Sixth Circuit’s Ruling Vacates Board of Immigration Appeals Decision for Abuse of Discretion

Adding to the growing list of courts ruling on immigration cases this year, the Sixth Circuit Court of Appeals recently vacated a decision by the Board of Immigration Appeals (“BIA”) which reversed an Immigration Judge’s grant of asylum to a Syrian man. The Sixth Circuit held that the Board of Immigration Appeals abused its discretion by relying on facts previously not found credible, and by discrediting evidence on which the Immigration Judge relied to determine the man was not a security threat. This decision sheds light on how the Sixth Circuit may review similar cases in the future, and provides a roadmap for Muslim immigrants who find themselves in similar situations.

In 2014, Mr. Hussam F came to the United States with a K visa, also known as a Fiancée’s Visa. Then, in 2016, something unexpected happened. The Department of Homeland Security (DHS) initiated a removal proceeding against Mr. F. It alleged that his Syrian passport was a “stolen blank passport”, which DHS believed might have connections to ISIS.

In July 2016, Charles Swift and Sehla Ashai of CLCMA represented Mr. F before the Immigration Judge. During the hearing, CLCMA attorneys presented indisputable evidence that Mr. F had a real and credible fear of persecution in Syria. By September 2016, the Immigration Judge granted Mr. F a statutory waiver, asylum, and withholding of removal. The Immigration Judge also decided that DHS’s allegations regarding Mr. F’s link to terrorists were “unsubstantiated.” DHS appealed the case to the Board of Immigration Appeals (BIA), an agency under the Department of Justice. In May 2017, the BIA reversed the Immigration Judge’s ruling. Mr. F’s asylum and statutory waiver were removed, placing him in jeopardy once again.

CLCMA quickly appealed the case to the Sixth Circuit Court of Appeals. CLCMA’s immigration team represented Mr. F in this appeal and argued the case in front of a three-judge panel in March 2018.

CLCMA’s attorneys succeeded.

On July 27, 2018, in a published opinion, the Sixth Court of Appeals reversed the BIA’s ruling and remanded the case back to the BIA. The Court explicitly held that the BIA abused its discretion in denying Mr. F’s asylum and statutory waiver. The Court held that “the BIA’s unreasonable application of “precedential legal decisions was abuse of discretion.” The Court further found that the BIA’s exercise of discretion was based on a distorted recasting of the Immigration Judge’s fact-finding, in violation of its statutory obligation to accept the Immigration Judge’s factual determinations unless they are clearly erroneous.

The decision is significant not just for asylum seekers but for all immigrants. Historically, federal appellate courts have permitted the BIA to exercise its discretion broadly. However, this case proves that there are limitations on the BIA’s discretion, with its holding that the BIA cannot act “unreasonably” in exercising discretion, and further recognizing the appellate courts’ role as a “goalkeeper” to prevent the unreasonable exercise of executive authority.

Since coming to power, the Trump administration and the Department of Justice have sought to wield discretion as a weapon against would-be asylum seekers to curtail the flow of immigrants whom they consider to be undesirable. In the face of this effort, the Sixth Circuit’s ruling preserves the power of Immigration Judges to ensure qualified individuals receive the immigration benefits to which they are entitled, without the threat of discriminatory denials cloaked in a veil of discretion.

If you’d like to listen to the oral argument presented by CLCMA’s attorneys, you may find it here.