Osmani v. Garland, No. 20-3318 (7th Cir. 2022)
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Osmani fled the Kosovo War and was admitted to the U.S as a refugee in 1999. Osmani was convicted for possession of illegal narcotics in 2019. The government sought to remove Osmani based on a prior conviction for aggravated felony theft, commission of two or more crimes involving moral turpitude, and his narcotics conviction. Osmani sought adjustment of status to legal permanent resident, 8 U.S.C. 1159(a). The bases of inadmissibility may be waived for refugees, 8 U.S.C. 1182(a)(2)(A)(i)(I), (II) “for humanitarian purposes, to assure family unity, or when it is otherwise in the public interest.” 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 took no position on Osmani’s applications.
The IJ granted Osmani an adjustment and waiver, citing Osmani’s relationship with his family and childhood PTSD. Although Osmani submitted documents describing current conditions in Kosovo, the IJ did not address that issue. The BIA agreed that Osmani’s family ties were insufficient to justify waiver and the balance of equities disfavored Osmani, then declined to remand to the IJ to supplement the record, including on conditions in Kosovo. Osmani was removed. The Seventh Circuit remanded. 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 declining to remand, the BIA engaged in impermissible fact-finding.
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