F. H.-T. v. Eric Holder, Jr.
743 F.3d 1077
| 7th Cir. | 2014Background
- FH-T, Eritrean citizen, sought asylum; removal proceedings initiated after DHS notice to appear; IJ denied asylum and withholding but granted deferral of removal under CAT; BIA affirmed IJ’s conclusions on terrorism bar and eligibility; DHS, via CIS, handles many waiver determinations administratively outside IJ/BIA; the statute permits waivers under 8 U.S.C. § 1182(d)(3)(B)(i) but with judicial review of legal issues; the court’s panel relied on regulatory structure that can impede waivers, prompting a dissent urging en banc review and possible corrective agency action.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Appropriateness of regulatory barriers to waiver relief | FH-T has statutory right to seek waiver; agencies created barriers. | Panel properly limited review to asylum/withholding merits and related waiver issues. | Dissent: barriers improper; agencies should ensure waiver access. |
| Authority and sequence for waiver determinations under §1182(d)(3)(B)(i) | DHS should grant waiver after final BIA order and before final removal if eligible. | Secretary’s waiver discretion may be exercised in relation to removal proceedings. | Dissent: DHS/DHS authority can remedy process to allow waiver consideration. |
| Role of BIA and agency procedures in facilitating a waiver | BIA should not foreclose waiver opportunities by structure. | BIA’s findings on terrorism bar control remaining issues. | Dissent: administrative structure should ensure waiver access rather than defeat rights. |
| Effect of statutory scheme on judicial review of waiver determinations | Statute allows judicial review of legal issues in waiver determinations. | Judicial review is limited by final removal order framework. | Dissent: statutory rights and review must be harmonized; current regime flawed. |
| Impact of other circuit precedents on agency remedies (Subhan, Benslimane, Ceta) | These cases support review of agency actions that thwart statutory relief. | Distinctions from FH-T case limit applicability. | Dissent: those precedents support enforcing statutory rights in this context. |
Key Cases Cited
- Subhan v. Ashcroft, 383 F.3d 591 (7th Cir. 2004) (review of discretionary denial that blocks statutory relief)
- Benslimane v. Gonzales, 430 F.3d 828 (7th Cir. 2005) (continuance denial thwarting eligibility for relief reversible)
- Ceta v. Mukasey, 535 F.3d 639 (7th Cir. 2008) (regulatory interstice trapping applicant seeking status adjustment)
- Kucana v. Holder, 558 U.S. 233 (2010) (limits on extending review of discretionary agency action)