12 F.4th 1312
11th Cir.2021Background
- Hassan Farah, a Somali national admitted as a refugee in 1996, accrued multiple Minnesota convictions (including a controlled-substance conviction and second-degree assault) and faced removal proceedings after criminal sentences.
- Farah’s original NTA omitted time/place; he later moved to reopen, conceded removability at an initial hearing, then admitted facts but contested several aggravated-removal charges and pursued asylum/withholding/CAT and a refugee inadmissibility-waiver.
- The IJ denied relief (found second-degree assault an aggravated felony, denied withholding/CAT and refused to adjudicate the waiver), and the BIA affirmed, applying the modified categorical approach to the drug conviction and denying the waiver as a discretionary matter.
- Farah filed a petition for review to the Eleventh Circuit and a habeas petition challenging prolonged detention and the governing detention statute; this Court stayed removal then ultimately dissolved the stay.
- The court addressed: (1) notice-to-appear jurisdiction/claim-processing arguments; (2) removability for the controlled-substance offense and for second-degree assault as an aggravated felony; (3) denial of a refugee inadmissibility waiver; (4) denial of withholding of removal and CAT; and (5) whether detention is governed by 8 U.S.C. § 1226(c) or § 1231(a).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Defective NTA / jurisdiction and remand | Farah: defective NTA (no time/place) deprived IJ of jurisdiction or at least violated agency claim‑processing rules and merits remand | Gov: Perez‑Sanchez controls; time/place is a claim‑processing rule not jurisdictional; Farah failed to exhaust any claim‑processing remand argument before the BIA | Court: Jurisdictional argument foreclosed by Perez‑Sanchez; claim‑processing remand argument was not raised before the BIA and is dismissed for lack of jurisdiction |
| Controlled‑substance removability | Farah: Minn. statute broader than federal law so categorical approach precludes removability | Gov: Minnesota statute is divisible; modified categorical approach shows conviction for oxycodone (federally controlled) | Court: Statute divisible; record shows oxycodone; conviction is removable under §1227(a)(2)(B)(i) |
| Second‑degree assault as aggravated felony | Farah: Minn. second‑degree assault does not categorically require violent force | Gov: Statute requires assault with a dangerous weapon, which entails use/threat of physical force → crime of violence | Court: Subdivision qualifies as a crime of violence; conviction is an aggravated felony → removable |
| Refugee inadmissibility waiver (discretion) | Farah: BIA misapplied Jean framework and legal standards for waivers | Gov: Denial was discretionary under Jean; this Court lacks jurisdiction to review discretionary balancing; BIA applied correct legal standard | Court: Reviewable legal question resolved against Farah; discretionary weighing is not reviewable here; petition dismissed as to these arguments |
| Withholding of removal and CAT | Farah: BIA/IJ ignored highly relevant evidence that al‑Shabaab targets westernized returnees and controls much territory, making relocation unreasonable and creating torture risk | Gov: BIA considered record country conditions, found harassment but not persecution on alleged grounds, internal relocation reasonable, and no likely state‑instigated torture | Held: Majority — BIA gave reasoned consideration; denial affirmed. Concurrence/dissent — one judge would remand, finding BIA ignored highly relevant evidence |
| Habeas / governing detention statute | Farah: detention governed by §1226(c); as‑applied constitutional challenge should be considered; alternatively §1231(a) and Zadvydas analysis | Gov: §1231(a) governs (removal period/Zadvydas); stay interrupted the clock | Court: While stay pending judicial review means §1231 removal period has not begun, detention pending final appellate disposition is governed by §1226(c); because the Court denied relief and dissolved the stay, Farah’s habeas challenge to §1226(c) detention is now moot and his §1231(a) challenge isn’t ripe; habeas petition vacated and remanded for dismissal |
Key Cases Cited
- Pereira v. Sessions, 138 S. Ct. 2105 (clarified NTA time‑and‑place requirement; distinguishes jurisdictional vs claim‑processing rule)
- Perez‑Sanchez v. U.S. Att’y Gen., 935 F.3d 1148 (11th Cir.) (time‑and‑place defect is claim‑processing rule; immigration court retains jurisdiction)
- Zadvydas v. Davis, 533 U.S. 678 (presumptively reasonable six‑month §1231(a) detention; challenge when removal not reasonably foreseeable)
- Rendon v. Barr, 952 F.3d 963 (8th Cir.) (Minnesota controlled‑substance statute is divisible; substance identity is element)
- Guillen v. U.S. Att’y Gen., 910 F.3d 1174 (11th Cir.) (explains categorical vs modified categorical approaches)
- Jaggernauth v. U.S. Att’y Gen., 432 F.3d 1346 (11th Cir.) (categorical approach for crime‑of‑violence analysis)
- Jennings v. Rodriguez, 138 S. Ct. 830 (addresses mandatory detention under §1226(c) and statutory detention regimes)
- Nasrallah v. Barr, 140 S. Ct. 1683 (clarified §1252(a)(2)(C) limits and that CAT claims remain reviewable)
- Ali v. U.S. Att’y Gen., 931 F.3d 1327 (11th Cir.) (reasoned‑consideration standard; "highly relevant" evidence doctrine)
- Jeune v. U.S. Att’y Gen., 810 F.3d 792 (11th Cir.) (indicia of inadequate reasoned consideration by the BIA)