Argued: March 8, 2018
Petition for Review from the Board of Immigration Appeals;
No. A 205 191 758.
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.
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.
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.
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.
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
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.
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
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. 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
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.
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
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.
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").
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.
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."
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. §
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.
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.
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.
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.
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
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. 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
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 ...