Osmani v. Garland
| Decision Date | 24 January 2022 |
| Docket Number | No. 20-3318,20-3318 |
| Citation | 24 F.4th 617 |
| Parties | Ilir OSMANI, Petitioner, v. Merrick B. GARLAND, Attorney General of the United States, Respondent. |
| Court | U.S. Court of Appeals — Seventh Circuit |
In 2019, the Department of Homeland Security ("DHS") sought to remove Ilir Osmani, a refugee of the Kosovo War, based on his criminal convictions and crimes of moral turpitude. An Immigration Judge ("IJ") granted Osmani's petition for an adjusted status under 8 U.S.C. § 1159(a) and for waiver under 8 U.S.C. § 1159(c). The Board of Immigration Appeals ("BIA") reversed the IJ's ruling based on new arguments the government, after failing to take any position before the IJ or to provide any notice to Osmani, raised for the first time on appeal and denied Osmani's motion to remand for additional fact finding on the conditions in Kosovo.
We find the BIA legally erred by considering arguments the government did not present to the IJ, put Osmani on notice of, or develop any record evidence to support. In denying Osmani's motion to remand, the BIA also abused its discretion by engaging in impermissible fact finding. Accordingly, we grant Osmani's petition for review and remand to the BIA.
Petitioner Ilir Osmani, a native of the former Yugoslavia, fled the Kosovo War and was admitted to the United States as a refugee on June 25, 1999. Osmani was convicted for possession of illegal narcotics in 2019. On December 23, 2019, shortly after his release from jail on the narcotics conviction, DHS detained Osmani and placed him into removal proceedings. The government sought to remove Osmani to Kosovo based on a prior conviction for aggravated felony theft, see 8 U.S.C. § 1227(a)(2)(A)(iii), commission of two or more crimes involving moral turpitude, see 8 U.S.C. § 1227(a)(2)(A)(ii), and his narcotics conviction, see 8 U.S.C. § 1227(a)(2)(B)(i).
The Immigration and Nationality Act ("INA") permits refugees to petition for legal permanent resident status. 8 U.S.C. § 1159. Osmani applied to adjust his status to legal permanent resident under 8 U.S.C. § 1159(a) on April 1, 2020. Aliens convicted of certain crimes, such as those involving moral turpitude or for violating narcotics laws, are ineligible for visas or admission into the United States. 8 U.S.C. §§ 1182(a)(2)(A)(i)(I), (II). Osmani's prior convictions rendered him ineligible for adjustment. See id. For refugees seeking an adjusted status, however, the INA empowers the DHS or the Attorney General to waive bases of inadmissibility under §§ 1182(a)(2)(A)(i)(I), (II) "for humanitarian purposes, to assure family unity, or when it is otherwise in the public interest." 8 U.S.C. § 1159(c). Osmani simultaneously sought a waiver of the grounds of inadmissibility under 8 U.S.C. § 1159(c). In support of his applications, Osmani submitted a pre-hearing statement, secondary sources detailing the conditions in Kosovo, and various affidavits, including those of his mother, brother-in-law, and psychologist, whom he also moved to present as live witnesses. Specific to his humanitarian argument, Osmani claimed he had no ties or documentation linking him to Kosovo, would be unable to support himself if removed, and was a member of a persecuted ethnic minority. The government neither submitted a pre-hearing statement nor espoused a position on Osmani's applications.
The Immigration Court held removal proceedings on May 12, 2020. Osmani testified to, and was cross-examined on, his family connections, drug use, and criminal history. Osmani did not testify about Kosovo or his related concerns. After confirming neither party had additional questions for Osmani, and before Osmani's mother, brother-in-law, or psychologist were presented for live testimony, the IJ informed Osmani he "d[id]n't really want to hear any additional evidence." The government responded "no" when the IJ asked if "there [was] anything the Government need[ed] to hear additionalwise [sic ] [.]" The IJ then terminated any further development of the record, found the equities weighed in Osmani's favor, and orally granted Osmani both a § 1159(a) adjustment and a § 1159(c) waiver. In his oral decision, the IJ cited Osmani's history of drug use, theft, domestic battery, and active protective order. Against these factors the IJ balanced Osmani's relationship with his family and Post-Traumatic Stress Disorder
stemming from his childhood in Kosovo. Although Osmani submitted documents describing the current conditions in Kosovo, the IJ did not address this basis for waiver. This gap is likely the product of the IJ's readiness to rule before reaching such evidence during the hearing and its decision to terminate development of the record. Ultimately the IJ determined the equities weighed in favor of awarding a waiver and adjustment of status based on Osmani's "incredibly strong family ties in the United States and the nature of his criminal history." Without articulating a basis, the government reserved the right to appeal the IJ's decision.
After failing to take any position before the IJ, the government appealed the IJ's ruling on June 5, 2020, on two grounds. First, Osmani's family ties were insufficient to meet the statutory grounds for a waiver based on family unity under 8 U.S.C. § 1159(c). Second, the balance of equities disfavored awarding Osmani an adjustment and waiver under 8 U.S.C. §§ 1159(a) and 1159(c), respectfully. In the event the BIA sustained the government's appeal, Osmani sought remand both to supplement the evidentiary record with testimony of his mother, brother-in-law, and psychologist as well as to permit the IJ to make factual findings on the conditions in Kosovo.
The BIA sustained the government's appeal on November 2, 2020, concluding the equities did not support an adjustment of status and waiver. Based on its consideration of the record evidence in its de novo review, the BIA declined to remand to the IJ to supplement the record, including on the conditions in Kosovo.
Osmani petitioned for review of the BIA's order on December 1, 2020. On April 23, 2021, Osmani was removed to Kosovo.1
Osmani makes three arguments on appeal. First, the BIA failed to consider the IJ's findings regarding Osmani's rehabilitative efforts. Second, the BIA improperly considered arguments raised initially on appeal. Third, the BIA improperly denied remand to allow presentment of live witness testimony and factual findings on the conditions in Kosovo. Because the second and third require remand, we reach only these grounds.
Before turning to the merits, we must first address our jurisdiction over Osmani's petition. Federal courts may review final orders directing removal of an alien. 8 U.S.C. § 1252(a). Where, as here, the alien is "removable by reason of having committed a criminal offense covered in [ §§ 1227(a)(2)(A)(ii)–(iii), 1227(a)(2)(B) ]," 8 U.S.C. § 1252(a)(2)(C), jurisdiction is limited to "constitutional claims or questions of law," 8 U.S.C. § 1252(a)(2)(D). Fuller v. Whitaker , 914 F.3d 514, 519 (7th Cir. 2019).
Osmani raises two questions of law. First, Osmani claims the BIA ignored binding precedent and exceeded the scope of its appellate review by considering arguments the government raised initially on appeal. Both aspects of this argument are subject to our review. See Aparicio-Brito v. Lynch , 824 F.3d 674, 686 (7th Cir. 2016) (); Avila-Ramirez v. Holder , 764 F.3d 717, 722 (7th Cir. 2014) (). Second, Osmani argues the BIA exceeded the scope of its review by engaging in improper factfinding when it declined to remand to the IJ to supplement the evidentiary record on the conditions in Kosovo. We do not need to decide whether Osmani's related claim—the BIA improperly declined to remand to allow the IJ to hear additional, live testimony—raises a cognizable procedural issue (and hence a question of law). The INA permits us to "ensure that the Board consider[ed] all relevant evidence." Joseph v. Lynch , 793 F.3d 739, 741 (7th Cir. 2015) ; see 8 U.S.C. § 1252(a)(D)(2). Given the odd way Osmani's hearing unfolded, however, he never elaborated (or needed to elaborate) on what evidence his mother, brother-in-law, or psychologist would have offered in addition to and beyond that which was already contained in the record. But that is not the central problem before us. It is enough here for us to address the question of whether the BIA considered novel arguments and improperly denied remand.
We review legal questions de novo and, where an agency commits legal error, will generally remand the decision to the agency for proceedings under the correct legal framework. Najera-Rodriguez v. Barr , 926 F.3d 343, 350 (7th Cir. 2019) (); Estrada-Martinez v. Lynch , 809 F.3d 886, 894 (7th Cir. 2015). We review the BIA's decision to deny remand for abuse of discretion and will reverse "only if the Board's decision ‘... rested on an impermissible basis.’ " Meraz-Saucedo v. Rosen , 986 F.3d 676, 681 (7th Cir. 2021) (quoting Alvarez-Espino v. Barr , 959 F.3d 813, 817 (7th Cir. 2020) ).
The BIA has "long held" it "generally will not consider an argument or claim that could have been, but was not, advanced before the Immigration Judge." Matter of W-Y-C-& H-O-B- , 27 I. & N. Dec. 189, 190 (BIA 2018) ; see also Matter of J-J-G- , 27 I. & N. Dec. 808, 814 n.8 (BIA 2020). Regulation obligates the BIA to abide by this practice.
8 C.F.R. § 1003.1(g). Failure to do so warrants remand. See Avila-Ramirez , 764 F.3d at 725.
This case presents a highly unusual procedural posture. The government lost before the IJ, appealed to the BIA, and raised new arguments...
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...586, 586 n.1 (BIA 2015) (explaining that an issue not meaningfully challenged on appeal will be deemed waived); cf. Osmani v. Garland, 24 F.4th 617, 621-22 (7th Cir. 2022) (holding that the Board committed legal error in considering arguments raised by the DHS for the first time on appeal).......