Ibrahim Bare v. William Barr
975 F.3d 952
| 9th Cir. | 2020Background:
- Ibrahim Bare, a Somali native, entered the U.S. as a stowaway (1996), was granted asylum in 1997 in asylum-only proceedings, and remained an asylee for years without applying for adjustment of status.
- In 2012 Bare was convicted (jury) of two counts of being a felon in possession of a firearm (18 U.S.C. § 922(g)(1)) and later sentenced to 54 months’ imprisonment.
- DHS moved to reopen Bare’s asylum-only proceeding to terminate his asylum; the IJ granted the motion, reopened the case, and later terminated asylum without granting a continuance for Bare to pursue adjustment with USCIS.
- At the reopened hearing the IJ denied withholding of removal (finding the firearm conviction a "particularly serious crime") and denied CAT relief; the BIA affirmed both the particularly-serious-crime determination and the IJ’s conclusion that it lacked jurisdiction to adjudicate Bare’s adjustment application.
- On review the Ninth Circuit held Bare had exhausted administrative remedies on his claims but concluded the BIA did not abuse its discretion in finding the conviction particularly serious, that reopening asylum-only proceedings to terminate asylum was permissible, and that Bare’s adjustment application belonged to USCIS (not the IJ).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Bare’s felon-in-possession conviction is a "particularly serious crime" barring withholding of removal | The offense is a non-violent "status" offense; IJ/BIA failed to analyze the first Frentescu/N-A-M- factor and relied on improper facts | The offense is an aggravated felony with straightforward elements; IJ/BIA considered appropriate elements, sentence, and surrounding facts showing dangerousness | Court: Bare exhausted; BIA did not abuse discretion—conviction can be, and was, a particularly serious crime; withholding denied |
| Whether Bare exhausted his specific "status offense" argument before the BIA | Bare argues his general challenge preserved the narrower contention on appeal | Government contends Bare failed to raise the specific status-offense argument to the BIA | Court: Bare’s BIA brief gave sufficient notice; exhaustion satisfied |
| Whether the IJ in reopened asylum-only proceedings had authority to adjudicate Bare’s adjustment of status request | Bare: as an asylee he lost stowaway status and/or nonetheless should have access to §240 proceedings or IJ adjudication of adjustment | Government: asylum-only proceedings are limited; adjustment/waiver applications must be pursued with USCIS or in §240 proceedings | Court: IJ lacked jurisdiction in asylum-only proceedings; Bare should apply to USCIS (Form I-485) and seek waivers there |
| Whether grant of asylum terminates prior stowaway status and whether reopening asylum-only proceedings to terminate asylum was proper | Bare: grant of asylum should change status and preclude termination in asylum-only proceeding; must receive §240 proceedings | Government: grant of asylum confers an additional status; stowaway status persists; regulations allow reopening asylum-only proceedings to terminate asylum | Court: "Grant" confers additional status; stowaway status persists; reopening asylum-only proceedings under 8 C.F.R. § 1208.24(f) was permissible; §1208.24(g) (applicable to applicants for admission) does not apply to stowaways |
Key Cases Cited
- Flores-Vega v. Barr, [citation="932 F.3d 878"] (9th Cir. 2019) (jurisdictional limits on review of BIA particularly-serious-crime determinations; review for correct legal standard)
- Arbid v. Holder, [citation="700 F.3d 379"] (9th Cir. 2012) (abuse-of-discretion standard for particularly-serious-crime review)
- Guerrero v. Whitaker, [citation="908 F.3d 541"] (9th Cir. 2018) (aggravated felonies are "most likely" to be particularly serious crimes)
- Alphonsus v. Holder, [citation="705 F.3d 1031"] (9th Cir. 2013) (dangerousness central to particularly-serious-crime analysis)
- Benamor v. United States, [citation="937 F.3d 1182"] (9th Cir. 2019) (elements required to prove § 922(g)(1) possession offenses)
- Blandino-Medina v. Holder, [citation="712 F.3d 1338"] (9th Cir. 2013) (courts should not reweigh evidence in particularly-serious-crime review)
- Marincas v. Lewis, [citation="92 F.3d 195"] (3d Cir. 1996) (asylum procedure must be uniform irrespective of applicant’s status)
- Ali v. Barr, [citation="951 F.3d 275"] (5th Cir. 2020) (BIA: adjustment of status "to" lawful permanent residence effects a change of status)
- Siwe v. Holder, [citation="742 F.3d 603"] (5th Cir. 2014) (former-asylee may still apply for adjustment of status in certain circumstances)