Laith Shazi v. Monty Wilkinson
988 F.3d 441
| 8th Cir. | 2021Background
- Shazi, an Iraqi national, assisted U.S. forces in the 1990s, was granted asylum in 1997, and later developed PTSD, anxiety, and depression.
- After several criminal convictions (2007, 2011), DHS initiated removal proceedings in 2012; an IJ sustained removability but granted withholding of removal.
- In 2016 Shazi was convicted of making terroristic threats and domestic abuse; DHS moved to reopen to terminate withholding based on the 2016 convictions.
- The IJ reopened, terminated withholding (finding the 2016 terroristic-threats conviction a "particularly serious crime"), denied CAT relief, and found Shazi not credible; the IJ declined to consider his mental-health evidence under Matter of G-G-S-.
- The BIA affirmed the IJ on the particularly serious crime finding, credibility, CAT denial, and denial of remand for newly proffered evidence; Shazi appealed to the Eighth Circuit.
- The Eighth Circuit granted review limited to the legal question whether the BIA permissibly barred mental-health evidence in the particularly serious crime analysis, vacating and remanding for reconsideration of that evidence but otherwise denying relief.
Issues
| Issue | Plaintiff's Argument (Shazi) | Defendant's Argument (BIA/DHS) | Held |
|---|---|---|---|
| Whether 2016 terroristic-threats conviction is a "particularly serious crime" barring withholding | G-G-S categorical ban is unlawful; mental-health evidence (PTSD, etc.) must be considered and could mitigate seriousness | BIA: mental-health evidence unrelated to the pivotal inquiry; Matter of G-G-S- bars such evidence | Court: BIAs categorical ban is arbitrary and capricious; mental-health evidence may be considered; remand for reconsideration of that evidence |
| Adverse credibility finding by IJ | Shazi: IJ erred in finding testimony not credible | DHS: IJ provided specific, cogent reasons tied to inconsistencies and police reports | Court: Credibility determination upheld (factual, review for substantial evidence; IJ and BIA supported decision) |
| Denial of CAT protection/deferral (likelihood of torture) | Shazi: record shows likely torture in Iraq because of U.S. assistance history | DHS/BIA: evidence showed countrywide violence but not that mid-1990s collaborators like Shazi face likely torture; ISIS is nonstate actor not acquiesced to by Iraqi government | Court: BIA factual finding affirmed under substantial-evidence standard; CAT/deferral denial upheld |
| Motion to remand based on new evidence about lack of Iraqi documents increasing torture risk | Shazi: new expert affidavits show changed country conditions and risk if returned without documents | BIA: evidence was available earlier or not shown to be newly unavailable; proffered reports mostly predate IJ decision and unlikely to change outcome | Court: BIA did not abuse discretion in denying remand; denial upheld |
Key Cases Cited
- Gomez-Sanchez v. Sessions, 892 F.3d 985 (9th Cir. 2018) (Ninth Circuit rejected BIAs categorical ban on mental-health evidence in particularly serious crime analysis)
- Marambo v. Barr, 932 F.3d 650 (8th Cir. 2019) (all reliable information outside the record of conviction may be considered in particularly serious crime determinations)
- Tian v. Holder, 576 F.3d 890 (8th Cir. 2009) (focus on nature of the crime in particularly serious crime analysis)
- Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984) (two-step framework for reviewing agency statutory interpretation)
- Nasrallah v. Barr, 140 S. Ct. 1683 (2020) (jurisdictional rule allowing review of CAT factual findings despite criminal-alien limitations)
- Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117 (2016) (agency must explain changes in policy; unexplained inconsistencies can be arbitrary and capricious)
- Padilla v. Kentucky, 559 U.S. 356 (2010) (criminal counsel may lack expertise in immigration consequences; criminal records may not contain immigration-relevant evidence)