioner first had to show that he was a "refugee" within the meaning of 8 U.S.C. § 1101(a)(42)(A), meaning that he was unable or unwilling to reside in Syria "because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion." Second, he had to show that he merited a favorable exercise of discretion. See id. § 1158(b)(1)(A); INS v. Cardoza-Fonseca, 480 U.S. 421, 428 n.5 (1987). The IJ held that Petitioner demonstrated a well-founded fear of persecution in Syria based on his Sunni Muslim religion, and that he merited a favorable exercise of discretion for the same reasons he merited the § 1227(a)(1)(H) waiver.

         Finally, the IJ granted withholding of removal because Petitioner had demonstrated a "clear probability" that he would face harm in Syria on account of his religion. See INS v. Stevic, 467 U.S. 407, 413 (1984); see also 8 U.S.C. § 1231(b)(3)(A). CAT protection, however, was denied.

         The Government appealed, and the BIA affirmed the grant of withholding but reversed the IJ's grants of the § 1227(a)(1)(H) waiver and asylum.[3] The Board first denied the waiver, concluding that Petitioner was neither statutorily eligible nor merited a favorable exercise of discretion. Contrary to the IJ, the Board did not read our decision in Avila-Anguiano to permit Petitioner's eligibility for the waiver based on his adjustment of status to also waive his removability based on misrepresentations made at the time of his initial entry. The Board also held that one of Petitioner's grounds of inadmissibility-his entry as a nonimmigrant without a valid passport, see 8 U.S.C. § 1182(a)(7)(B)(i)(I)-cannot be waived by § 1227(a)(1)(H). The BIA further concluded that Petitioner did not merit the waiver as a matter of discretion. To reach this determination, the Board balanced "the evidence of [Petitioner's] undesirability as a permanent resident" against "the social and humane considerations present" to determine "whether a grant of relief is in the best interests of this country." See Matter of Tijam, 22 I. & N. Dec. 408, 412 (BIA 1998). The Board concluded that a waiver was not in the country's best interests because Petitioner "kn[e]w that [his passport] was obtained in a non-traditional manner, he remained willfully blind as to its origins, and he intentionally withheld that information in order to gain entry into the United States." The Board also emphasized as a negative factor that Petitioner failed to get clarification from his father about the passport's origins, even though there is evidence that it might have been stolen by a terrorist organization. In the Board's view, these negative factors outweighed the positive factors that Petitioner was married to a U.S. citizen, he enjoyed a close relationship with his U.S. citizen in-laws, he had no criminal history, he volunteered, was highly educated, and performed skilled labor in the technology field. The Board also reasoned that concerns about breaking up Petitioner's family unit were lessened because Alhaider testified that she would go with Petitioner if he were deported to Syria, and that the humanitarian concerns about sending Petitioner to live in Syria were lessened because the Board affirmed the IJ's grant of withholding, so Petitioner was not in imminent danger of removal to that country.

         The BIA also denied asylum, first because Petitioner was not eligible for asylum due to his being "firmly resettled" in Yemen, see 8 U.S.C. § 1158(b)(2)(A)(vi); 8 C.F.R. § 1208.15, and second because, regardless of whether Petitioner was firmly resettled, the Board would deny asylum as a matter of ...

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