Ilir Osmani v. Merrick B. Garland, 24 F.4th 617

Ilir Osmani, a Kosovo refugee admitted to the U.S. in 1999, had criminal convictions (a 2019 narcotics possession and a prior aggravated-felony theft). DHS initiated removal proceedings in December 2019.
Osmani applied to adjust status under 8 U.S.C. § 1159(a) and for a § 1159(c) waiver of inadmissibility based on humanitarian grounds and family unity.
At the Immigration Judge (IJ) hearing the government took no position, the IJ curtailed further evidence and live witnesses, and orally granted adjustment and the waiver based on Osmani’s family ties and PTSD despite his criminal history.
On appeal the government—having raised no objections before the IJ—advanced two new arguments to the Board of Immigration Appeals (BIA): (1) Osmani failed to show a qualifying family unity basis for a waiver, and (2) the negative equities outweighed positive equities. The BIA reversed and denied Osmani’s motion to remand to develop record evidence about conditions in Kosovo.
The Seventh Circuit held the BIA erred by considering arguments the government first raised on appeal and abused its discretion by engaging in impermissible factfinding when it denied remand; the court vacated the BIA’s decision and remanded.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the BIA may consider arguments the government first raised on appeal	Osmani: BIA exceeded its scope and violated precedent by considering issues not presented to the IJ; government waived them	Government: limits on preserving issues apply mainly to applicants; it may raise new arguments on appeal	The BIA erred: it may not consider novel arguments first raised on appeal by the government; remand required
Whether the BIA abused its discretion by denying remand and by engaging in factfinding about Kosovo conditions	Osmani: BIA impermissibly performed de novo factfinding on an undeveloped record; remand to IJ for factfinding and live testimony required	Government: Osmani should have completed the record; BIA may review evidence de novo and deny remand	The BIA abused its discretion: it engaged in impermissible factfinding and should have remanded to allow the IJ to develop the record

Fuller v. Whitaker, 914 F.3d 514 (7th Cir. 2019) (jurisdictional limits on review of removal orders)
Aparicio-Brito v. Lynch, 824 F.3d 674 (7th Cir. 2016) (legal questions arise when BIA misinterprets its precedent)
Avila-Ramirez v. Holder, 764 F.3d 717 (7th Cir. 2014) (BIA must follow its precedent on declining to consider issues not raised before the IJ)
Joseph v. Lynch, 793 F.3d 739 (7th Cir. 2015) (court ensures BIA considered all relevant evidence)
Wood v. Mukasey, 516 F.3d 564 (7th Cir. 2008) (BIA may not engage in factfinding)
Meraz-Saucedo v. Rosen, 986 F.3d 676 (7th Cir. 2021) (standard for reversing BIA denial of remand for impermissible bases)
Alvarez-Espino v. Barr, 959 F.3d 813 (7th Cir. 2020) (abuse-of-discretion framework for remand denials)
Spencer v. Kemna, 523 U.S. 1 (1998) (standing and personal stake principles relevant to retaining jurisdiction)