Ahmed Kassim v. William P. Barr, 954 F.3d 1138

Background

Kassim, a Somali refugee who arrived in the U.S. in 2013, pleaded no contest to two misdemeanor fourth-degree sexual-assault charges involving nonconsensual contact with teenage girls.
His convictions rendered him inadmissible; DHS detained him at the border when he attempted to reenter the U.S. after a trip to Canada and charged him removable.
Kassim conceded removability but sought (1) a waiver of inadmissibility (requiring a showing of "exceptional and extremely unusual hardship" because his crimes were deemed violent/dangerous) and (2) deferral of removal under the Convention Against Torture (CAT).
An Immigration Judge (IJ) granted both forms of relief: the IJ found Kassim would face hardship if returned and concluded CAT deferral was appropriate (though the IJ did not explicitly make a "more-likely-than-not" torture finding).
The Board of Immigration Appeals (BIA) reversed both decisions: it assumed eligibility for the waiver but denied relief as a discretionary matter; it reversed the CAT grant by treating the IJ’s statement that Kassim was "disproportionately" likely to be tortured as if it were a "more-likely-than-not" finding.
The court granted the petition in part and denied it in part: it upheld the BIA’s discretionary denial of the waiver but remanded for the IJ to make the required more-likely-than-not finding on CAT; a judge dissented in part, arguing the BIA impermissibly made new factual findings in the waiver analysis.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Jurisdiction as to review of BIA standards	Kassim: court may review whether BIA applied its own standard of review (question of law).	Gov: criminal-alien and discretionary-relief bars strip jurisdiction.	Court: Jurisdiction exists under §1252(a)(2)(D) exception for questions of law; court may review these issues.
Whether BIA supplanted IJ’s factual hardship finding for waiver eligibility	Kassim: BIA replaced IJ’s factual finding that he "would" suffer hardship.	Gov/BIA: BIA assumed eligibility and exercised discretion; any wording inconsistencies were inadvertent.	Court: BIA did not impermissibly supplant the IJ’s factual hardship finding; denial as a discretionary reweighing was permissible.
Whether BIA made impermissible new factual findings in reweighing waiver equities	Kassim: BIA relied on new factual findings (e.g., that he minimized culpability), beyond IJ’s findings.	BIA: Its comments responded to Kassim’s appellate arguments and were part of discretionary weighing.	Court: Majority — BIA’s comments did not constitute impermissible factfinding; Dissent — would find BIA made new factual findings and would reverse on that basis.
Whether CAT relief requires remand due to missing more-likely-than-not finding	Kassim: IJ’s statement that he was "disproportionately" likely to be tortured is insufficient; IJ failed to find "more likely than not."	BIA: Treated the IJ’s statement as satisfying the requirement and reversed.	Court: Remand required. IJ must make an explicit more-likely-than-not finding; BIA erred by treating a different finding as sufficient.

Key Cases Cited

Waldron v. Holder, 688 F.3d 354 (8th Cir. 2012) (distinguishes reviewing questions of law from factual findings and limits BIA factfinding)
Nabulwala v. Gonzales, 481 F.3d 1115 (8th Cir. 2007) (BIA may not supply new factual findings; insufficient findings require remand)
Jima v. Barr, 942 F.3d 468 (8th Cir. 2019) ("more-likely-than-not" CAT finding treated as factual question)
Mervil v. Lynch, 813 F.3d 1108 (8th Cir. 2016) (criminal-alien bar exceptions for questions of law)
Yohannes v. Holder, 585 F.3d 402 (8th Cir. 2009) (discretionary-relief bar does not preclude review of questions of law)
Garcia-Mata v. Sessions, 893 F.3d 1107 (8th Cir. 2018) (appellate review of whether BIA applied its own standards correctly is a question of law)
Urrutia Robles v. Barr, 940 F.3d 420 (8th Cir. 2019) (BIA may reweigh equities in discretionary relief without supplanting IJ factfinding)
Brikova v. Holder, 699 F.3d 1005 (8th Cir. 2012) (discusses the scope of the criminal-alien bar)