United States Court of Appeals

For the Eighth Circuit 

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No. 18-3618

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Ahmed Shariif Kassim

 Petitioner

v.

William P. Barr, Attorney General of the United States

 Respondent

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Petition for Review of an Order of the

Board of Immigration Appeals

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Submitted: December 11, 2019

 Filed: April 3, 2020

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Before SMITH, Chief Judge, GRASZ and STRAS, Circuit Judges. 

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STRAS, Circuit Judge.

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 
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Board improperly supplanted the immigration judge’s findings with its own. We 

grant the petition for review in part, deny it in part, and remand. 

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 8 U.S.C. § 1182(a)(2)(A)(i)(I) (discussing 

“crime[s] involving moral turpitude”). In fact, when Kassim tried to reenter the 

country after a short trip to Canada, the Department of Homeland Security detained 

him at the border and charged him as removable. 

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 id. § 1159(a), (c). Second, he

requested deferral of removal under the Convention Against Torture. See 8 C.F.R. 

§ 1208.16(c); see also id. § 1208.17. After Kassim initially succeeded on both 

arguments before an immigration judge, the Board reversed and concluded that 

neither form of relief was available. 

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 8 U.S.C. § 1182(a)(2)(A)(i)(I), and the discretionary-relief bar 

“shield[s]” the Board’s discretionary decision to deny a waiver of inadmissibility 

from further review. Waldron v. Holder, 688 F.3d 354, 360 (8th Cir. 2012) (citation 

omitted); see 8 U.S.C. § 1252(a)(2)(B)–(C); see also Brikova v. Holder, 699 F.3d 
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1005, 1008 (8th Cir. 2012) (discussing the criminal-alien bar). On both points, we 

disagree. 

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 8 U.S.C. § 1252(a)(2)(D); see also Mervil v. Lynch, 813 F.3d 

1108, 1109–10 (8th Cir. 2016) (criminal-alien bar); Yohannes v. Holder, 585 F.3d 

402, 405 (8th Cir. 2009) (discretionary-relief bar), and we have already held that 

arguments about the proper application of the Board’s standard of review fit within 

the exception, see Waldron, 688 F.3d at 360. Because those are the only types of 

arguments that Kassim makes, we can consider them.

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, 8 C.F.R. 

§ 1003.1(d)(3)(i); Waldron, 688 F.3d at 360, but it may not find new facts of its own,

8 C.F.R. § 1003.1(d)(3)(iv), even if it is trying to fill gaps in the immigration judge’s 

reasoning, Nabulwala v. Gonzales, 481 F.3d 1115, 1119 (8th Cir. 2007). The same 

is not true of legal and discretionary calls, which receive de novo review. 8 C.F.R. 

§ 1003.1(d)(3)(ii); see also Waldron, 688 F.3d at 360. 

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). 
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A.

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 8 C.F.R. § 1212.7(d) (applying the same standard to waivers under 8 U.S.C. 

§ 1182(h)). To receive the waiver, he had to show, as relevant here, that denying his 

request “would result in exceptional and extremely unusual hardship.” In re Jean, 

23 I. & N. Dec. at 383; see also 8 C.F.R. § 1212.7(d). The immigration judge 

concluded that if he were returned to Somalia, that is what he would face.

1

 

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. 8 U.S.C. § 1159(c); 8 C.F.R. § 1003.1(d)(3)(ii). 

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 

1

The hardship inquiry includes factual, legal, and discretionary questions. 

Whether a person is likely to face hardship is a question of fact, see Jima, 942 F.3d 

at 473; whether the hardship is “exceptional and extremely unusual” is a question of 

law, see Waldron, 688 F.3d at 361; and whether an individual deserves a waiver is 

discretionary, id. at 360. Kassim’s challenge relates to the factual part of the 

hardship inquiry—specifically, the finding that he would likely suffer hardship in 

Somalia.
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could suggest that the Board retreated from what the immigration judge actually 

found: that he “would” face hardship. 

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. 8 C.F.R. § 1208.16(c)(4) (requiring such a finding); see also Jima, 942 

F.3d at 473 (treating the more-likely-than-not finding as a fact question). The closest 

the immigration judge came was a statement that, as a minority-clan member, 

Kassim was “disproportionately” likely to be tortured. But saying that Kassim is 

more likely than others to be tortured is not the same as a finding that he would more 

likely than not suffer torture. As the government conceded at oral argument, there 

is no finding on this point. Oral Arg. at 13:05–14:08. 

2

Nor was the statement that Kassim “minimized his culpability” a new factual 

finding. Rather, it was a response to his attack on the immigration judge’s finding 

that the teenage girls did not consent to Kassim’s sexual advances. The Board did 

nothing wrong by considering and rejecting this argument, even if it could have 

chosen its words more carefully. 
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 In its absence, the Board should have remanded the case to the immigration 

judge to finish the job. See Nabulwala, 481 F.3d at 1118. When it reversed, what it

did instead was treat the wrong finding (the disproportionately-likely finding) as if 

it were the right one (a more-likely-than-not finding). We have disapproved of this 

approach before, and we do so again here. See id. (rejecting as “false” the Board’s 

statement that an immigration judge “correctly found” a necessary fact when the

judge “made no such finding.”). An insufficient finding requires remand, not 

revision.

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 
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this fact, the BIA’s specific references to the hearing testimony indicate the Board 

independently evaluated the hearing evidence to reach its own new factual finding. 

This was legal error. See Waldron v. Holder, 688 F.3d 354, 360 (8th Cir. 2012) 

(explaining “there is a difference between weighing the factual findings of the IJ and 

reweighing the underlying evidence and testimony behind those factual findings to 

reach new factual conclusions”). Footnote 2 of the court’s opinion characterizes the 

BIA’s “minimization of culpability” statement as a response to Kassim’s arguments 

on appeal, but it is not the BIA’s place to fault Kassim for pointing out favorable 

findings of fact by the IJ in his appeal. Consequently, I would find the BIA engaged 

in impermissible fact-finding in its waiver of inadmissibility analysis and reverse on 

this additional basis.

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