681 F.3d 1227
11th Cir.2012Background
- Makir-Marwil, a Sudan native, entered the U.S. as a refugee in 2000; a 2004 adjustment application was denied due to missed interview in 2005.
- In 2006 he pled nolo contendere to grand theft of a go-cart and burglary, receiving a 31-month sentence.
- DHS issued an NTA in 2007 charging removability based on the 2006 convictions; at a 2008 master calendar, he admitted removability and the IJ found him removable.
- May 2008 Makir-Marwil applied for a § 209(c) waiver and, separately, asylum, withholding of removal, and CAT relief; the IJ granted CAT deferral but denied asylum and the waiver.
- At a January 2009 hearing the IJ again denied the waiver under Jean’s heightened standard for violent/dangerous individuals, while granting CAT deferral; the BIA affirmed the waiver denial.
- The Ninth Circuit granted partial relief and remanded to consider whether Sudan country conditions and other hardships establish extraordinary circumstances warranting a § 209(c) waiver.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does Jean require a fact-based analysis to classify a refugee as violent or dangerous? | Makir-Marwil argues for a fact-based analysis of his crimes under Jean. | Makir-Marwil's opponents contend Jean allows a flexible approach not strictly fact-based. | Jean does not mandate a rigid fact-based approach; analysis depends on circumstances and the nature of the offenses. |
| Whether the IJ/BIA erred by not considering Sudan country conditions and individual hardship for the § 209(c) waiver. | Makir-Marwil asserts hardship evidence and Sudan conditions show exceptional, extremely unusual hardship meriting a waiver. | Defendant contends only torture is cognizable here since not removed to Sudan; hardship was not shown to be exceptional. | The court remands to consider Sudan conditions and other hardship evidence to determine if extraordinary hardship warrants a waiver. |
Key Cases Cited
- De Sandoval v. U.S. Att’y Gen., 440 F.3d 1276 (11th Cir. 2006) (questions of law reviewed de novo; BIA’s adoption of IJ's reasoning reviewed)
- Chen v. U.S. Att’y Gen., 463 F.3d 1228 (11th Cir. 2006) (review of BIA and IJ decisions; interplay of agency determinations)