Ahmed Shariif Kassim v. William P. Barr, Attorney General of the United States
No. 18-3618
United States Court of Appeals For the Eighth Circuit
Submitted: December 11, 2019; Filed: April 3, 2020
Before SMITH, Chief Judge, GRASZ and STRAS, Circuit Judges.
Petition for Review of an Order of the Board of Immigration Appeals
The overarching question in this case is whether the Board of Immigration Appeals applied its own standard of review correctly. After an immigration judge granted a waiver of inadmissibility and deferral of removal to Ahmed Shariif Kassim, the Board reversed both decisions. Kassim claims that, in doing so, the
I.
Kassim is a citizen of Somalia who arrived in the United States as a refugee in 2013. A little more than two years later, he pleaded no contest to two counts of misdemeanor fourth-degree sexual assault. The charges arose out of nonconsensual sexual contact with two teenage girls, and once convicted, he could no longer get a visa or enter the United States. See
Kassim concedes that he is removable but has requested two forms of relief. First, he asked for a waiver of inadmissibility that would allow him to become a lawful permanent resident of the United States. See
II.
We begin with the government‘s argument that we lack jurisdiction to review the arguments raised in Kassim‘s petition for review. In the government‘s view, the criminal-alien bar applies because Kassim has been convicted of a “crime of moral turpitude” under
If these provisions applied, it is true that we would not be able to proceed any further. See Jima v. Barr, 942 F.3d 468, 471–72 (8th Cir. 2019); Waldron, 688 F.3d at 360. But both of these jurisdiction-stripping provisions have an exception for questions of law, see
III.
The Board‘s standards of review are straightforward, at least in theory. It may review the factual findings of the immigration judge for clear error,
Once the case reaches us, the scope of review narrows even further. Due to our limited jurisdiction, we can consider only “constitutional questions and questions of law,” id. (citation omitted), including whether the Board applied its own standards correctly, under a de-novo standard of review, Garcia-Mata v. Sessions, 893 F.3d 1107, 1109 (8th Cir. 2018).
We start with the decision on the waiver of inadmissibility. A heightened standard applied to Kassim‘s request because his two sexual-assault crimes qualify as “violent or dangerous.” In re Jean, 23 I. & N. Dec. 373, 381–84 (A.G. 2002); see also
The Board ultimately denied the waiver, but it did not supplant the immigration judge‘s hardship finding with one of its own. Rather, it took the hardship finding as a given and then went on to review the discretionary decision to grant the waiver de novo. See Urrutia Robles v. Barr, 940 F.3d 420, 422 (8th Cir. 2019) (concluding that the Board did not supplant the immigration judge‘s findings when it decided to reweigh the equities of a discretionary decision). Indeed, it explicitly assumed that Kassim was “eligib[le]” for a waiver, but it nevertheless decided to deny him one “as a matter of discretion.” This is a decision that the Board was empowered to make.
To be sure, some passages in the Board‘s decision are not as clear as they could have been. For example, the Board said at one point that Kassim would only face “possible” hardship if he were returned to Somalia. In isolation, this statement
Even so, we are not convinced that the Board “supplant[ed]” the immigration judge‘s finding.2 Waldron, 688 F.3d at 361. After all, if the Board disagreed with the finding that Kassim likely faced hardship—a threshold eligibility question—there would have been little reason to go on and balance the equities. See In re Jean, 23 I. & N. Dec. at 381–84 (explaining that an alien who has committed a violent or dangerous crime must show extraordinary circumstances, like unusual hardship, to be eligible for a discretionary waiver). We accordingly suspect that any discrepancies in wording were inadvertent and did not cross the line separating permissible weighing from impermissible fact finding.
B.
Further proceedings are required, however, on Kassim‘s request for deferral of removal under the Convention Against Torture. The immigration judge concluded that this type of relief was available. But what is missing from the decision is a finding that Kassim would “more likely than not” suffer torture in Somalia.
IV.
The petition for review is accordingly granted in part and denied in part. We instruct the Board to remand to the immigration judge for a finding on whether Kassim would more likely than not suffer torture in Somalia.
GRASZ, Circuit Judge, dissenting in part.
The court reverses and remands on Kassim‘s request for deferral of removal under the Convention Against Torture due to the lack of a finding by the IJ as to whether Kassim would “more likely than not” suffer torture in Somalia. I join this part of the opinion in full. I would also reverse due to improper fact-finding by the BIA in its waiver of inadmissibility analysis.
In exercising its discretion to reweigh the factors relevant to the waiver of inadmissibility, the BIA stated that ”during his hearing and on appeal, [Kassim] has minimized his culpability in the crime leading to his convictions. His testimony and contentions tend to blame his criminal behavior on his friend and the victims of his sexual assault. . . .” (emphasis added) (citations to transcript omitted). This may be true. But, nowhere in the IJ‘s decision does she find that Kassim minimized his own culpability or blamed others. Rather, on pages 5–6 of the IJ‘s transcribed decision, the IJ found that it “would appear that [Kassim‘s] friend was the primary instigator” and that Kassim “did not know [the victims] were juveniles.” In light of