HUSSAM F. v. JEFFERSON B. SESSIONS, III, Attorney General
No. 17-3641
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
July 27, 2018
RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuаnt to Sixth Circuit I.O.P. 32.1(b) File Name: 18a0154p.06
On Petition for Review from the Board of Immigration Appeals; No. A 205 191 758.
Argued: March 8, 2018
Decided and Filed: July 27, 2018
Before: GILMAN, ROGERS, and STRANCH, Circuit Judges.
COUNSEL
ARGUED: Sehla Ashai, CONSTITUTIONAL LAW CENTER FOR MUSLIMS IN AMERICA, Richardson, Texas, for Petitioner. Jessica D. Strokus, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON BRIEF: Sehla Ashai, Kristine Cruz, Pei Yu, CONSTITUTIONAL LAW CENTER FOR MUSLIMS IN AMERICA, Richardson, Texas, for Petitioner. Jessica D. Strokus, Anthony C. Payne, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.
The court delivered a PER CURIAM opinion in which ROGERS, J., joined in Parts I, II.A, and II.B. ROGERS, J. (pp. 25–28), delivered a separate opinion dissenting from Parts II.C and II.D. of the majority opinion.
PER CURIAM. Four years ago, Petitioner came to the United States on a K-1 fiancé visa, using a Syrian passport. Although he was a Syrian citizen, his family had fled Syria decades ago to escape persecution. Petitioner therefore had difficulty obtaining a passport from a Syrian consulate in the usual manner, and he instead relied on his father to get a passport for him through unknown contacts in Syria. As it would turn out, however, this was a mistake. The passport was not legitimate; it had been stolen from the Syrian government while blank, and Petitioner’s biographical information was later inscribed without official approval.
When U.S. immigration officials learned of this, they initiated removal proceedings. An immigration judge (“IJ”) concluded that Petitioner wаs removable, but granted withholding of removal and asylum based on the risk of religious persecution that Petitioner would face if removed to Syria. The IJ also granted him a waiver of removal under
Petitioner now seeks review of the BIA’s decision. As explained below, the Board’s discretionary denial of asylum amounted to an abuse of discretion because the Board unreasonably applied its own binding precedent. That precedent dictates that asylum may not be denied solely due to violations of proper immigration procedures, and also that the danger of persecution—which all agree exists in this case—should outweigh all but the most egregious countervailing factors. As for the waiver, by statute courts are generally deprived of jurisdiction to review discretionary determinations such as the denial of a waiver under
I.
Petitioner is a citizen of Syria, but he has never set foot in that country. His parents, Sunni Muslims, fled Syria before he was born to escape violence and persecution by the regime of Hafez al-Assad. Petitioner was born in Iraq, but grew up in Yemen, where the family had moved to avoid the First Iraq War. In Yemen, Petitioner‘s father found work as a doctor. The family was able to obtain temporary residency status, but this was derivative of the father‘s work residency and had to be renewеd with increasing frequency. While living in Yemen, Petitioner obtained a bachelor‘s degree in computer engineering from a university in Sana‘a. In 2011, however, the political situation in Yemen deteriorated. With the country headed toward revolution, Petitioner left for Turkey. He entered Turkey using a Syrian passport, obtained for him by his father, which was the predecessor of the passport at issue in this case. Petitioner testified that he had “no idea” where his father went to get this passport, but he believed it to be valid.
When Petitioner decided to pursue marriage, he sought his mother‘s advice on a suitable match. She suggested his cousin, Asma Alhaider, who is a United States citizen. Alhaider was born in the U.S. and has lived her whole life here; she graduated from an American university and works as an elementary school teacher in the Detroit area. Alhaider and Petitioner communicated electronically for about three years and then, in 2012, Alhaider traveled to Turkey to get to know Petitioner in person. They soon became formally engaged.
Alhaider and Petitioner then began the process of applying for a fiancé visa that would allow him to travel to the United States so they could be married.1 See
Because Petitioner‘s Syrian passport was due to expire soon, he set about acquiring a new one to ensure passage to the U.S. He obtained this second passport just as he had the first one: through his father. According to Petitioner, his father would not divulge how he obtained the passport, but instead told Petitioner
Using his new Syrian passport, Petitioner obtained a fiancé visa from the U.S. consulate in Ankara, Turkey. He then traveled to the United States, arriving on January 26, 2014. Upon arrival, he presented his new Syrian passport to immigration officials and was allowed to enter the country. Thereafter, he and Alhaider were married. In July of that year, Petitioner applied for and received an adjustment of status to that of a conditional permanent resident. See
On December 12, 2015, the Department of Homeland Security (“DHS”) learned that Petitioner might have entered the U.S. using a stolen blank passport. Petitioner was interviewed by federal agents twice at his home in January 2016, and he voluntarily turned over the passport for examination. Petitioner then left the U.S. on a planned trip to see family in Turkey, returning several weeks later on February 6, 2016. During this trip, he asked his father (now living in Turkey) about the passport, but his father refused to reveal from whom he had obtained it for fear of endangering that person. When Petitioner arrived back in the U.S., hе was interviewed about the passport again. He explained that he had not completed his mandatory military service in Syria, and so he knew that the Syrian consulate would not issue him a passport. With the benefit of the information recently obtained from his father, he told agents that his father had gotten the passport from an unknown, well-connected person in Syria who could bypass official channels.
The Government initiated removal proceedings on February 24, 2016, filing a Notice to Appear that contained three charges of removability under
Petitioner appeared with counsel for three hearings in June and July of 2016. At these hearings, the IJ heard testimony from Petitioner, Alhaider, Petitioner‘s aunt (who is also Alhaider‘s mother and thus Petitioner‘s mother-in-law), a DHS forensic document examiner who had examined Petitioner‘s passport and determined it to be a stolen blank, and the U.S. Citizenship and Immigration Services officer who had processed Petitioner‘s application for adjustment of status. The relevant substance of this testimony has been related above. Additionally, Petitioner offered expert testimony from Professor Keith David Watenpaugh of the
University of California, Davis, who explained that Syrians living in exile often have difficulty getting passports, and that they might view Syrian consulates as “enemy territory” and therefore avoid consulates for fear of placing themselves and their families at risk. He further testified that the practice of purchasing forged passports or bribing government officiаls to obtain passports is widely accepted among Syrians living in exile.
The IJ issued his decision on September 12, 2016. The IJ sustained all three charges of removability and denied CAT protection. But he granted Petitioner a waiver of removal under
The IJ granted Petitioner a waiver of removal under
Application of the waiver is thus a two-step process. First, the alien must meet the above requirеments simply to be eligible for the waiver. Second, the Attorney General must determine that, in his discretion, the waiver should be granted. See Singh v. Gonzales, 451 F.3d 400, 410–11 (6th Cir. 2006).
Here, the IJ concluded that, when Petitioner initially entered the U.S., he was not in possession of an immigrant visa as required by the waiver statute, because at that time he had only a nonimmigrant fiancé visa, which, the IJ determined, was not an “immigrant visa or equivalent document.” However, the IJ held that Petitioner did qualify for the waiver at the time he adjusted his status (which counts as an “admission” for purposes of the statute). See Matter of Agour, 26 I. & N. Dec. 566, 570 (BIA 2015). The IJ then concluded that, under our decision in Avila-Anguiano v. Holder, 689 F.3d 566, 570 (6th Cir. 2012), even though Petitioner qualified for the waiver only with respect to his later adjustment of status and not his initial entry into the country, he could still use it to waive his earlier misrepresentation made when he first entered the U.S.
The IJ next held that Petitioner deserved the waiver as a matter of discretion. Petitioner’s misrepresentation was “not . . . particularly egregious,” because the passport appeared valid even to trained immigration officials, and Petitioner had no reason to suspect that it had been stolen from the Syrian government. There was “no other evidence that [Petitioner] is an individual of bad charactеr,” and the IJ found that any suggestion of a connection between Petitioner and ISIL was merely “unsubstantiated suspicion.” Additionally, the IJ reasoned that Petitioner was deserving of the waiver because it would help him stay with Alhaider, who is a U.S. citizen, it would remove him from his former life of statelessness, and it would prevent Petitioner from being sent to a country he had never lived in that was enduring a violent civil war.
The IJ also granted Petitioner asylum. See
Finally, the IJ granted withholding of removal because Petitioner had demonstrated a “clear probability” that he would face harm in Syria on account of his religion. See INS v. Stevic, 467 U.S. 407, 413 (1984); see also
The Government appealed, and the BIA affirmed the grant of withholding but reversed the IJ’s grants of the
Petitioner failed to get clarification from his father about the passport‘s origins, even though there is evidence that it might have been stolen by a terrorist organization. In the Board‘s view, these negative factors outweighed the positive factors that Petitioner was married to a U.S. citizen, he enjoyed a close relationship with his U.S. citizen in-laws, he had no criminal history, he volunteered, was highly educated, and performed skilled labor in the technology field. The Board also reasoned that concerns about breaking up Petitioner‘s family unit were lessened because Alhaider testified that she would go with Petitioner if he were deported to Syria, and that the humanitarian concerns about sending Petitioner to live in Syria were lessened because the Board affirmed the IJ‘s grant of withholding, so Petitioner was not in imminent danger of removal to that country.
The BIA also denied asylum, first because Petitioner was not eligible for asylum due to his being “firmly resettled” in Yemen, see
The BIA‘s decision was issued on May 17, 2017. The case was remanded to the IJ. On June 12, 2017, the IJ entered an order of removal, ordering Petitioner to be removed to Syria but also granting withholding of removal. On June 15, 2017, Petitioner petitioned this court to review the BIA‘s denials of his applications for the waiver and asylum.
II.
A.
As a preliminary matter, the Government contends that we lack jurisdiction over Petitioner‘s entire petition for review because he failed to attach a copy of the IJ‘s June 12, 2017, final order of removal to the petition. This argument has two components. First, the Government notes that we have jurisdiction to review only “a final order of removal.”
We need not reach the Government‘s second argument—that we lack jurisdiction to review the IJ‘s June 12 order because it was not attached to the petition for review-because that was not the only final order of removal in this case. The immigration statute defines “order of deportation,” which is interchangeable with “order of removal,”4 as “the order of the special inquiry officer, or other such administrative officer to whom the Attorney General has delegated the responsibility for determining whether an alien is deportable, concluding that the alien is deportable or ordering deportation.”
order rejecting an asylum application is not a final order unless a formal order of deportation has already been issued.”). Because Petitioner has clearly petitioned for review of that final order of removal, our jurisdiction is not affected by Petitioner’s failure to attach the IJ’s June 12 order to his petition.
B.
Petitioner challenges the BIA’s denial of his claim for asylum. Asylum is a discretionary form of rеlief: the asylum statute provides that “the Attorney General may grant asylum to an alien” who meets certain eligibility requirements.
Here, the BIA abused its discretion because it unreasonably applied its own precedential legal decisions that govern how the Board may exercise that discretion. The Board’s analysis identified only one factor counting against Petitioner: his intentional failure to disclose that his passport was obtained in a non-traditional manner. On the opposite side of the balance, the Board identified several positive factors: Petitioner’s wife is a U.S. citizen and he has a close relationship with his in-laws, also U.S. citizens; he has no criminal history; he volunteers; he is highly educated; and he performs skilled labor in the technology field. The Board’s analysis thus boils down to the conclusion that Petitioner’s failure to disclose the uncertain origins of his passport on its own outweighed the litany of factors cutting in his favor.
This runs afoul of the BIA’s precedential decision in Matter of Pula, 19 I. & N. Dec. 467 (BIA 1987). There, the BIA concluded that “the totality of the circumstances . . . should be examined in determining whether a favorable exercise of discretion is warranted,” and in
particular that an alien’s circumvention of proper immigration procedures could not be a sole dispositive factor against the alien’s claim, and “should not be considered in such a way that the practical effect is to deny relief in virtually all cases.” Id. at 473; see also Kouljinski v. Keisler, 505 F.3d 534, 542 (6th Cir. 2007). Although such circumvention may be taken into account as a “serious adverse factor,” it must be considered as just one factor in the “totality of the circumstances.” Pula, 19 I. & N. Dec. at 473. In other words, although the BIA may consider an alien’s failure to comply with established immigration procedures, it may not do so to the practical exclusion of all other factors. Here, Petitioner certainly should have been more forthcoming with immigration officials. But under Pula, the Board’s analysis may not begin and end with his failure to follow proper immigration procedures. See Zuh v. Mukasey, 547 F.3d 504, 511 n.4 (4th Cir. 2008) (citing Pula and noting that “the presence of immigration law violations” is a relevant factor, but “the BIA has cautioned against affording it too much weight”).6
BIA precedent also holds that “[t]he danger of persecution will outweigh all but the most egregious adverse factors.” Matter of Kasinga, 21 I. & N. Dec. 357, 367 (BIA 1996); see also Kouljinski, 505 F.3d at 542. In affirming the IJ’s grant of withholding in this case, the BIA upheld the IJ’s conclusion that Petitioner had shown “a clear probability that his life or freedom will be threatened on account of his Sunni religion if returned to Syria.” Because the “clear probability” standard requires a showing that harm is “more likely than not” to result from removal, Kamar v. Sessions, 875 F.3d 811, 817 (6th Cir. 2017) (quoting Stevic, 467 U.S. at 429–30), the BIA acknowledged that it is more likely than not that Petitioner would face harm due to his religion if
in the usual manner. This cannot be reasonably termed the “most egregious” of adverse factors. In this respect, too, the BIA unreasonably applied its own binding precedent.
In a similar vein, BIA precedent dictates that, because Petitioner made misrepresentations to circumvent orderly refugee procedures, “the seriousness of the [misrepresentations] should be considered.” Pula, 19 I. & N. Dec. at 474. The BIA‘s opinion does not show that it evaluated Petitioner‘s misrepresentations on a sliding scale of seriousness. The Board noted only that Petitioner remained “willfully blind” to the passport‘s origins and that he intentionally failed to disclose this fact to immigration officials. This does not appear to be an overly serious misrepresentation. Indeed, the IJ found that Petitioner‘s misrepresentations were not “particularly egregious,” given that the passport appeared valid and there was “little if any” reason for him to believe it was stolen. If the BIA disagreed and believed this was in fact a serious kind of fraud, it should have said so and explained why. The BIA‘s apparent failure to consider the relative seriousness of Petitioner‘s fraud is another way in which the Board unreasonably applied its precedent to this case.
The BIA‘s unreasonable application of these precedential legal decisions was an abuse of discretion. By regulation, the BIA must follow its own precedents unless they are modified or overruled.
Moreover, this is not the type of case where asylum is typically denied. Although not a hard-and-fast rule, we have previously observed that “[t]he grounds upon which asylum can be discretionarily denied to an otherwise-eligible applicant appear in practice to be limited to cases of ‘egregious conduct by the applicant,’ such as criminal convictions or fraud.” Marouf, 811 F.3d at 180 (quoting Zuh, 547 F.3d at 507). For instance, in Kouljinski, we held that the IJ “did not abuse his discretion . . . by basing his discretionary denial of asylum on Kouljinski‘s three drunk-driving convictions.” 505 F.3d at 543. But here, Petitioner has no criminal convictions, and although he certainly made misrepresentations by failing to disclose his passport‘s murky origins, the IJ did not find that these misrepresentations amounted to fraud. Furthermore, as the Fourth Circuit has noted in a similar case, it is quite uncommon to deny asylum as a matter of discretion when withholding of removal has been granted. Zuh, 547 F.3d at 507-08.
C.
Apart from the BIA‘s discretionary denial, the BIA determined that Petitioner was not eligible for asylum because he was firmly resettled in Yemen. See
The Board appears to have applied the proper framework for evaluating the firm-resettlement question, and the Government does not explain how the Board‘s statement of the governing law was improper or “unclear.” We deem the Government‘s failure to respond to Petitioner‘s argument that the Board erred in finding him firmly resettled in Yemen to be a concession that the Board‘s decision was not supported by “substantial evidence.” See id.; Puckett v. Lexington-Fayette Urban County Gov‘t, 833 F.3d 590, 611 (6th Cir. 2016) (“The failure to present an argument in an appellate brief waives appellate review.” (quoting Middlebrook v. City of Bartlett, 103 F. App‘x 560, 562 (6th Cir. 2004))). Accordingly, with respect to Petitioner‘s asylum claim, the BIA‘s sole task on remand is to exercise its discretion in acсordance with its governing precedent.
D.
Petitioner also challenges the BIA‘s denial of a waiver under
1.
We will initially consider whether there is a basis for the BIA to revisit its discretionary denial of a
But Petitioner argues that an exception applies in this case that provides jurisdiction. He bases his argument on
The BIA accurately stated in Petitioner‘s case that its review of the IJ‘s factual findings was governed by the clear-error standard. But Petitioner contends that the BIA actually based its decision on different
Although some circuits have interpreted
Noting that “BIA review under an incorrect standard of review implicates [petitioners‘] due process rights,” this court held in Tran that it had jurisdiction under
Tran demonstrates that whether the BIA employed the correct standard of review is among the “constitutional claims and questions of law” that
This holding is in accord with comparable decisions from our sister courts. See, e.g., Kaplun v. Att’y Gen. of U.S., 602 F.3d 260, 272–73 (3d Cir. 2010) (remanding a BIA decision denying CAT relief because, “even though the BIA purported ‘not [to] find facts [itself,]’ . . . it appears that the BIA reexamined the record and conducted de novo fact-finding” (alterations in original) (quoting Matter of V-K-, 24 I. & N. Dec. 500, 502 (BIA 2008))); Kabba v. Mukasey, 530 F.3d 1239, 1246, 1249 (10th Cir. 2008) (remanding a BIA decision denying withholding of removal and other relief because, “[a]lthough the BIA’s opinion set forth the correct standard of review . . . , it instead engaged in its own fact finding in violation of § 1003.1(d)(3)(i)”)).
Having concluded that we possess jurisdiction to determine whether the BIA applied the proper standard of review, we will next examine whether the Board in fаct applied the clear-error standard to the IJ’s factfinding in Petitioner’s case. Petitioner
First, Petitioner argues that the BIA engaged in de novo factfinding by stating that Petitioner “intentionally withheld” from authorities that he had “obtained [his passport] in a non-traditional manner” and “remained willfully blind as to its origins.” The IJ did find that Petitioner “attempt[ed] to remain willfully blind to the passport application process” and “knew that the document was obtained in a non-traditional (if not improper) manner.” But the IJ also found that Petitioner “believed [that the passport] was being acquired in the usual manner for a Syrian citizen opposed to the government and a member of a family living in exile,” and that he had “little if any reason . . . to suspect that [the passport] was a ‘stolen blank’ document.” Without engaging in clear-error analysis, the Board failed to mention these critical facts that greatly temper the IJ’s findings about Petitioner’s willful blindness to the passport’s origins.
Moreover, the IJ never found that Petitioner had “intentionally withheld” his knowledge of the non-traditional manner in which his passport was acquired. Aliens are removable under
presented to an immigration officer,” and (2) the “fact was material.” Bazzi v. Holder, 746 F.3d 640, 645 (6th Cir. 2013) (quoting Parlak, 578 F.3d at 463–64). The IJ held that Petitioner committed a willful misrepresentation of a material fact because he knew and failed to disclose that his passport had been acquired by non-traditional means, which was a material omission because its disclosure would have prompted more careful scrutiny of his passport. But because Petitioner had “little if any reason to suspect that [the passport] was a ‘stolen blank’ document” and believed that it had been “acquired in the usual manner for a Syrian citizen opposed to the government and a member of a family living in exile,” the IJ did not find that Petitioner‘s actions constituted fraud.
Second, Petitioner contends that the BIA conducted its own faсtfinding by faulting Petitioner for failing, along with his father, to “explain[] how the passport was actually obtained,” despite the supposed possibility that the “passport may have been trafficked by terrorists.” The IJ was highly critical of the Government‘s invocation of ISIL during the proceedings before him. Although Petitioner‘s passport contained a serial number that falls within a range of passports that the International Police Organization (INTERPOL) reports were stolen by ISIL and another terrorist organization, the IJ dismissed “the Government‘s allusions that [Petitioner] may have some connection to [ISIL]” as an “unsubstantiated suspicion of national security implications.”
The BIA‘s resuscitation of fears concerning Petitioner‘s connections to ISIL runs contrary to the IJ‘s findings. Although the Board cabined its discussion of ISIL to a suggestion of a nexus between the passport and the terrorist organization (rather than Petitioner himself and ISIL), it held this fact against Petitioner when exercising its discretion to deny him a
Third, Petitioner faults the BIA for finding that he “does not know whether his father obtained the passport through bribery or other improper means” and that he never “got clarification from his father[,] . . . remain[ing] willfully blind in this regard.” To the contrary,
the IJ did not find that Petitioner remained willfully blind to the passport‘s origins after he became aware that he possessed a fraudulent passport. Petitioner indeed confronted his father about the passport during a return trip to Turkey after his second interview with immigration authorities. The IJ found, however, that Petitioner‘s father “did not and would not reveal how the passport had actually been obtained” for fear that “doing so would endanger the individual in Syria who helped him obtain” the document. Based on the IJ‘s findings, Petitioner cannot be said to have remained willfully blind to the passport‘s origins because he attempted to secure more information once immigration authorities determined that the passport was fraudulent.
Finally, Petitioner argues that the BIA, based on its own factfinding, discounted a critical factor that should have weighed in favor of granting him a
Judging from the multiple instances in which the BIA‘s decision finds facts contrary to the IJ, omits key facts that temper other findings, or discusses facts in a misleading light, the Board violated
2.
Having concluded that the BIA must exercise its discretionary authority once again if Petitioner is statutorily eligible for a
The provisions of this paragraph relating to the removal of aliens within the United States on the ground that they were inadmissible at the time of admission as aliens described in section 1182(a)(6)(C)(i) of this title [which renders inadmissible aliens who procure a visa or admission by “fraud or willfully misrepresenting a material fact“], whether willful or innocent, may, in the discretion of the Attorney General, be waived for any alien ... who—
(i)(I) is the spouse, parent, son, or daughter, of a citizen of the United States or of an alien lawfully admitted to the United States for permanent residence; and
(II) was in possession of an immigrant visa or equivalent document and was otherwise admissible to the United States at the time of such admission except for those grounds of inadmissibility specified under paragraphs (5)(A) and (7)(A) of section 1182(a) of this title which were a direct result of that fraud or misrepresentation.
. . . .
A waiver of removal for fraud or misrepresentation granted under this subparagraph shall also operate to waive removal based on the grounds of inadmissibility directly resulting from such fraud or misrepresentation.
Thus, to be eligible for the waiver, Petitioner must (among other things) have been “in possession of an immigrant visa or equivalent document” at the time of his admission into the U.S. Here, there are two separate “admissions” that are relevant. First, Petitioner was admitted to the U.S. when he initially came to the country in January 2014. Second, another admission occurred when he adjusted his status to that of a lawful permanent rеsident. See Matter of Agour, 26 I. & N. Dec. 566, 570 (BIA 2015).
The BIA concluded that Petitioner’s inadmissibility at the time of his first admission could not be waived because, at the time of that admission, he was not in possession of an immigrant visa or equivalent document. The BIA reasoned that, when he was first admitted, Petitioner did not have an “immigrant visa” because he had only a fiancé visa, and aliens seeking to enter the country on fiancé visas are classified as nonimmigrants. See
Petitioner concedes that fiancé visas are not immigrant visas, but argues that they are an equivalent because the BIA treats fiancé visa holders like immigrant visa holders in some ways. The BIA is correct, however, that the additional hurdles a fiancé visa holder must clear in order to become a lawful permanent resident distinguish fiancé visas from immigrant visas. Thus, as the Ninth Circuit has held, see Caddali v. INS, 975 F.2d 1428, 1431 (9th Cir. 1992), a fiancé visa is not “equivalent” to an immigrant visa. Moreover, even if this questiоn of statutory interpretation were fairly debatable, we would still give Chevron deference to the BIA’s reasonable answer. See Reyes v. Lynch, 835 F.3d 556, 559 (6th Cir. 2016).
Petitioner (and the IJ) advance a more complicated alternative argument: they say that, even if Petitioner did not actually have an immigrant visa or equivalent document upon his first admission into the country, he nonetheless met all the requirements
To make this argument, Petitioner relies on our decision in Avila-Anguiano v. Holder, 689 F.3d 566 (6th Cir. 2012). But that case is different, as the BIA explicitly reasoned. Avila-Anguiano, a Mexican national, attempted to enter the United States on two separate occasions. When he first arrived at the border in 1991, he falsely claimed to be a U.S. citizen. Border inspectors, however, did not fall for the ruse, and he was not only refused entry, but also convicted of making a false claim of citizenship. Id. at 567. When he entered the United States again in 1993, he was granted a visа after failing to disclose his earlier conviction. Id. at 567–68. The Government later sought to remove him, contending that he was inadmissible under
We held that the waiver could cure all the misrepresentations that rendered Avila-Anguiano inadmissible at the time of his sole admission in 1993, including his earlier 1991 misrepresentation. Id. at 569. Crucially, however, we focused only on whether he met the eligibility requirements for the waiver with respect to his single admission in 1993, not whether he also met those requirements at the time he made his first misrepresentation in 1991. See id. at 568. The situation in Avila-Anguiano is distinguishable from the facts of this case because here Petitioner was admitted to the United States twice. Thus, although we held in Avila-Anguiano that two misrepresentations may be waived when they each render an alien inadmissible for purposes of the same admission, that case did not answer the question posed here: whether a waiver of inadmissibility with respect to one admission may be used to cure inadmissibility at the time of another admission.
The BIA answered this question in the negative, concluding that “the same fraud or misrepresentation may be waived for two separate ‘admissions’ only if ‘the other requirements of [§ 1227(a)(1)(H)] are met” (quoting Avila-Anguiano, 689 F.3d at 569). So far as it goes, we find the Board‘s analysis sound. Whereas the Government contended in Avila-Anguiano that the petitioner was ineligible for a waiver based on a single admission and two connected misrepresentations, here, the Government argues that two separate admissions (Petitioner‘s initial entry into the country and his adjustment of status) preclude him from obtaining a waiver because of misrepresentations that he made during each admission. Although Petitioner is eligible for a waiver of removal based on his adjustment of status, argues the Government, he is ineligible for a second standalone waiver of removal based on his
The BIA‘s analysis, however, omits any discussion of the final paragraph of
Assuming that the BIA were to grant Petitioner a waiver of removal based on his adjustment of status, the sole remaining basis for his removal would be his misrepresentation about the origins of his passрort during his initial entry. In other words, he would continue to be removable only because of the legal consequences that “directly result[]” from the sole misrepresentation at issue in this case—Petitioner‘s failure to notify the authorities that his passport had been acquired in a non-traditional manner. See id. A waiver of removal based on Petitioner‘s adjustment of status could therefore, on a derivative basis, also waive his removal based on the earlier misrepresentation. See Vasquez v. Holder, 602 F.3d 1003, 1015 (9th Cir. 2010) (holding that an alien‘s commission of marriage fraud in order to gain entry to the United States “result[ed] directly” in the termination of her conditional permanent residency and that her removal based on the termination of her conditional permanent residency was therefore also eligible for a waiver). Accordingly, we hold that Petitioner is statutorily eligible for a
In doing so, we acknowledge that this is a somewhat paradoxical outcome. Had the Government initiated removal proceedings against Petitioner after he had entered the United States, but before he had adjusted his status, he would not have been eligible for a
III.
The petition for review is granted and the case is remanded to the BIA for further proceedings consistent with this opinion.
DISSENT
ROGERS, Circuit Judge, concurring in part and dissenting in part. I join parts I, II.A, and II.B of the court‘s opinion, but I respectfully dissent with respect to Parts II.C and II.D.
We have no business exercising jurisdiction to review the discretionary aspect of
Instead, the exception in
Relying on the Second Circuit‘s opinion in Chen v. U.S. Dep‘t of Justice, 434 F.3d 144 (2d Cir. 2006), this court defined
§ 1252(a)(2)(D) to include “constitutional and statutory-construction questions, not discretionary or factual questions” in Almuhtaseb, 453 F.3d at 748. Thus, a petitioner cannot create jurisdiction by alleging “nothing more than a challenge to the [BIA‘s] discretionary and fact-finding exercises cloaked as a question of law[.]” Abdul v. Holder, 326 F. App‘x 344, 347 (6th Cir. 2009) . . . . After this court decided Almuhtaseb, the Second Circuit revised Chen to expand its
definition of “question of law.” Chen v. U.S. Dep‘t of Justice (Chen II), 471 F.3d 315, 326–27, 329 (2d Cir. 2006) . . . . Since Chen II, a circuit split has emerged over whether that term includes only issues of statutory construction and interpretation or also includes mixed questions of law and fact. . . . This court, however, expressly has declined to expand its definition of “question of law” to include mixed questions of law and fact. Khozhaynova, 641 F.3d at 192 (“We continue to maintain a more narrow interpretation of our jurisdiction . . . and limit review to constitutional or statutory interpretation claims.“).
768 F.3d 453, 462 n.17 (6th Cir. 2014) (emphasis added, brackets in original). As Rais indicates, in Khozhaynova, 641 F.3d at 192, we rejected a request to apply Ninth and Second Circuit precedents that were inconsistent with Almuhtaseb, and instead reaffirmed Almuhtaseb‘s narrower interpretation of
In an analogous case, we held that the exception allowing review for legal issues does not apply when the purported “legal issue” is whether one set of facts is similar to or different from the facts in agency precedent. Ettienne v. Holder, 659 F.3d 513, 518 (6th Cir. 2011). As we said in Ettienne, “this court lacks jurisdiction over claims that can be evaluated only by engaging in head-to-head comparisons between the facts of the petitioner‘s case and those of precedential decisions.” Id. In Ettienne, the petitioner argued that the BIA had a legal obligation to comply with its own precedent requiring it to consider certain hardship factors in their totality, and that we had jurisdiction to consider whether the BIA had done so. Id. at 517. We held that we lacked
jurisdiction, however, because Ettienne’s challenge amounted to a request to second-guess the BIA’s weighing of the factors in her particular case. Id. at 518. This, we concluded, was beyond the limited scope of the exception for legal questions because if the exception were so expanded, it would effectively negate Congress’s command that such factual and discretionary decisions—аs opposed to constitutional or legal decisions—may not be judicially reviewed.
Permitting judicial review here would open virtually all BIA factual determinations to judicial review, contrary to the clear intent of Congress. As we explained in Almuhtaseb, “the purpose of
Moreover, this is not a case in which the BIA has purported to apply an incorrect legal standard. In Ettienne we distinguished cases in which there was jurisdiction to review whether the BIA had identified the correct legal rule at all. See id. at 517–18 (discussing Figueroa v. Mukasey, 543 F.3d 487, 496 (9th Cir. 2008), and Perez-Roblero v. Holder, 431 F. App’x 461, 466–68 (6th Cir. 2011)). In particular, Petitioner’s case is not like Tran v. Gonzales, 447 F.3d 937 (6th Cir. 2006), in which we concluded that a reviewable question of law was presented when “[t]he BIA’s decision never stated the standard of review that it employed . . . and its treatment of Tran’s claims d[id] not make it evident to th[e] Court what standard of review the BIA employed.” Id. at 943–44. Here, as in Ettienne (and in contrast to Tran), there is no doubt that the BIA identified the right legal standard. The BIA plainly stated the correct legal rule when it said in its decision that it would “review findings of fact determined
Petitioner is therefore left to argue that the Board erred in its application of this rule to the facts found by the IJ. But just as there was not jurisdiction in Ettienne to review the Board’s weighing of the factors in Ettienne’s case, so too here there is not jurisdiction to examine how the Board applied the correctly identified legal rule to the facts found by the IJ.
For these reasons, we lack jurisdiction to review the discretionary component of the BIA’s denial of the waiver. I need not reach the question of Petitioner’s statutory eligibility for the waiver.
Finally, with respect to Part II.C, we should not play “Gotcha!” when thе Government has agreed to a remand to an agency to reconsider a decision using the correct standard. The Government’s brief before this court contends that a remand is necessary to “clarify the standard [the Board] used in making its firm resettlement determination,” and we may accept such a government concession to permit further consideration by the agency below. See Citizens Against the Pellissippi Parkway Extension, Inc. v. Mineta, 375 F.3d 412, 416–17 (6th Cir. 2004). The Board on remand should be permitted to consider the firm-resettlement issue using the proper standard, and nothing precludes us from allowing the Board to do so.